HL Deb 25 February 1981 vol 417 cc1114-41

7.16 p.m.

Baroness Wootton of Abinger

My Lords, I beg to move that this Bill be now read a second time. This Bill, as many of your Lordships are aware, has had a somehat chequered history. It was first before this House for a Second Reading just two years ago, in February 1979, when there was a majority of 15 in favour of its Second Reading, out of a total vote of 101. It then passed to Committee stage. Though a number of amendments had been set down, many were not moved and those that were moved were withdrawn. It therefore emerged from its Committee stage in exactly the same form as it was in when it begun its life, and the wind appeared to be blowing fair.

But then came the Dissolution of Parliament, and with the Dissolution of Parliament all Bills that have not completed their course are swept away in the flood. So we had to wait until Parliament reassembled in June; and I re-introduced the Bill in its original, unaltered form on the first day it was legitimately possible to do so. Then, shortly afterwards it came up for Second Reading, and on this occasion it was defeated by a majority of six in a vote of 100. It was not the case that your Lordships had changed your minds with great suddenness in those few months between February and June. I subsequently analysed the vote, and I found that only six noble Lords had voted one way in the first debate and the other way in the second debate, and one of those admitted to me afterwards that on the first occasion he had gone into the wrong Lobby by mistake.

I then analysed the vote further, and if you discount those six as having cancelled themselves out and you assume that all the Lords who had voted for the Bill or against the Bill either on the first or on the second occasion, or on both, had all been assembled together at one time with one vote, the Bill would, I calculate, have been passed by a majority of seven. That is its chequered history.

Now what does the Bill say? First, it looks very complicated when you look at the list of prohibitions to be abolished, down at the bottom of the first page. The Bill is on the face of it complicated for two reasons. The first reason is that everything has to be said twice, first as it appears on the woman's initiative and the second time as it appears on the man's initiative. It is also very complicated because it takes account of rather remote relationships—grand-paternal relationships; what relationship you might wish to have with your grandparent's former spouse, or your grandchild's former spouse—and these are not very likely cases. That makes the Bill look complicated but it is a very simple Bill. What it does is to provide that any two persons of marriageable age who are not currently married may marry any other person who is not related by blood more closely than a first cousin. There is one exception; it is that of an adopted child.

That is the essence of the Bill. When you have worked out all the complicated tables at the bottom that is what it amounts to: that you can marry any marriageable person who is not blood-related except your adopted child. It is important to emphasise that this has nothing to do with incest. I have been accused by people who ought to know better (since they are apparently in charge of a local radio station) of doing propaganda for the legalisation of incest. There is nothing in this Bill which affects the present law about incest. Incest, as your Lordships know—and it is apparently something that some people ought to know, but do not know—is a crime carrying a very heavy penalty. It is only applicable to persons having sexual intercourse with persons who are blood related. Persons who are not blood related, even if they were step-father and step-daughter, and who engage in sexual intercourse are open to no legal action whatever; and they can go on like that (as the law now stands) just as much as can any two persons who are totally unconnected in any way by matrimony or otherwise—total strangers. And, as we know, many people do so. I emphasise this point because obviously it will be used in publicity against my Bill and it is totally unfair and has nothing to do with this Bill.

I regard this Bill as the logical conclusion of a long process of liberalisation which started with the Deceased Wife's Sisters Act 1907. As a small child of 10 at the time, I just remember the fuss and controversy aroused by that Act. I wondered what all the fuss was about—not understanding very much of what was involved. Since that time—and I will try to shorten the history since some noble Lords will be hearing it for the third time—there have been three landmarks. The first was when the right to marry non-blood-related persons connected by marriage—and this is shortly called affinity—the right to marry certain affinities, was extended by the Act of 1931. That extended the liberty to the spouses of one's own deceased uncle, aunt, niece or nephew—but not, in any case, son or daughter. That remained and still remains forbidden.

The next landmark, and an important one, was on the recommendation of the majority of the Morton Commission on Marriage and Divorce. The Act of 1960 gave the same rights to all persons whose marriages had terminated by divorce as to those who had been widowed. That was, naturally, the subject of considerable controversy at the time; but it went the whole way in treating the widowed and the divorced alike in regard to marrying affinities. The third landmark occurred last summer when your Lordships, without Division, for the first time on this issue, permitted the marriage of Mr. Berry and Mrs. Ward who were related as step-father and step-daughter—persons of very mature age who promoted a personal Bill. They had been on my file awaiting the success of my unfortunate Bill. Eventually, in despair—because they were of mature age and thought that the change would not come in their time—they very reluctantly went to the trouble and expense of promoting a Bill to make it legitimate for them, and them alone, to marry.

Your Lordships accepted this without Division and, I might say, with acclamation, thereby admitting that the principle that it is a mortal sin that ought to be a crime or ought, at any rate, not to lead to any legalised union did not hold, and that there were circumstances in which it was right for persons who were related as step-father and step-daughter to be united in matrimony—or any rate, that there were two such persons. That was all that that conceded; but the principle was involved.

All through this long period of liberalisation the opposition had always taken the same point of view: that this would lead to licentious unions, that it would lead to the seduction of innocent people and that it would lead to complications of relationships that were intolerable. All these liberalisations have been granted and the consequences which were foretold have not, I think, resulted. That has gone on through three-quarters of a century since the first Deceased Wife's Sisters Act. But the current image which is mostly put forward is that of the lascivious husband who now sees an attractive daughter of his wife by a former union and thinks she perhaps is to be preferred to the wife to whom he was already married; and takes steps to get rid of that wife in order to marry her daughter. That is the image.

I want to say emphatically that this Bill has nothing to do with that. This Bill has nothing to do with the risk involved in that. If you introduce into the family a pretty young woman, be she your wife's daughter by a former marriage or be she somebody else, you take a certain risk and the risk is inherent in the existing situation and occasionally results in an attraction resulting between the step-father and the child. But the Bill does nothing except to say that if this happens there may be occasions when it should end in marriage.

The Morton Commission, when thinking whether for "deceased wife" you might substitute "divorced wife", argued about this and argued the case that the possibility of ultimate marriage cuts both ways. They had witnesses who said they had seen and known of cases in which this lascivious husband had been encouraged by the fact that there was a prohibition on marriage and where he said to himself: "If I take a few liberties with the girl or seduce the girl, she cannot make me marry her; and neither can her family". It is arguable that it would work both ways if there are cases of seduction of this kind. But the Bill has nothing to do with seduction. If seduction occurs, it is because the opportunity for it is there in the shape of a step-father and an attractive step-daughter.

It is always said that in this way the stability of the family would be undermined; but I think that a far more serious way in which the stability of the family and the institution of marriage is undermined is when there are serious and lasting attractions—as revealed by the personal Bill your Lordships granted in the Berry and Ward case—because great stability sometimes is maintained by the couple and they stay together for many years. What undermines the stability of the family and, certainly, the institution of marriage, is the fact that these couples will be driven to living together outside matrimony and they have a very strong inducement to beget children who are illegitimate. These children are illegitimate in a sense which applies to no others because they can never be legitimated except by the marriage of their parents, and the marriage of their parents is forbidden by law.

I wonder how far this image of the lascivious husband is real. I should like for a few moments to look—my own experience. I served for nearly 20 years (most of them as chairman) on the metropolitan juvenile court, whose "clients"—if I may so call them—came from the district of Soho to the district of Fulham. Over that area there is a wide range of marital stability and instability and family complications.

In the whole of that time, and hearing many thousands of cases of one sort or another, I often had cases in which children were brought before the court as being in moral danger owing to the improper approaches, the sexual approaches, of their own natural fathers. It is a very curious fact that in all that time I never had a single case of an indecent or sexual approach by a step-father. That is one person's experience, but it was rather remarkable. Fathers are more common than step-fathers. We all have fathers but do not have step-fathers; but that hardly accounts for the rarity in this one wide area over a considerable period of time of no cases of this kind for which obviously the police and social workers would be on the lookout since they detected the fathers but apparently not the step-fathers if they were there.

I then thought that perhaps it was my duty to look round the world and see whether I was asking the House to introduce a measure that was quite out of keeping with the normal practice of western nations or nations who share in some aspects our type of culture. Looking round the world at their marriage laws is an extremely difficult process even if you have the assistance of your Lordships' very able Library staff. But I made some progress. I decided to concentrate outside Europe on English speaking peoples and, inside Europe, mainly on the EEC, these being perhaps in their different ways the nearest to us.

I did not find one certain case—but I am pretty sure of one—in which prohibitions go all the way unconditionally in the same way as ours. Regarding the one case where I think they do, I still have to get confirmation and that is the Republic of Ireland. I found at the other extreme quite a number of cases where the law was what this Bill would make it. For instance, in the whole of Australia. Until a few years ago, Australia made marriages with affinities, particularly between step-parent and step-child, subject to the approval of the court. Then they found that this was unnecessary and they took against it and repealed that. Now these are unconditionally valid.

In New Zealand where, thanks to the kindness of the High Commissioner in London, I was put in touch with the authorities on the spot, the condition still remains. You must get the permission of the court. Whether that will last or not we do not know. I asked what use was made of it and I was told that it had been in operation for five years, and they were able to find me two cases, both of which had been successful. But they did of course say that as the records were distributed all over the country a complete search would be very difficult. Coming a little nearer home, there are several states in the United States where these affinity marriages are universally valid and unconditional. They tend to be rather towards the western side of that continent, which is not perhaps very surprising.

In Europe, so far as I know, there are two countries where there is total freedom to marry any affinity. Those two are France and Sweden, for rather different reasons in each case. I shall not elaborate the reasons in order to save time. But there are a number of others in which they are permitted on condition that they have the approval of the court. Those include Denmark and I think Belgium, Holland and West Germany—but I still have to confirm those—Norway and Italy. I mention those two last because they have peculiar arrangements of their own.

In Norway, you have to get the permission of the court. If you do not get the permission of the court and nevertheless get yourself tied up, your children are still legitimate. That raises a rather curious question of when is a marriage not a marriage? In Italy they have a sort of sporting arrangement. You must get the permission of the court. If you do not and nevertheless behave as though you were married, you have six months during which any person can challenge the marriage. If you get by that six months, then your marriage becomes valid. Great ingenuity has been shown there.

I must admit that this is cursory—I do not have all languages and all time—and the civil codes of a number of countries are incredibly difficult to unravel. But I have come to the conclusion that prohibitions as rigid as ours are not widely in operation. Indeed, I thought that they were extremely unusual as I had been able to locate only one case.

We are always having talks and images of what might happen. I should like to conclude this discourse by giving a short summary of a few cases of what actually does happen under the law at present. I should like to begin with the first couple who called my attention to this matter. The man was widowed 30 years ago. He was left with two children of his marriage and one step-daughter of 19. After trying various composite households with various in-laws, he and his step-daughter set up home together. She looked after the children of the marriage and ran the house and he went out to work, though he was was very seriously disabled and had been so since childhood. This has continued for 30 years and they are now approximately 49 years old and 65. Now that he is coming up to pensionable age he is faced with the problem that the woman with whom he has lived all this time, and who has helped bring up his children, cannot claim any benefit as his wife. She too has a further deprivation, in that they did not think it right to produce children and she has been thereby deprived of the satisfactions of parenthood.

My second case is also a step-parent case, though those concerned are slightly older. She is 60 and he is in his '70s. They have also been together for 30 years, and I think—although I am not certain—that this originated in widowhood. They have produced children: two sons, now grown up. They speak of the trouble they have—partly a burden of guilt—and, as many of my correspondents say, the horror of living a lie. There are practical difficulties with taxation which all people in this position have. Also, they have feelings of guilt and concern about the illegitimacy of their children, who have not been told of this. But, after all, it may well be that they have found it out for themselves, as so often happens.

My third case is unexceptionable beyond belief. He is a bachelor in his '60s and he wishes to marry a stepmother, two years older, who has been widowed for 20 years and has no children. Unless all such marriages are immoral, I hardly think anyone could object to that. My next case is that of a public servant. This is not a step-parent case, but a case of in-laws. There are not only step-parent cases, there are also cases of in-laws. This is the case of a man living with his daughter-in-law. They are both divorced persons. They both say that they tried to make a success of previous marriages for the sake of the children but they failed. They are now living together and I received a letter the other day to say that their second child has just been born to them. It is admitted that in his divorce case the daughter-in-law was co-respondent.

I want to add a couple more examples which have rather peculiar features. One concerns a man who in 1963 at the age of 25 married a divorced woman with a daughter who was then aged 13. He had never known the woman's husband and he had no part in the divorce. When the wife died five years later the step-child was at boarding school and in the care of guardians. Later on, when she had reached the age of 20 and her step-father was 32, they decided they would like to be married. Her actual father had left the country and married abroad, and she had had no contact with him since the age of two. In total ignorance of the legal bar, they approached the local vicar, who was equally ignorant. He consulted the diocesan lawyers and apparently they were also unable to see any bar. The church was booked and the wedding announced, and no doubt presents had been received and the invitations issued. Then, at the last minute, the legal bar was discovered and the whole thing had to be called off. I think that your Lordships may not be surprised to hear that they took a decision: they said they would behave as though their marriage had been sanctified in church. They now have two small sons.

My last example is different again. This concerns a widower in his sixties who wishes to marry his step-daughter, who is five years younger. When his wife was dying she apparently conveyed to him that she hoped, after her death, her daughter would take her place with her step-father. This, in all senses of the word, she did; and they have lived together happily now for a number of years. If I may quote their own words, they say that they want to express their thankfulness— … to have had so much love and happiness but regret that it was nevertheless under a dark cloud. If your Lordships will set this Bill on its way today, these are the kind of people whose problems you will solve and whose burdens and distress you will relieve. Surely, in an age when so many couples are deliberately choosing to live together outside matrimony, it is ironic that these couples who have lived together or who have wished to live together for long periods, earnestly desiring to be married, should be denied the opportunity. You may say that this is a very small reform in exceptional cases; but if a handful write to me there must be a few hundreds or thousands of people in the country in like case. In that sense it is a small reform, but it is no small reform to those who are affected by it, and those who are affected by it feel very deeply about it. It is on that account that I believe its importance is far greater than the number of persons affected. My Lords, I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a—(Baroness Wootton of Abinger.)

7.44 p.m.

The Lord Bishop of Durham

My Lords, I feel I must start by apologising for not having taken part in any of the previous debates on this Bill or in the Committee stage. Bishops have to cope with many conflicting demands on their time and, especially when one lives a lone way from London, as I do, the difficulties of doing all that one might want to do in this House are almost insuperable. However, there are some advantages in being able to approach this subject afresh.

I have read through all the debates and the whole of the Committee stage and in doing so I have formed a growing admiration for the noble Baroness for her persistence and determination to help those unfortunate couples of which she has given us some examples this evening and on whom the present law seems to bear with unnecessary rigour. I share her concern for some changes and I accept the implicatons of your Lordships' decision in the case of Mr. Berry and Mrs. Ward. I believe this points to the need for some simpler procedure to ensure that similar cases do not expose petitioners to the same degree of complexity, publicity and cost.

But I have also asked myself why it is that the Bill has drawn such vigorous opposition, not least from two of the right reverend Prelates who have spoken before me in previous debates, including such a redoubtable figure as the Lord Bishop of London, whom I am sure would have been here this evening had he not been recovering from flu, and the right reverend Prelate the Bishop of Guildford, had he not been spending all day defending a major report in another assembly over the road.

However, having read this through, I asked myself why I too find myself uneasy about this Bill. It is not just because of Christian tradition in these matters. Traditions, even traditions as old as those of the Book of Leviticus, can and do change as understanding develops and the world changes. Nor am I uneasy just because there are the kinds of dangers to personal morality to which the noble Baroness has already called our attention. Obviously, anybody ought to hesitate before creating fresh temptations. The Christian conscience ought always to be sensitive on such matters; but one must be equally sensitive to the needs of the individuals to whom the noble Baroness has referred and whom this Bill aims to satisfy.

It is not just that people may be led into sin, incest or anything else: it is not that at all. It is not just tradition or personal morality which are the points at issue. It is, I believe, something to do with deep-rooted assumptions which seem to give shape to and hold together the institutions of our society. Bishops have no monopoly of wisdom in these matters but our job forces us to be sensitive to them. Indeed, one meaning of "religion" is that it is about the things which bind us together and bind us to God. So it is no coincidence that in the other assembly over the road this week we should have been agonising over similar questions—marriage, divorce, unity and so forth—the things which bind us together and help us to be social beings.

Constantly, when dealing with such matters, one has to be aware of the conflict between individual needs and wishes and the maintenance of the general framework which helps to define and stabilise social realities. One can put it in very simple ecclesiastical terms and say that it is the conflict between upholding standards and exercising effective pastorial care. The general wisdom in approaching such conflicts has been to say that it is better to work with a set of norms and to allow exceptions to them than to sweep away the norms altogether. It is this latter sweeping away that, it seems to me, this Bill is about. That, I take it, is what the noble and learned Lord the Lord Chancellor was saying in his speech on the case of Mr. Berry and Mrs. Ward. He put it in almost precisely those words. This is where I would myself want to stand, and this is what I believe the two right reverend Prelates, who spoke in the two earlier debates, were also saying.

Let me very briefly summarise the main argument for the benefit of any who, like myself, were not able to attend those earlier debates. The right reverend Prelate the Bishop of Guildford spoke of the family as a complex network of different kinds of relationship within which children develop, within which they mature and within which adult people live securely. But within that network there are necessarily inhibitions on sexual activity".—[Official Report, 14/6/79; col. 734–5.] He went on to describe how in different ages, and in different cultures, too, those restraints have been expressed in different ways. But around the primary group of mother, father and children others are drawn into the network who share the same sense of belonging, who share the same intimacy of relationship and the same freedom with respect to one another, precisely because they acknowledge the same limits and the same inhibitions.

The so-called affinity restraints, which is what this Bill is about, clearly do not have the same biological force—they do not have any biological force at all—as the consanguinity restraints. But I believe that some sort of affinity restraints are no less desirable in defining a context in which there can be closeness between people, without explicit sexual activity. This does not mean that if it is defined in this way there will not be explicit sexual activity, but one is defining a context by the law. One is defining a context where people can belong to one another, without the question of possible marriage—and I say, deliberately, possible marriage, rather than possible sexual activity—giving a different complexion to their relationship.

Freedom and constraint, as we all know, are two sides of the same coin. I believe that families are free to develop a unique set of relationships between their members, because it is recognised that these relationships are different in kind from those with people outside the family. This is why, in all sorts of contexts, we say "It does not matter what you do. They are family. They will understand." This freedom exists, as I say, within the context of restraint.

The use by the right reverend Prelate the Bishop of Guildford of the word "restraint" was taken up in the second debate on the Bill by one noble Lord who twisted it into the word "repression", and the right reverend Prelate was accused, as no doubt I shall be, of being more concerned with institutions than with people. But, with all due respect, restraint is one thing and repression is another, and what we are talking about is a set of structured relationships, a set of stable expectations between people, at present given the support of the law which allowed certain freedoms to develop—the freedoms of family life.

I do not want to overstress this point. Of course, there are some people who abuse the freedoms and ignore the restraints, and they are not likely to be persuaded otherwise by reading the table of kindred and affinity. I take that point. And, of course, there are other restraints besides legal ones. If this Bill is passed, we are not likely to see queues of step-fathers hurrying to marry their step-daughters. But I do not think it is wise to underestimate the importance of laws, even fairly obscure laws, in establishing social norms; and I believe it is even less wise to under-estimate the effect of abolishing laws as part of the process of undermining social norms. I think that this needs to be stressed, particularly at a time when the number of cases to which this Bill might apply—

Lord Robbins

My Lords, might I interpose to ask the right reverend Prelate to be precise on these matters? Would he apply the same arguments to defend the prohibition, which his Church defended, against marriage with a deceased wife's sister?

The Lord Bishop of Durham

My Lords, I thank the noble Lord for raising that point to which I shall be coming in a moment. But may I, just for the moment, reiterate the point that I was about to make; namely, that present circumstances have to take into account the enormous widening of the scope of this Bill, as a result of relatively easy divorce; that when such legislation was first contemplated in the Deceased Wife's Sister's Bill, the number of cases to which it could apply would be pretty small. Nowadays, the field is many times larger. But, of course, the question of the deceased wife's sister has been raised in earlier debates and noble Lords have had some fun with the Bill; particularly the prophecies of ruin, which were emphasised, if the Bill were to be passed.

The noble Baroness, in introducing the Bill, has repeatedly made the point that the present Bill is only the final step in a long process, but I suspect that it was precisely this—the sense that it was the first step in a long process—which worried those who first fought the battles in 1907. The slow chipping away of the customary legal framework of family life may not matter very much at first, and may, indeed, even bring advantages and improvements, as quite possibly happened in the case of the Deceased Wife's Sister's Bill.

But there comes a point at which one has to ask whether the process has not gone far enough. It seems to me from the previous debates, with their concentration on the relationship between step-parents and step-children, that the really decisive point comes when the people concerned are not just members of the same family in the extended sense, but also members of the same household, and to have conflicting marital interests within the same household does, I submit, strike at the root of family life. The noble Baroness surely recognises this. Twice it has been pointed out to her in previous debates that her Bill, rightly, will not affect the prohibitions applying to adopted children, and twice I believe she has failed to take the point that, psychologically and socially, if not legally, exactly the same considerations apply to step-children—

Baroness Wootton of Abinger

My Lords, if the right reverend Prelate will give way for a moment, think that the mention of adoption of children was intended to make the position of an adopted child as nearly as possible that of a natural child, and that is not true of a step-child.

The Lord Bishop of Durham

My Lords, with all due respect to the noble Baroness, it may be true of a step-child. Having myself been brought up in a family with step-children, I know how close and intimate the relationship can become.

Furthermore, both of the prelates who spoke in previous debates made the point that Church-State relations have a bearing on this Bill, in that canon law at present affirms the prohibited degrees. I do not want to make too much of this point beyond saying that much of importance hangs on the fact that civil law and canon law have so far managed to keep in step in matrimonial matters and that a certain sensitivity is required on both sides if this state of affairs is to continue.

In summary, let me repeat my main objection to this Bill. I believe that it would lead to a further erosion of the concept of the family as a stable set of structured relationships extending beyond husband and wife and beyond blood relations. Within that structure certain freedoms are possible because certain other freedoms are denied. I do not want to deny the freedom which the noble Baroness is concerned about—the freedom that some might marry in instances where a reasonable case can be made for it. That is why I should be perfectly happy to support a Bill along the lines of that proposed but not I believe yet read by the noble Lord, Lord Lloyd of Kilgerran. But this Bill would I believe contribute to the erosion of the norm. That is why I must vote against it.

8.2 p.m.

Lord de Clifford

My Lords, I rise to address your Lordships mainly because I have great depths of feeling about the matter. First, however, with other noble Lords, I must congratulate the noble Baroness on the persistence she has shown over this Bill. I am afraid that she has failed to convince me, although I have read through her speeches a number of times. I was the only noble Lord who in fact opposed the Bill of Mr. Berry and Mrs. Ward. I did not oppose that Bill because I did not sympathise with them. I did. I wished them well as the Bill went through, but I had the feeling throughout that the case of Mr. Berry and Mrs. Ward was going to be used as the thin end of the wedge. During the course of the debate I think I indicated this, and the noble and learned Lord the Lord Chancellor said to me that perhaps I was being a little too rigorous. So it is no surprise to me that we have this Bill again, supported, as the noble Baroness was earlier, by the case of Mr. Berry and Mrs. Ward.

I believe that we should be discussing another Bill altogether. I feel, with the right reverend Prelate the Bishop of Durham, that we should be discussing a Bill to ameliorate the difficulties confronting what one might call the fringe. I cannot believe that we ought to pass a Bill which has as its basis the disintegration of the concept of the family.

From a very young age I was brought up to believe that the family is a unit. My mother remarried a number of times. When she remarried on the death of her previous husband we still remained a cohesive unit. We were a family. We were built round something. We relied on each other. If a person with children comes into a family, I believe that they all become part of that family. I cannot bring myself to believe that a complete family unit, with all its relationships and interlocking lives, its intimate knowledge of what goes on and the help that each member of that family gives to the other, should be broken. But that I think is what this Bill does.

I find myself in great difficulty over the Bill because the noble Baroness continues to talk about legalities. It is not the legalities that we are interested in. We are interested in a principle. This Bill introduces a tone which is entirely wrong. The noble Baroness said that she had been accused of promoting incest. I can appreciate that it is not incest which she is promoting; but when somebody looks at a family and sees what the result could be, morally and mentally it is incest, though legally it may not be. I am afraid that I do not like it.

I have not yet been convinced by the noble Baroness. I shall listen with interest to a number of other speakers who no doubt will support her, to find out whether I can come into closer touch with her. However, I must confess, with the right reverend Prelate the Bishop of Durham, that if the bulk of your Lordships accept this principle—which I hope they will not—a far better Bill would be that of the noble Lord, Lord Lloyd of Kilgerran, which has not yet been read.

8.8 p.m.

Lord Soper

My Lords, as one who took part in earlier debates on this theme and was convinced then of the rightness of this Bill, and who does not find that time has withered that argument or that the years have condemned it, I rise to support what has already so eloquently and convincingly been said by the mover of the Bill and would begin, as I think is only proper for one such as I, by a reference to the moral basis upon which I believe it is surely founded.

It is in no spirit of creating division among the Prelates that I would remind your Lordships that it was no less a person than the Lord Bishop of London who said at the last Second Reading that the debate had revealed that there was no great ethical, moral or religious objection as such to the marriage of those who were related by affinity. That I believe is a true representation of the basic Christian position.

I will not weary your Lordships with quotations from the Book of Leviticus. I would only say that those who would select particular passages should take the precaution of reading the whole document. They would find what a constricting effect it has on almost every legitimate as well as illegitimate practice. I believe that the Old Testament is an excellent guide and a servant of the good but that it is an intolerant master. Therefore I am not in the least concerned to quote particular passages from dubious documentary evidence to support what, after all, is the spirit and intention which I believe to be found consummated in the teaching of Jesus Christ.

I can see no reason why this Bill should not commend itself to those who are concerned with the moral stability of the community as such and wish to recognise that the institution of marriage is an entirely desirable norm. But if I may break a gentle lance with my right reverend friend of Durham, who unfortunately has had to go, I would remind him that to make the case that we are to respect norms entirely depends for its validity on the question as to whether they are the right ones. There are a great many norms which in my judgment are rather ridiculous taboos, and certain others which have grown up in the realms of superstition and have no validity at a time when we have to examine them more critically.

I am of course concerned with the restraints that belong to any freedom, because after all freedom is a form of ordered restraint, but I very much object to the concentration in this particular debate hitherto on the more sexual elements in marriage and I will delay your Lordships a little, if I may, to remind myself that in as much as people tend to live longer than they did, the promise "till death us do part" carries with it many more complications than it necessarily did for those in earlier ages. The longer you live, the more the problems that face you and the more the complications you have to deal with.

It is interesting that in the 1662 Prayer Book the first of those reasons for which marriage was ordained was the procreation of children and the second reason was the remedy for sin—or against sin. The third—and a poor third—was the mutual respect, comfort and love that the one ought to have for the other, both in prosperity and in adversity. With great wisdom my friends in the Anglican communion have now altered that introductory statement before people are married in church, and the one that was third now reads as the first requirement. There is a vague omission—I think we might call it, if we can refer to omissions as being vague—of the second, and there is a more mature suggestion as to the procreation of children. But the first consideration is that of the mutual society, help and comfort that the one ought to have for the other, and it is that to which my noble friend has attached the kind of emphasis which I believe is irrefragable.

May I add my own experience, long if not necessarily very deep. I cannot remember any practical case that has been advertised as almost a necessary consequence of the passing of this Bill. I find myself in complete accord with the noble Baroness in her insistence that it is not so much in the realm of sexual activity but in the more mature realm of people who have lived a long time and acquired all kinds of new circumstances, that the true basis of marriage for them is mutual society and help and comfort, and not the procreation of children and indeed, in many cases, not even the continuation of sexual activity. It is in this regard that I believe we have to face a sense of distrust, not only of the Church but of the law, when it appears that it is so geared as to frustrate proper and normal and health-giving associations among those who are mature and have necessarily in their maturity acquired greater relationships with a greater number of people.

I am not going to weary your Lordships with a long speech. I would emphasise, as I sit down, that only that law which appears to be compassionate as well as just is a law which commends itself; and if it is argued, as it was argued in previous debates, that few people have concerned themselves very deeply with this issue, may I finish by saying something about the kind of contacts that have come my way. Where people are aware of this law they regard it as stupid; if it is persisted in, they regard it as malevolent. What they believe is that the law should represent genuine and decent desires. Here I would support the noble Lord, Lord McGregor, who, in the previous debate, got himself rather lambasted for saying this, but I wish to repeat it because I believe it is true, that anything that can support and dignify the role of marriage at a time when so many things seem to be against it, seems to me to be of the nature of enlightened and civilised conduct.

This is a bad law. It is a bad law because it discriminates; it has no moral basis which is generally acceptable, and I firmly believe that with certain reservations that I have—for instance, I would not object in principle to an age limit under certain circumstances—a Second Reading of this Bill is the right and proper attitude for not only the Christian but also the civilised member of society now in order to safeguard and not to imperil the family. I believe that so long as this Bill is not on the statute book an Act of the kind as it now exists is detrimental to those interests which I believe can best be served, in part at least, by the acceptance of this Bill and its Second Reading.

8.16 p.m.

Lady Saltoun

My Lords, I am grateful to the right reverend Prelate the Bishop of Durham for his understanding speech. This Bill causes me great concern, for I fear that as it stands it will undermine the whole fabric of family life by creating an atmosphere of distrust between people and their in-laws which is by no means the norm, despite the perennial old jokes about mothers-in-law. If we may take just one example, page 1, line 14 enables a man to marry his mother-in-law. Now take a hypothetical case—an ambitious, unscrupulous young man, married to a wife who has a rich mother with a penchant for younger men. The wife goes into hospital and her mother moves in to keep house. That wife would never have a moment's peace of mind. Her husband could start an affair with her mother and eventually divorce her and marry the mother. Now, as things are he could only "shack up" with her, to use a revolting but expressive modern phrase, and without the prospect of marriage would probably not do so or even be tempted to do so. Where grandparents-in-law are concerned the possibilities may be fewer, but none the less they are there. In all cases, they are there.

Of course there are occasional hard cases and the noble Baroness, Lady Wootton, has given us some very heart-rending examples, but I still think it better, if more expensive and time-consuming, that they should either be dealt with by special legislation so that they are very carefully scrutinised individually, or that the courts and judges should have power to grant dispensations, where they are satisfied that all is above board. After all, as the noble Baroness, Lady Wootton, has told us this is done in some other countries and here divorce is dealt with by the courts, so why not these marriages? Could the Bill not be amended or another introduced to that effect? Also where there is poverty could not legal aid be available? On 29th February 1980 The Times said in a leading article: The House of Lords has shown that it will entertain relief in deserving cases. Promotion of private legislation is a high hurdle to clear. But a high hurdle is appropriate … There is another aspect of legalising marriage between close relations by affinity. I think it will put ideas into people's heads which otherwise might never have entered them. I mean, for example, that a man who would never now consider having an affair with his daughter-in-law might very well be tempted to do so if the "incest taboo" were removed. In 1940 Professor Malinowski said: The main sociological reason for marriage taboos and prohibited degrees is the elimination of sex from relations of the family type. A group leading a joint life with the intimacy of daily concerns, with the need of an organised authority and unselfish devotion, cannot tolerate within its framework the possibilities of sexual approaches, for these act as a competitive and disruptive force, incompatible with the even tenor and stability of the family". The moral teaching of all the Churches (as well as of Judaism and Islam) is clear on the seriousness of incest and the extent of the prohibitive degrees. It proceeds from the basis of the consistent teaching of the Bible. Affinity and consanguine relationships are listed on a par with each other in Leviticus and also in Deuteronomy, as they are in the lists of the established Church. Both Old and New Testaments allow for the few exceptions already made in 1907 and 1921 in English law, marriage to the deceased wife's sister and the deceased brother's wife. Family life is at a low enough ebb these days without our helping it down a bit further. This House starts its deliberations by praying for God's blessing on its work, and I do not believe it to be consistent with those prayers that we should give this Bill a Second Reading.

8.21 p.m.

Viscount Hanworth

My Lords, this evening I shall be even briefer than I usually am. I have read the speeches in the previous debates on this subject and I am impressed by the care and thought that many speakers have given to the subject. It seems to me, however, that the only real argument against the Bill is the possible effect on the family as an institution and similarly on marriage. Ten years ago I might have thought that those considerations would outweigh the merits of the Bill. Today, however, I do not believe that either the family or marriage will suffer from the liberalising effects of the Bill.

The people who suffer most from the existing restrictions of the law are those with high moral and religious principles, and the children; but there are, of course, others who lose financially and, in the main, need the money. The plain fact is that in most cases couples will ignore the law and simply live together, and that is what we have to face today.

Some of the prohibited restrictions are extremely bizarre; for example, a wife's father's mother. There could hardly be a sexual connotation in such a union, if that is what is worrying. I suggest we can safely sweep these aside without detriment to society in the cause of those where hardship does occur. I would therefore suggest that the Bill should not be amended, and I give it my full support. My Lords, this intervention has taken two minutes.

Several noble Lords

Hear, hear!

8.23 p.m.

The Lord Bishop of Norwich

My Lords, I think we all have a great respect for the noble Baroness's persistence and clarity, but the old adage that hard cases make bad law kept coming back to me when she was giving those very moving and human but highly specialised cases, which must be few in relation to the matter that she hopes to deal with. The phrase which the noble Baroness used, the logical conclusion of a long liberalising policy, would lull us into the sense that this was but a little Bill and would only really be a tidying-up operation in the liberalising attitude of 1907, 1921 and 1960. I would not agree.

When one reads the actual Bill, and discovers that when one personalises it it comes straight down to one's own mother-in-law as the first person mentioned, it really does make one realise—and I hope that your Lordships do not feel that I am exaggerating this point—that we are by this Bill opening doors which are so wide as to be quite intolerable in relation to the slow movement of thought concerning family life.

We may be at fault in the Church of England here. One of my brother right reverend Prelates has recently given his children a copy of what in this House I have heard known as "Ye little superstitious bookie"—I am referring to the Alternative Services book which has just been produced. My brother Bishop gave three copies of that new alternative book to his three children, and the three children all rose as one and said, "But where is the table of kindred and affinity?", which has whiled away many a happy 10 minutes waiting for a service to start. It is not in the new book. It is still in the old book, and the old book is still annexed and firmly, therefore, part of Church of England policy and tradition.

I think it is important, though, not to draw a false distinction between the Church being illiberal and standing on old traditions while the rest of the nation moves forward into a new warm-hearted humanity which the Church is out of touch with. If we were to give approval on Second Reading to this Bill we would in fact be driving a pretty smart wedge between the whole consanguinity aspect of marriage and the whole affinity aspect of marriage. So it is a very big thing the noble Baroness is asking us to do, very big indeed. It is saying in effect that only the consanguinity relations matter and that the affinity ones do not.

But the family is the sphere of de-sexualised effective ties—parenthood, the brother and sister relationship. This I know to be so. I happened to be the only child, and I happen to know that in our family our sons and daughters have such a deep relationship, the one to the other, that to say that there is a difference between the consanguinity relationship and the affinity one is, I think, to draw a conclusion which is a false one. Now a couple of them are married; as the family grows and develops one finds that the wider family, and especially the larger family, is a new network of in-laws, a family network established by marriage, and it is a non-competitive, de-sexualised, affectionate, warm complex of people. It is in fact a little tiny society within societies, and I have a feeling that where the health of the developing family is strong the health of the nation will be stronger. As I see it, this particular Bill will drive a wedge between the two halves of the family.

Of course, it does drive more than a wedge, a whole coach and horses, through the Church's list of prohibited degrees. It seems to ignore the fact that in our Christian country, the established Church is not a church of privilege but a church of opportunity; and today in another place, from 10 o'clock this morning, the General Synod of the Church of England has been giving the most careful thought to how in covenanting the main line Churches can come into a newer and closer relationship. So that it is not just a Church of England and state relationship; it is a Church and state relationship.

In this relationship there has always been general agreement concerning the prohibited degrees. So far as I know, no approach has yet been made to the General Synod of the Church of England, for instance, concerning the de facto changes that would be necessary in Anglican law and practice if this Bill went through. So far as I can see—and maybe the noble Baroness will mention this in her reply—one of the fatal defects in the Bill is that there is no conscientious clause whatsoever in it, which means that a clergyman of the Church of England would be put into an impossible conscientious situation in relation to such a marriage when the kindred and affinity still remains in the Prayer Book. That is, I think, an important area. But in general one feels that this is a down-grading of the importance and the social ramifications of the whole family unit.

Having said that, let us consider at this rather late stage of the debate what positively we from these Benches—which I represent for the moment—have to offer? Indeed, my brothers have been working hard since 10 o'clock this morning in another place, so they need some refreshment. What do we from these Benches have to offer? The right reverend Prelate the Bishop of London, whose retirement is soon coming and whom we shall miss tremendously on these Benches made a very liberal speech, but it was not a speech concerning the derogation of principle; it was a speech seeking to raise the particular opportunity of a special need. As the right reverend Prelate the Bishop of Guildford said in this House on 14th June 1979, at column 733: I cannot help feeling we ought to have presented to us in this matter a different type of Bill which would not make the sweeping destruction of the affinity restraints but would be directed to the removal of particular injustices in particular cases". In fact, of course, events have overtaken that prophecy because since that time the Berry-Ward special Bill has been brought in and passed and that special case has been dealt with.

The magisterial way in which The Times refers to the matter—and I shall conclude my speech with this quotation because it is a good summary—is as follows: No general legislation in this matter should be approved which does not preserve the unambiguity of that parental relationship for as many years as are required for its unambiguous preservation". It is referring particularly to the step-father/step-daughter situation. But it then says—and this is its final phrase— In the meantime the House of Lords has shown that it will entertain relief in deserving cases. Promotion of private legislation is a high hurdle to clear. But a high hurdle is appropriate". I believe that a high hurdle in special cases is a right, proper, humane and compassionate approach to the fairly small handful of very special cases, rather than the dropping of not just a bad law—to quote the noble Lord, Lord Soper—but the long centuries of law which have been both law of Church and law of State, which have held that the affinity relationships as well as the consanguinity relationships are part and parcel of that gift of family life which is still one of the great and precious gifts in our nation.

Lord Raglan

My Lords, before the right reverend Prelate sits down, I wonder, as a matter of interest, whether he thinks it would be all right and the family would be safe if the father's father's wife or the wife's daughter's daughter were allowed to marry? Are not these things a bit far-fetched in themselves and surely to have them associated together is a bit odd?

The Lord Bishop of Norwich

My Lords, it is true that the original Prayer Book lists, which, as the noble Lord, Lord Soper, reminded us, are based on the Levitical pattern, are broadly drawn, but I think that they were broadly drawn for the sake of parity and fairness as regards all the people concerned. But with the development of divorce and with people marrying at quite widely different ages, some of even these slightly—I think that this was the noble Lord's phrase—"odder" or "way out" ones may soon be possible. This is an attempt to be fair across the board and that is how I think it has been read. That is why we all enjoy reading them before church begins each morning.

8.35 p.m.

Lord Robertson of Oakridge

My Lords, I should like to begin by supporting the remarks made by two earlier speakers: first the right reverend Prelate the Bishop of Durham who remarked that we are not concerned here with the question of sin or otherwise, or morality in isolation; and secondly, the remark of the noble Lord, Lord Soper, that what we want to see as regards any law is that it should be just and compassionate. I am sure that the New Testament teaches us that the rigid application of moral principles without love and compassion and without regard for the welfare of members of society is invalid. What we are concerned with here is what will work to the best result for the welfare and happiness of the members of our society. I should also like to add that when we talk about "the family" we are talking not so much about an institution as an institution that consists of actual people—men, women and children—individuals with whom we are primarily concerned.

I freely acknowledge that this Bill would bring genuine happiness to a few people, if only by relieving them of the complicated and costly procedure of having to win Parliament's approval to have an exception made in their case. But I believe that, without proper safeguards, it will bring unhappiness to a larger number of people by introducing potential conflicts of interest in the family. This is most clearly seen in the provisions that affect step-children.

The totally new factor that would be created by the Bill is that a man would be enabled to marry someone who had grown up as a child in his household—namely, his step-daughter, someone to whom he had acted as parent. That would be totally alien both to Christian tradition and to our own country's customs and culture. Of course, no one would suggest—and certainly no one appears to be suggesting—that a person should be allowed to marry his adopted child. That perhaps shows that the objections are based not just on blood ties, but on the very nature of the parent-child relationship. Family relationships, especially that between parent and child, are based on a type and degree of confidence, trust and intimacy that simply is not compatible with a relationship as lovers. Furthermore, a child is physically and emotionally dependent upon its parent. We do not want to open the door to a situation where abuse can be made of that dependence, and made legally.

It may be said that the temptations to indulge in filial abuse already exist, only that the situation cannot be rounded off, as it were, by marriage. But when we pray about temptation we pray that we should not be led into temptation, rather than that the object of temptation should be legalised.

Baroness Wootton of Abinger

My Lords, perhaps the noble Lord will give way for a moment? Surely there is nothing here that increases the temptation. The temptation, as the noble Lord has himself said, exists in the presence of an attractive young woman in the family and the possibility that the head of the family, the father, may be tempted to make a liaison with her. There is nothing in saying that marriage at the end is possible that increases the temptation. In fact, as I pointed out, in some respects it diminishes the temptation.

Lord Robertson of Oakridge

My Lords, I thank the noble Baroness for her intervention. I think that this is a matter of judgment. I believe that to pass this Bill would, in effect, not only make this kind of filial abuse legally possible, but would imply some measure—

Baroness Wootton of Abinger

My Lords, it does not make it legally possible; what the noble Lord called "this kind of abuse" is legally possible at present. Perhaps it ought not to be, but it is.

Lord Robertson of Oakridge

My Lords, again, I thank the noble Baroness. I am not thinking only of the sexual kind of abuse. One can also imagine cases where a step-father has a relationship where the child is obedient and expects to obey the parent; when it comes to the question of marriage, the step-father may well abuse that obedience on the part of the child in order to persuade the child into marriage. It is that of which I am thinking, not just the sexual side. I believe that to pass this law implies some measure of society's approval of that sort of conduct.

The overriding requirement is not to change the law in such a way that young people would be exposed to the results of these conflicts of interest. At the very least safeguards for young people should be provided. Your Lordships will remember that in the last Parliament various safeguards were considered, but none was found acceptable. I think that we are entitled to know from the noble Baroness whether she thinks that safeguards are not necessary or whether she has investigated possible safeguards and not come up with one that would be satisfactory. In this respect I think that we shall look with interest at the Bill which may come before your Lordships' House and which is to be introduced by the noble Lord, Lord Lloyd of Kilgerran. But as this Bill has no safeguards at all, I, personally, have no hesitation in opposing it.

Lord Teviot

My Lords, before the noble Lord sits down, I should like to ask him one question. He said that he finds it alien for a man to marry his stepdaughter. Would he still find it alien for a man to marry his step-daughter if his wife was deceased?—and I am not thinking of the cases concerning obedience.

Lord Robertson of Oakridge

My Lords, I thank the noble Lord for giving me the opportunity to emphasise the point. I did not say that it was alien simply to marry his step-daughter; I said that it was alien for a man to marry someone who had been the child of his own household, who had grown up in his household and to whom he had acted as parent.

8.43 p.m.

Lord Gardiner

My Lords, in view of the lateness of the hour I shall be extremely short. Of course, no Member of this House would be expected to vote for this Bill if it is against his religious convictions. Nobody would expect that. I am not an authority on contemporary religion. Rightly or wrongly, I had understood from the right reverend Prelate the Bishop of London that there was no moral or religious objection. Indeed, when we discussed the case of Berry and Ward I think it was the same right reverend Prelate who was almost enthusiastic about the Bill going through, in which case it is not a question of opening doors. After all, it is about 70 years since the deceased wife's sister provision died. It is a bit late to start talking about opening doors.

The one thing with which I cannot agree is the suggestion—whether one relies on the Old Testament or the New Testament—in view of the whole history in the area of social welfare, that, of all Governments, this Government should allow legal aid for cases of this kind. In a way it seems to me extraordinary that under the present law one has to come to this House with a Private Member's Bill. We are rather back in the situation of the middle of last century when one could get a divorce but, apart from other legal proceedings, one had to have a Private Member's Bill passed in your Lordships' House. I know a little about this because one of my great grandfathers did this himself and when I was Lord Chancellor I was interested to find that all the records and the evidence of the case had been carefully preserved and are still in the Victoria Tower. But for many years he could not get the divorce because he simply could not afford it.

At that time the result of those laws was, as we all know, that there were two laws about divorce. There was one law for the rich and there was another law for the poor. I understand that the recent case of Berry and Ward, when everyone—including the right reverend Prelates—said what an eminently correct case it was and that it would be wrong in any way to oppose it, and when not one Member of your Lordships' House voted against the Bill at any stage, cost them about £1,000. I think that this is an intolerable position. When we have already removed so much of the law of affinity, it seems extraordinary that we should not finish it altogether and I, personally, strongly support the Bill.

8.46 p.m.

Lord Boston of Faversham

My Lords, first, I should like to follow the right reverend Prelate the Bishop of Durham and others of your Lordships in congratulating my noble friend Lady Wootton of Abinger not only on her tenacity and, indeed, the compassion that she has brought to this matter again today, but also on the new dimensions that she has brought to this debate; for she has not merely repeated speeches which she has made on earlier occasions, but in fact she has brought the results of her quite extensive research to this particular debate and also has presented to us new cases which I think have been most helpful to us all, on whichever side our view lies.

I should also like to follow what my noble and learned friend Lord Gardiner has just said. Since the last occasion, on 14th June 1979, on which we debated a similar Bill introduced by my noble friend, a significant event has occurred which cannot be ignored by this House; that is to say, the passage of the Edward Berry and Doris Eileen Ward (Marriage Enabling) Act 1980. I shall come to the particular reasons why I consider that of special significance in a few moments.

No doubt many of us, when confronted by a problem or a proposal for legislation, try to answer at least two questions at the start: whether there is really a problem here, and whether it is something that Parliament can and should try to solve. If we did not know before the Berry and Ward Act, we certainly know now that there is a problem here. We also know that it is a problem which Parliament can and should solve, at least in some cases, as we did in that specific case.

I do not intend to go over again this evening the general arguments on both sides of the question of principle here—they have been covered, to some extent, again tonight—that is to say, whether marriage should be permitted between persons related only by reason of affinity, as proposed in my noble friend's Bill. We know well the sort of problems which can arise under the present law, and we have had especially in mind cases involving a step-daughter and her step-father who would wish to marry if they could. We know the hardship that can be caused—as has been indicated by my noble friend and others tonight—under the present law, and the heartrending sadness and anguish that may arise. Surely we cannot fail to sympathise with those couples; nor fail to be moved by their sad situation.

But on the other hand, many of us—perhaps all of us—also have sympathy for the view that the relationship of husband and wife is such, is so close, and ties between their two families are so close, that that itself needs to be protected, because the relationships formed are such special ones. Some would not be able personally to contemplate the marriage of step-parent and step-child in any circumstances. I confess that I am in the unfortunate position of being able—as I dare say we all are—to see both sides of this argument and to sympathise, to some extent, with both of them.

But the fact remains that there is a problem. We have had a recent example of that. The fact remains that there is broad acceptance within Parliament that it is a problem which Parliament should solve in at least some cases. It was clear during our debate on 22nd May last year on the Second Reading of the Berry and Ward Bill that the power of dispensation to allow a step-parent and step-child to marry has existed for a very long time. The noble and learned Lord the Lord Chancellor himself mentioned that. It exists now, as has been mentioned tonight, through the promotion of a personal Bill and its passage through Parliament.

We are bound to ask ourselves in discussing my noble friend's Bill, is that the system we intend to retain? We know that it is a very costly system, as I indicated and as has also been mentioned by my noble and learned friend Lord Gardiner tonight. The total cost of presenting a Bill of that kind, covering the printing costs, which are the main elements, and the House fees, which are comparatively small, was then in the region of £1,000. That does not include the fees of Parliamentary agents. Inflation, no doubt, has had its inevitable impact since then. So that course will not be open to some couples because of the cost.

If we intend to retain that system, based upon our exercising our discretion in favour of or against particular parties in the future as we did in that case, how do we intend to exercise that discretion? That is another question which I feel, with respect, we are bound to ask ourselves. Mr. and Mrs. Berry were just about the most perfectly deserving case one could imagine, but what if another couple should come along, perhaps deserving, but seemingly to some less so than Mr. and Mrs. Berry, as they now happily are? Would we reject them? Would we really turn them aside after they had subjected themselves to perhaps the most public of all scrutinies here under the searchlights of Parliament itself, and after they had declared their love so publicly? After they had perhaps made such financial sacrifices and shown their determination in wanting to be married instead of just living together?

If we did reject them, on what basis would we do so? What criteria would we use? Where would we draw the line? People surely have a right to know. I bear in mind, as the right reverend Prelate the Bishop of Norwich reminded us, that in that article which he quoted there was reference to "a high hurdle". But the difficulty is, how can people know in the present situation how high that hurdle is that they are expected to try to overcome? Can we really see ourselves rejecting a couple who had tested themselves? Because that is what they are doing when they come so far as to your Lordships' House.

Although these considerations were not spelt out during the debate on the Berry and Ward Bill last year, I suspect that they were among the ones in our minds when the general view emerged here that the present system was unsatisfactory, as indeed the noble and learned Lord the Lord Chancellor indicated. So if we scrap the present system, what do we put in its place? Do we replace the parliamentary scrutiny of a couple by some other form of scrutiny as some have suggested, or accept the simple, straightforward, general dispensation offered under this Bill?

In previous debates, as we have heard again tonight although not in detail, we have considered the possibility of a provision requiring a couple to apply to the court for consent to marry. I have looked at this idea again since our debate last year, and despite its attractions at first sight I am bound to say that I still remain as unconvinced about its practicability and indeed its desirability as I was when it fell to me to spell out some of the disadvantages when we discussed it in Committee on my noble friend's Bill on 15th March 1979. Those were difficulties which were also endorsed by, for example, the noble Viscount, Lord Colville of Culross, and others.

I do not intend to go into them in detail, but perhaps should make just a brief reference to one or two. There was first the problem that we would be imposing on the courts a difficult and complicated task with which they are not equipped to deal, and which it would be unsuitable for them to undertake. The fact is that they are accustomed to hearing and testing evidence from opposing sides and that here there would be no opponent, unless, say, the court was required to consider whether either party had contributed to the breakdown of an earlier marriage, in which case a former spouse may appear or be called to give evidence, or oppose the proposed marriage with the need, perhaps, to be legally represented and the additional costs that that would involve. An examination on such a matter would also run counter to the modern practice to avoid apportioning blame on the breakdown of a marriage—the concept of a matrimonial offence—and would possibly also reopen old wounds.

Again, would the court be required to examine financial matters? And how should that be done? There is the possibility, too, that that would involve additional witnesses, and perhaps opposing parties also legally represented. There would also need to be provision for appeals. There were other objections which I shall not go into, not least the costs and delays involved in such applications. Of course the noble and learned Lord the Lord Chancellor in our debate last May indicated the difficulty of leaving matters of this kind to the judiciary.

So, my Lords, before returning to the solution proposed in my noble friend's Bill, let me ask whether there is any other form of scrutiny that might do instead of Parliament or the courts, and which did not amount to a requirement to seek consent, for I do not feel that there is anyone other than Parliament or the courts to whom we would be prepared to give power to grant or withhold consent to marriage: whether there is anyone, in other words, the couple should be required to consult before marrying.

I had in mind here the provisions under the Matrimonial Causes Act 1973, that before a hearing on a petition for divorce there has to be filed a certificate stating that the party's solicitor has discussed with the party the possibility of reconciliation. In mentioning that, one also bears in mind that it soon became clear that in practice that was, in most cases, little or nothing more than a formality, at least by that stage of the proceedings, the marriage itself.

I suppose it would be possible for provision to be made for the couple to be required to consult, say a social worker of some kind, or a marriage guidance counsellor about the circumstances of the marriage, and to obtain a certificate to that effect which had to be presented to the clergyman, or registrar of marriages, before they could marry. But I think there would be formidable practical objections to even that. Certainly there could be no question of such a person withholding a certificate, still less any power to prevent the marriage other than by means of an objection which is open with marriages as they are now.

In the first debate I took up a neutral position for the then Government; and in the second, while maintaining that neutrality on the merits of the Bill, I felt that as the House had so recently then given a Second Reading to the Bill, it should do so again, and I was in favour of the Berry and Ward Bill. Since our earlier debates, I have given a great deal more thought to this whole matter, as we know your Lordships have too from the speeches made tonight.

I cannot, of course, commit my noble friends, but I am bound to say that the more that I think about this matter, the more I become convinced that the question of a marriage between a man and a woman related by reason of affinity only is a matter for them and who-ever they may choose to consult—their religious advisers, their families, or whoever—just as with any other permitted marriage. There will always remain the moral, social, family constraints upon an unsuitable marriage and they will influence a couple, I think, far more than anything else. If they wish to be properly and legally married rather than just living together—I confess I am still old-fashioned enough to prefer couples to marry—surely that will itself enhance the status of marriage.

For the reasons I have given, I believe that in passing an Act like the Berry and Ward Act we have indeed acknowledged that the basic problem exists and should be dealt with, in some cases at least, and that because of the practical problems involved, the only fair, effective and civilised and compassionate way to solve the overall problem is through my noble friend's Bill, and I hope your Lordships will give it a Second Reading.

9.1 p.m.

Lord Belstead

My Lords, the policy of the marriage law as to capacity to marry has been debated in your Lordships' House on four occasions in the last two years. Two of those debates were in the first part of 1979 on Bills in the same form as that now before the House—and indeed on the first occasion, the noble Lord, Lord Boston of Faversham, replied on behalf of the Government—and more recently many of your Lordships took part in or heard the debate on the personal Bill introduced by the noble Lord, Lord Lloyd of Kilgerran, which was subsequently passed into law. Today we have another opportunity to express our views on the present restrictions in England and Wales on marriage between persons who are related by reason of a previous marriage.

The noble Baroness, Lady Wootton, has had her disappointments in seeking to advance her proposals to the point of acceptance by both Houses, but nothing daunted—and perhaps encouraged by some of the speeches made in the debate on the personal Bill in May of last year—the noble Baroness has set before the House her original proposals for a general relaxation of the law. This debate has shown again how a united concern for the welfare of families and of the wider community can yet lead to differing views as to what should or should not be done on this matter, and certainly this is not an issue on which I should seek to try to put forward a single Government view, and I shall not try to do that.

The noble Baroness at the end of her speech described the circumstances of a number of people who, under the present law, cannot marry the partner of their choice but who nevertheless would like to do so. The sole impediment, as I understand it, is that at least one of the parties has previously contracted a marriage, now ended by death or divorce, which brought the party within a degree of affinity to his or her new partner. Had the previous marriage which created that relationship of affinity not taken place, there would be no legal obstacle to marriage between the two people concerned.

I thought your Lordships might like to hear what evidence I have from the Home Office of the interest in and concern for this matter so far as statistics are concerned. Over the past 15 years, the Home Office and the General Register Office, the two Government departments concerned with the working of English marriage law, have come to know of 25 such cases as a result of the receipt of inquiries by or on behalf of couples who wish to marry but who are prevented by the present law on affinity; 17 of the cases are of step-parent or grandparent and step-child, and eight of parents and children in law.

So far as the wishes of the community at large in the current climate of opinion are concerned, in practice the representations we have had all come from or on behalf of people who have an immediate or direct personal interest in the possibility of a marriage within the prohibited degrees of affinity. That supports the conclusion of the view expressed in 1970 by the Law Commission in its report on the law of nullity that no significant public interest had been expressed about amendment of the law in this respect. But, of course, that does not deny the assertion by the noble Lord, Lord Boston, that there is clearly a problem here, and of course it does not diminish the personal interest and in some cases (one can say from the noble Baroness's speech) the personal anguish of those personally affected.

The case advanced in favour of the Bill is based on the hardship caused to those whom existing law does not allow to marry. On the other hand, the need to preserve the stability and integrity of the family leads some of your Lordships who have spoken this evening into expressing anxiety lest it might be undermined by the development of inappropriate personal relationships between members of a family, in particular where people of different generations are involved.

The right reverend Prelate the Bishop of Durham—I do not think I misinterpret his words—spoke of the general importance of the marriage rules on affinity in support of the stability of family life, and in essence, as I understood him, he and the right reverend Prelate the Bishop of Norwich said the Bill was too sweeping. In addition, I think it is fair to say that there are serious arguments to support the contention that the complete removal of the rules about marriage of those related by affinity could in some cases threaten that stability. However, clearly there is a broad measure of agreement about the desirability of making some standing arrangements to relieve hardship in particular cases; that is, standing arrangements other than the procedure, both cumbersome and expensive, of a personal parliamentary Bill.

The noble Baroness spoke of the statutory procedures which were started in Australia and still continue in New Zealand, and of course there are the procedures of the Roman Catholic Church, which for many centuries, I believe, has had its own internal arrangements for the grant of ecclesiastical dispensations, but these are available, as one would expect, only to members of that Church and in circumstances where the proposed marriage would be valid under the secular law. In principle there may be, indeed I think there is, something to be said for having a special procedure. But there remains the problem, which was so clearly brought out in the speech of the noble Lord, Lord Boston of Faversham, of affording sufficiently precise guidance to the courts so as to make the issues justiciable.

It is clear that the important issue—namely, the effect of the Bill on family life—has as its focus the possibility of marriage between step-parent and step-child. At Committee stage of the first Bill of the noble Baroness in the closing weeks of the last Parliament proposals were put forward for the introduction of a special age limit to govern marriages to which the Bill would apply; although the only mention of this matter was I think by the noble Lord, Lord Robertson of Oakridge. An amendment of this kind might go some way to meet the concern which has been widely expressed in relation to the case of step-parents and step-children, although of course it could not provide complete assurance to those who feel anxious on that matter.

Finally, I should like to refer to the drafting of the noble Baroness's Bill. There may be an argument that in a matter of this kind the law should be consistent throughout Great Britain. As drafted, the Bill does not extend to Scotland, and if it makes progress the House might like to consider amendments to amend the law of Scotland as well as that of England and Wales. I am told that it would be necessary to amend the Scottish law of incest, which is somewhat more extensive than that obtaining in England and Wales.

There would also have to be technical amendments designed to cover the circumstances of marriages where one, or both, parties had a domicile outside Great Britain, or where the marriage was celebrated in another country. If the Bill is given a Second Reading by your Lordships, I shall be ready to co-operate with the noble Baroness, Lady Wootton, in seeking to draw up appropriate amending provisions for submission to your Lordships' scrutiny during later stages of proceedings on it.

9.10 p.m.

Baroness Wootton of Abinger

My Lords, I am most grateful to the noble Lord, Lord Belstead, for his very kind and co-operative speech, and should the Bill be given a Second Reading this evening I shall indeed be very grateful if I have an opportunity to co-operate with him in drafting amendments that may be desirable to make it more effective and more precise. I find it exceptionally difficult to reply to the debate because, as far as I can see, for the most part there has been no meeting of minds on the main issues, except in regard to certain things which I shall mention in a moment. There has been no meeting of minds in the sense that practically no attention has been paid to most of the positive arguments that I have put forward in support of my Bill. These were ignored. There was, for instance, the fact that the prohibitions of the present degree of intensity are not widely scattered through other countries that have more or less a common culture with ourselves.

I find that there has been a common agreement that we are all interested in the institution of marriage and that we all have a regard and a respect for the institution of marriage and for the maintenance of what has been called the integrity of the family. However, I think it was the right reverend Prelate the Bishop of Norwich who said that the Bill would lead to the degradation of the family. I tried to point out that the present situation injures those de facto families, many of which after all have maintained stability for very long periods, indeed in many cases for much longer periods than are observed by a good many marriages broken by divorce. Those de facto families are ignored. One matter about which I spoke but to which no subsequent reference was made is that of the position of the children of such marriages. That point seems to me to contain one of the most important arguments for allowing the relaxations to become general.

I think that the right reverend Prelate the Bishop of Norwich referred to the fact that not everybody is a member of a particular church, or certainly not of the Church of England. As my noble and learned friend Lord Gardiner said, it is of course obligatory for any person who belongs to a religious denomination which holds certain acts to be against that religion to refrain from those acts. But I do not think that we are now in a state in which the fact that some, not necessarily all, spokesmen for the Church find all affinity marriages that are now prohibited to be contrary to their religious belief justifies the imposition of a similar prohibition on the rest of the community, and I hardly think that in this day he would claim it.

The only solution that seems to be suggested to what is recognised as a real problem is that there should be some special investigation. As my noble friend Lord Boston has pointed out, special investigations must be done by someone, and whoever they are done by they may involve, and probably must involve if they are to have any significance, very detailed inquiries into the personal history of the particular persons involved; and I know that many of the couples with whom I am acquainted would shrink from that kind of private investigation into matters which are, after all, their private concern. That is one difficulty. Of course, if the law became general probably younger couples would be asking for permission, and they might be less resistant because there would be a less long history to inquire into; but I still think that they, too, would object to detailed investigations into what their sexual and familiar relations had been. That is one difficulty about it.

Another problem is that we have to decide, as my noble friend Lord Boston said, who is to make these investigations. I think the experience in Australia, which tried them and threw them away, and the experience in New Zealand (which could find me only two instances, both successful, and, although I have no particular details of them, I was given the impression that they were rather like the ones we have had here) does not encourage us to experiment along those lines.

I can only repeat that there have been many references to compassion but, if I may say so, I think very little compassion has been shown by the opponents to this Bill to those persons who really suffer from the situations with which it attempts to deal. Certainly such compassion has not been widely shown in this Chamber tonight, and nothing really effective or positive has been suggested by those on the opposite side—and I do not refer to the Benches. Nothing effective has been suggested which would really give vent to that compassion among these people and among younger generations in similar situations who are following in their footsteps. Therefore, I can only beg your Lordships to take the Bill as it stands at present. I will say now that I would not myself propose an amendment as to age but I am not convinced that I should oppose it, largely because I think it is a great pity to have too many ages of adulthood. We have one or two already, and we have tidied some up; but that is a question which will arise, I think, if at all, at Committee stage. I therefore ask your Lordships to give this Bill a Second Reading.

The Lord Bishop of Norwich

My Lords, before the noble Baroness sits down, may I, with your Lordships' permission, take up the use of the word "degradation"? It was the word "deprivation" in relation to stability in the family that I was using, not "degradation".

Baroness Wootton of Abinger

My Lords, I apologise if I misheard the right reverend Prelate.

9.17 p.m.

On Question, Whether the said Bill be now read 2a?

Their Lordships divided: Contents, 49; Not-Contents, 20.

CONTENTS
Airedale, L. Llewelyn-Davies of Hastoe, B.
Ampthill, L. Lovell-Davis, L.
Aylestone, L. Mackie of Benshie, L.
Beaumont of Whitley, L. Monson, L.
Birkett, L. Northfield, L.
Boston of Faversham, L. Oram, L.
Brockway, L. Peart, L.
Brooks of Tremorfa, L. Pitt of Hampstead, L.
Craigavon, L. Ponsonby of Shulbrede, L.
David, B. Raglan, L.
Davies of Leek, L. Ritchie-Calder, L.
Dowding, L. Robbins, L.
Evans of Claughton, L. Ross of Marnock, L.
Gainford, L. Segal, L.
Gardiner, L. Soper, L.
Goronwy-Roberts, L. Stamp, L.
Hale, L. Stedman, B.
Hanworth, V. Stewart of Alvechurch, B.
Hughes, L. Stewart of Fulham, L.
Jacques, L. [Teller.] Teviot, L. [Teller.]
James of Rusholme, L. Tweeddale, M.
Jeger, B. Underhill, L.
Kilmarnock, L. Wells-Pestell, L.
Kirkhill, L. Wootton of Abinger, B.
Listowel, E.
NOT-CONTENTS
de Clifford, L. Morris, L.
Durham, Bp. Norwich, Bp.
Gormanston, V. Orkney, E.
Hailsham of Saint Marylebone, L. Robertson of Oakridge, L. [Teller.]
Halsbury, E. St. Davids, V.
Harvington, L. Saltoun, Ly. [Teller,]
Hylton-Foster, B. Strathclyde, L.
Lauderdale, E. Sudeley, L.
Lindsey and Abingdon, E. Torphichen, L.
Lyell, L. Winchester, Bp.

Resolved in the affirmative, and Motion agreed to accordingly: Bill read 2a, and committed to a Committee of the Whole House.