§ 11.50 a.m.
§ Lord Elton
My Lords, I beg to move that this Bill be now read a second time.
The Bill before the House today is designed to amend the law of England and Wales and the law in Northern Ireland relating to the formalities of marriage. If your Lordships agree to, it and if it is accepted in another place, it will, in certain carefully defined circumstances, enable marriages of specified catergories of persons to be solemnised at their place of residence. The Bill should be seen in the context of the present marriage law and it may save later confusion if I start by reminding your Lordships that the marriage laws of England and Wales, on the one hand, and those of Northern Ireland, on the other, are quite separate and distinct. In England and Wales, the solemnisation of marriages is confined in general to register offices, churches and chapels of the Church of England and the Church in Wales and to other places of worship registered for the solemnisation of marriage.
There are a few exceptions to this general rule. For example, it does not apply to Quaker and Jewish weddings or to marriages solemnised on the authority of a special licence granted by the most reverend Primate the Archbishop of Canterbury under the Ecclesiastical Licences Act 1533. Nevertheless, the general principle is that facilities to marry are restricted to prescribed places, and there is a good deal to be said in favour of it. The arrangement ensures that weddings take place in buildings which are known and recognised in the community, as places where marriages can lawfully take place and which are under 481 the control of responsible bodies who will see that the requirements of the law are observed. This helps to avoid clandestine marriages. The requirements as to place of marriage are, of course, supported by additional requirements for the prior giving of notice of marriage and the registration of marriages after solemnisation. Those who know the parties are thus given the opportunity to draw attention to any lawful impediment to the proposed marriage and, in the case of minors, for the parent or guardian to give or withhold his consent.
In Northern Ireland the law relating to the formalities of marriage is rather different. As in England and Wales, civil marriages must be solemnised in register offices. Marriages according to religious ceremonies (apart from those of Jews and Quakers) must generally take place in churches or other buildings registered for the solemnisation of marriages. But marriages solemnised according to the rites, forms or ceremonies of some denominations may be authorised by the appropriate church authorities to take place anywhere. The Church of Ireland, the Presbyterian and Methodist Churches, for example, may grant special licences where one of their members is a party to the marriage, while Roman Catholic marriages are subject to little legal formality as regards solemnisation. Such authorisations, however, may not be considered appropriate by the church authorities in particular cases.
Despite the difference in the law of Northern Ireland, the issue remains the same as that in England and Wales: many marriages are restricted as to the place where they may be solemnised. That then is the context in which I ask the House to examine the Government's proposals. Desirable as I believe them to be as a general rule, the restrictions on the place of marriage have been found to bear hardly on certain categories of persons who wish to marry; hence the Government believe that a limited amendment of the law should be made.
The first category to which the provisions apply is that of disabled persons who are housebound and who, because of their continuing illness or disability, cannot go or be taken to an authorised place of marriage. Such persons may be living in their own homes, in a residential care home, in a hospital or in a nursing home. They may be suffering from any condition from severe physical disability or agoraphobia. The Marriage (Registrar General's Licence) Act 1970, which applies only in England and Wales, already affords some relief in the circumstances of housebound persons who wish to be married. However, its use is fairly narrowly limited, being available only to persons who are shown to be seriously ill and suffering from an illness from which they are not expected to recover. It is also the case, as I have mentioned, that in suitable circumstances the most reverend Primate may grant a special licence under the Act of 1533 for a marriage to be solemnised according to the rites of the Church of England in any place in England or Wales, which would include a housebound person's home. However, this procedure is not in practice always appropriate; for example where the parties are not members of the Church of England or one or other of them has a former partner still living.
482 This Bill would widen the categories of circumstances in which a housebound person could be married in the place where he or she is living. At present he or, more probably, his or her future spouse, has to give notice of marriage to the superintendent registrar (or, in Northern Ireland, to the registrar) of the district or districts in which the couple reside. To qualify for the new facility under the Bill he will now need to furnish information additional to the normal particulars then required in all cases. This will comprise a medical statement in a form to be prescribed by regulation. In the statement the doctor will have to say that it is his opinion that by reason of illness or disability the patient ought not to move or be moved from his place of residence and that the position is likely to remain the same for at least the following three months. This medical statement must be signed by the doctor not more than 14 days before notice of marriage is given to the superintendent registrar in England and Wales or to the registrar in Northern Ireland.
I have no doubt that the House will regard this part of the Bill, enabling severely disabled people to marry in their own homes or in the hospital, or other place in which they are living, as a humanitarian measure. It meets with the approval of the main voluntary organisations who are concerned with and provide care and accommodation for severely disabled people. It is supported by the medical profession and by religious denominations in England. I therefore commend to your Lordships' House these proposals for alleviating the difficulties faced by some disabled people in arranging to marry.
I should now like to turn to the provisions of the Bill about the marriage of detained persons. When it comes to getting married, prisoners and persons detained in mental hospitals face a similar difficulty. In order to be approved by the ecclesiastical authorities or registered by the Registrar-General as a place where marriages may be solemnised in accordance with the law, a church or other building must be a place of public religious worship. Prison and hospital chapels are not public in this sense and may not therefore be used for the holding of marriage services, while civil marriages must take place in register offices.
At this point I should remind your Lordships of an international obligation which is relevant to the marriage of detained persons. This is contained in the European Convention on Human Rights. Article 12 of the Convention guarantees to men and women of marriageable age the right to marry. Clearly the mere fact of the imprisonment or detention prevents a detained person from exercising that right fully. The European Commission on Human Rights has recently considered two cases which raise the question of how far the rights guaranteed by Article 12 of the convention would apply to prisoners. The commission's opinion was that the right to marry was, in essence, the right to form a legally binding association between a man and a woman and that this right should not be denied on the grounds that, as one partner was detained, the couple would not be able to live together. The commission concluded that the imposition of a substantial delay before a prisoner could exercise his right to marry, as would often happen if a prisoner had to wait until the end of his sentence, was a violation of 483 Article 12 of the convention. I should perhaps make it absolutely clear that this does not mean that prisoners have either the right to live with a spouse or the right to receive conjugal visits.
The Government have accepted the commission's findings but, as things stand, prisoners are not able at present to marry in a prison established in England and Wales. Consideration had therefore to be given to making arrangements for a prisoner who wishes to marry to go to a convenient church, chapel or register office. Sometimes this is not difficult because the prisoner can be given temporary release for the wedding; but in many cases arrangements have to be made for the prisoner to be escorted by staff both to and from the place where he can marry.
Your Lordships are well aware of the fact that the prison system in England and Wales is under severe pressure. To prevent the workload becoming unmanageable, both for prison staff and in some cases for the police who would have to make security arrangements for the ceremony—and these can be considerable in the case of notorious or dangerous prisoners—significant restrictions still have to be imposed on the circumstances in which prisoners marry. The arrangements we propose are very much less restricted than previously. Essentially, a prisoner will normally be allowed to marry if he is not expected to be at liberty within the next six months, either on completion of his sentence or on the pre-release employment scheme or on home leave. It is generally assumed that an unconvicted or unsentenced prisoner will be in custody for only a short period, but he normally will be allowed to marry if he remains in custody for four months. Exceptions can, of course, be made if they are justified.
Under the Bill, marriages may be solemnised in a prison or hospital where a party to the marriage is detained. These provisions therefore will enable both the burden on the prison service and on the police of making arrangments for weddings outside prison to be substantially reduced, and at the same time better enable us to meet our obligations under the European Convention on Human Rights. As with the housebound persons category, notice in respect of the marriage of a detained person will have to furnish additional information to the superintendent registrar or, in Northern Ireland, to the registrar. This will consist of a statement, made in a form to be prescribed by regulation, in which the prison governor or hospital managers will state the establishment where the person concerned is detained and indicate that the authorities in charge have no objection to the proposed marriage being solemnised in the prison or hospital as the case may be. This information will be similarly provided by the corresponding authorities in Northern Ireland to the registrar.
Let me now turn to detained mental patients. In the Government's view the arguments in support of giving additional facilities for the marriage of prisoners apply equally to persons detained for substantial periods under the mental health legislation. Neither category has ready access to authorised places of marriage under the present law and both are entitled under the European Convention on Human Rights to the exercise of the right to marry.
484 My right honourable friend the Secretary of State for Social Services has consulted the medical profession on the proposals contained in the Bill in so far as they will apply to persons detained in a mental hospital. These consultations were carried out with representatives of the special hospitals, the Royal College of Psychiatrists and the National Health Service. Corresponding consultations have taken place in Northern Ireland. The view that clearly emerged was that in principle facilities should be made available for the marriage of detained patients in the hospital in which they are living, It was however recognised that the practical operation of any such arrangements would need to be handled carefully having regard to the circumstances of long-term patients in mental hospitals.
I should like to make it abundantly clear to the House that it will not be open to hospital managers to refuse to provide a statement of willingness to have the marriage of a detained patient in hospital solely on the ground that those responsible for the patient's treatment believe it will be better for the marriage not to take place, any more than they can enter such an objection if a patient at present wishes to marry outside the hospital. The only grounds for objecting will be, as at present, that the patient does not have the necessary mental capacity to understand the nature and purport of the marriage ceremony. Most detained mental patients do have this capacity; but where they do not, it will be open to the doctor in charge of the patient's treatment, or anyone else concerned, to enter at the appropriate time a caveat with the superintendent registrar of marriages for the district in which the hospital is situated under Section 29 of the Marriage Act 1949. There is corresponding provision in Northern Ireland. This will give the grounds of objection to the marriage.
It would then fall to the superintendent registrar or the registrar general in Northern Ireland to decide, on the basis of the evidence furnished to him, whether or not the marriage should be allowed to proceed. The arrangements for the entering of a caveat are available in relation to all proposed marriages, whether the parties are at liberty or in detention, and attention is already directed to them in notices that are publicly displayed in register offices throughout the country.
Turning now to the Bill itself, in relation to England and Wales the main purpose is set out in Clause 1 in which the categories of housebound and detained persons are defined. Subsection (7) of that clause gives effect to the more detailed procedures and amendments of the existing law contained in Schedule 1 to the Bill.
I do not propose to trouble your Lordships' House with a detailed exposition of all the changes proposed to the 1949 Marriage Act set out in Schedule 1, some of which are rather technical in character. But noble Lords may be interested to know that what is proposed is no more than a modification of the existing procedures in England and Wales. Its effect will be that, after notice of a proposed marriage has been given and after the period of public inspection of the notice has elapsed, the superintendent registrar may, on application by the parties, issue his certificate authorising the marriage to be solemnised between the 485 named persons at a specified place of marriage. That place will, in these cases, be the place of residence, whether at home or in a hospital or prison, of the housebound or detained person.
As with marriages under the present law, such a marriage may take a number of forms. It may be by civil ceremony in the presence of the superintendent registrar of the registration district in which the marriage is solemnised or it may be according to the forms, rites or ceremonies of a religious body. Where the marriage is according to the rites of the Church of England, the officiating clergyman will himself register the marriage in the marriage register books of the parish in which the place of marriage is situated. In other cases where the marriage is by religious forms, the minister will use the form of service of the parties' denomination, and the marriage will thereafter be registered by a registrar of the registration district concerned. The usual fee of £16 will be payable for the attendance of the registrar, and I expect that the churches will follow their usual practice with regard to the payment of marriage fees to ministers.
Special fees will be payable in cases where it is necessary for a superintendent registrar to go to a prison or hospital or, in such rare cases, where he has to go to a private home, in order to be given notice of marriage. A similar fee will be payable for his attendance at the solemnisation of a civil marriage at a person's place of residence, whether at home or in a hospital or prison. These special fees are required to cover the cost of providing this special service away from the superintendent registrar's office. In each case, they will be of £20. I should explain that ordinarily a superintendent registrar performs his duties, whether it be the receipt of notices of marriage or attendance at a civil ceremony of marriage, only in his office.
Clause 2 of the Bill sets out consequential amendments with which I need not trouble your Lordships' House atthis time. The provisions relating to Northern Ireland are set out in Clauses 3 to 11 and Schedule 2 and achieve a similar result using slightly different means; they are necessarily separate and distinct provisions because the law in Northern Ireland is different from that here.
Clause 3 introduces provisions relating to marriages of housebound and detained persons on the authority of a licence issued by the registrar general in Northern Ireland. This is a new authorisation for marriages in Northern Ireland, where at present there is no common form of authority corresponding to the English superintendent registrar's certificate. Not all forms of marriage may be solemnised on the present registrar's certificate in Northern Ireland. Clause 4 sets out the procedure for the issue of a licence by the registrar general and provides for the transmission of the necessary information from the registrars to whom notice of marriage is given under Clause 3.
Clause 5, in making provision for the forms of marriage ceremony which may be used, closely follows the requirements of the present law, except that the clause contains a more general requirement for the presence of the registrar of the district in which the marriage is solemnised; the registrar will register the marriage in his marriage register book immediately after solemnisation. Marriages solemnised according 486 to the rites of the Roman Catholic Church will not require the presence of the registrar because such marriages involve a different system of registration under the existing law which does not require registration in any marriage registers immediately after solemnisation. Schedule 2 gives effect to certain detailed procedures under the present marriage law, with appropriate modifications.
Your Lordships will notice that the Bill does not apply to Scotland. The provisions in the Marriage (Scotland) Act 1977 already suffice to allow religious and civil marriages to be performed anywhere in Scotland.
The Government believe that the provisions of this modest Bill will be helpful to a number of people whose personal circumstances, for one reason or another, are substantially different from those of most of the community. It will also enable the United Kingdom to meet more fully its international obligation under the European Convention on Human Rights. I tried to keep the length of my introduction shorter than it has turned out to be, but it is a rather complex and, for some people, a very important measure and I do not think I should have told your Lordships less than I have. I hope I have engaged the sympathy of your Lordships, and I beg to move.
§ Moved, That this Bill be now read a second time.—(Lord Elton.)
§ 12. 11 p.m.
§ Lord Mishcon
My Lords, I would assure the noble Lord, Lord Elton, that he is the recipient of not only the sympathy of this House but its appreciation for the way he has dealt with a very useful, humanitarian but nevertheless somewhat complex measure. It is a delight, if we have to meet on a Friday, that we should deal with matters which are non-controversial, as they are this morning, all three of them. On behalf of my noble friends on these Benches, I welcome this particular measure, which is indeed a humanitarian one. I have little, if anything, to say in regard to those who are housebound or who are in a hospital or an institution and are therefore deemed to be detained under the provisions of this Bill. It obviously is a most kindly thing that those who are, by reasons of health, unable to visit a place of worship or a registrar's office will be accommodated now by a doctor's cerificate saying that the condition is likely to last for some three months in the case of somebody who is housebound; and therefore the registrar will, with great humanity, attend at the usual place of residence—which, in the case of the individual concerned, usually means the home—so that the marriage can be solemnised there in accordance with due form.
My only question in regard to that aspect of the Bill concerns the fee, which I see is set down in the Bill and was indeed referred to by the noble Lord, Lord Elton; it is a special fee for attendance of £20. The Bill says that "the registrar is entitled to receive"—I believe that is the wording—the sum of £20. I wondered whether the noble Lord, Lord Elton, with that softness of heart that we know he has, saw that those words were included so that in cases of special hardship there could be either a waiver or a reduction of that fee. One 487 can well imagine, for instance, the case of a person who is an invalid or housebound who might think that the fee of £20 could be so easily spent for a happy wedding ceremony on something a little more essential than the registrar's fee for this particular visit. I wonder whether the noble Lord can help the House on that matter.
My second and, I believe, rather more important point refers to those who are detained: I am referring to those in prison. Again, this is a humanitarian measure but, as the noble Lord, Lord Elton, pointed out, we are complying with our international obligations under Article 12 of the European Human Rights Convention and indeed the finding of the European Commission in regard to these matters.
My point of concern there is that, as the noble Lord said, the usual place of residence is deemed to be the place where the person is at the moment of the marriage. In the case of a detained person this would obviously be a prison. I am used to seeing in rather unfortunate circumstances, normally on behalf of clients, their original marriage certificate. I say "unfortunate" because, as a lawyer, when one sees a marriage certificate it is normally to deal with the dissolution of the marriage and not the creation of it. I therefore remember that there is a portion of the certificate where one has to state the place where the marriage is solemnised. My fear is that, if it be at a chapel or in some other part of a prison, those words will be there for children to see, possibly in the case of a father or mother who has turned over a completely new leaf, having gone through a marriage ceremony. Certainly in the case of children. I would hate to see a form of marriage certificate which, when a marriage certificate has to be produced, tells the sad history for all time. There are many occasions when a child may have to produce a marriage certificate or to refer to it for various purposes, and I am sure that your Lordships would not wish to see recorded on that marriage certificate the place where it was solemnised.
If I am wrong in thinking that this will be the position or that special provision is being made, I should be extremely happy to know about that; but I thought this was a proper matter to bring to the attention of your Lordships. Apart from those two matters, my noble friends and I welcome the provisions of this Bill, which, as I say, is a proper, humanitarian and very kindly measure.
§ 12.16 p.m.
§ The Lord Bishop of Derby
My Lords, like the noble Lord who has just spoken, I should like to express my welcome to this Bill in general principle, and to thank the noble Lord, Lord Elton, for his exposition of it. It is clearly moved by compassion and seeks to meet the difficult circumstances which certainly the granting of a special licence by the Archbishop of Canterbury is inadequate to cover. But I must express, without wishing to be controversial, some hesitations over detail, in the hope that at a later stage some account may be taken of them and some possible difficulties and inconsistencies in administration removed.
The Bill seeks to comply with Article 12 of the Human Rights Charter, which states: 488Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right".That is a statement with which no one can argue, but it appears that the interpretation of it is being made on strictly legalistic grounds, taking the first part of this statement:Men and women of marriageable age have the right to marry",stressing the right, and forgetting the second part, which implies the exercise of responsibility for and towards the spouse and any children, in accordance with national laws.
The question that must be raised is this: is it morally right to facilitate a marriage in conditions which inhibit the exercise of the responsibilities implicit in marriage and understood both by Church and state, and expressed in the Marriage Act 1949? It may well be that certain exceptional circumstances have to be allowed for, but it is important that this general principle should still be seen to be clearly recognised.
A second point about the nature of marriage itself is the genuineness of consent in some of the circumstances envisaged by the Bill. Even when there is no question of mental health involved, the artificial surroundings of an institution may make bonds between inmates which may not survive outside. In a mental hospital a doctor might be asked to facilitate the marriage of a patient, but would be reluctant to have the deciding voice. I wonder whether it would not be a great improvement in this Bill if the parts of it dealing with mental patients were omitted. The other situations are much more straightforward and easier to manage. If provision has to be made for detained mental patients, ought this not to be included in a separate Bill, where the very complex circumstances could be provided for? This might be regarded as being an anomalous exception at the moment, but better a separate Bill than have serious problems arising over these provisions. Certainly, I am aware of some people connected with mental hospitals who have great concern about what is involved, even with the careful provisions included in the Bill.
But I must turn to certain questions of ecclesiastical discipline which affect the Church of England in particular, and the noble Lord, Lord Elton, has referred to some of these already. For the Church of England, the parish church is regarded as being the most suitable place for a marriage and likely to provide a much more appropriate atmosphere than an institutional context. The Bill as drawn would enable prison marriages to take place regularly outside the context of the church building. What is the reason for this and how frequently is this exception likely to occur?
I am aware that some prison chaplains have great concern about this. They can see the need for exceptions being made for handfuls of extremely dangerous prisoners, and account must be taken of those strains on the prison service and the police force to which the noble Lord, Lord Elton. has referred. To what extent will the wishes of the couple about the place of marriage be regarded as being paramount? I wonder whether, through discussion, it would be possible to have some limitation on the frequency with which the marriage of prisoners takes place in prison 489 when there is not much opportunity given for marriage outside.
The general rule regarding Church of England services is that they may take place only with the leave of the person having the cure of souls in the area in question. This ensures some degree of control by the incumbent—the vicar or rector—over what is publicly done in the Church's name. An exception exists for institutions to which a person is licensed under the Extra Parochial Ministry Measure 1967, but this Measure, and Canon B41 made under it, specifically exclude marriage. So the general rule applies and, if the Bill were passed in its present form, hospital and prison marriages by a chaplain would still require the incumbent's consent. It is left unclear whether the incumbent's obligation, subject to safeguards, to marry parishoners in the parish church would apply to marriages under the Act in prisons or hospitals. If it does, the situation would be that he could refuse consent to the chaplain or visiting minister officiating, but could not refuse to officiate himself.
Some of the safeguards that exist to prevent the Church being compelled to officiate at marriages of which it does not approve—for example, of divorced persons—gain their effect by allowing the minister in charge of a church to refuse consent to its use. These would lose their effect when a church is not intended to be used anyhow. At the very least, an incumbent would be obliged under the Bill to countenance a prison or hospital marriage that had taken place, whatever the circumstances, by making the parish registers available for its registration.
When a special licence is issued by the Archbishop of Canterbury, the incumbent of the parish concerned has to give his consent to the use of the marriage registers and he may refuse consent. Certainly, if this Bill is passed, the Extra Parochial Ministry Measure will need to be revised, the General Synod will have to revise Canon B41, and there may be other changes necessary in ecclesiastical law.
What I wish to urge at this stage is that there should be careful discussion and consultation about these various complications before the Committee stage of the Bill, so that any amendments that are proposed may be brought forward by general consent, both on the part of the Church and on the part of those most concerned to bring this Bill into effect.
§ 12.25 p.m.
§ Lord Wilson of Langside
My Lords, I added my name to the list of those wishing to speak on this Bill with more than usual reluctance, not only because the Bill, as the noble Lord, Lord Elton, has said, applies only to England, Wales and Northern Ireland—and who am I, as a Scot, to pontificate about what should be the formalities of marriage in England, Wales and Northern Ireland?—but also because the Bill, as well as being a sensible, humanitarian and, I imagine, uncontroversial measure, has been presented with admirable clarity, as one would expect, by the noble Lord, Lord Elton. In these circumstances, on the whole, it is better, unless one has some original wisdom to express, to hold one's peace.
490 The sole reason why I am not holding my peace is that in my later years, unlike my earlier years, I have become a strong advocate of the Anglo-Scottish symbiosis that was entered into in 1707. This partnership is often subjected to strains, not only from the Scottish end but sometimes from the other end as well, and I am tempted never to miss an opportunity to extol the benefits and attractions of this fruitful partnership.
It humbly seems to me that here the English have perhaps learned a little from our somewhat more liberal laws governing the formalities of marriage. I shall not enter into the history of that, but I should have thought, looking at our experience over the centuries, that what that has been may perhaps help to allay the anxieties that our other partners may have about clandestine marriages which were touched on by the noble Lord, Lord Elton. This is just an illustration of how the experience of members of the partnership can be helpful to all parties. I hope that it may have played a little part in the Government's preparation of this, I trust, altogether welcome Bill.
§ 12.28 p.m.
§ Lord Mancroft
My Lords, I, too, should like to add a few words of welcome to this useful and humanitarian measure, and to thank the Minister for the clarity with which, as usual, he has put a fairly complex matter before your Lordships' House. Although the matter involved is simple, the Bill is complex, because no measure affecting matrimonial affairs is anything except complex. Your Lordships will remember that the noble Lord, Lord Renton, introduced a debate a few weeks ago raving against the gobbledegookery of some draftsmanship. I would not go so far as to say that these 17 pages contain much gobbledegookery, but they get extremely near it. I can only hope that some of the poor people who are going to benefit from this Bill will be able to understand it slightly better than I have.
For example, I appear seriously to have misread Clause 5(1), which I thought at first—I hope I am right, but I fear I am not—goes to a very vital and major part of the marriage ceremony of this country, so I will read it:(l) A marriage to be solemnised on the authority of the Registrar General's licence shall be solemnised, at the wish of the persons to be married—(a) according to such religious form or ceremony as the persons to be married see fit to adopt".For many years, whenever this matter seemed appropriate, I have done my best in your Lordships' House to get some improvement into the civil service of marriage as it now prevails in this country. I had hoped that the clause in the Bill which I have just read out would have achieved this for me, but now I am not so certain.
I have always tried to get a little more dignity, solemnity and importance into the civil marriage ceremony. Those of your Lordships who have attended such a ceremony, either in a personal capacity or as spectators, will agree with me that in most cases it is a very arid and unimpressive ceremony. It has little effect on what should be one of the most important days in people's lives. For instance, no religious element is allowed to be 491 introduced into the ceremony. More people are now regularly getting married in registry offices than ever before, some because they are non-believers, others because they are believers but, because they have been through the divorce courts (even though we are now taking a more humanitarian view of that old, dreadful expression "the guilty party") they are not allowed to be married in a religious place. Therefore, though they would like to have their marriage blessed, they are not allowed to have that blessing.
Many people now have a ceremony of blessing in church after marriage in a registry office. That form of blessing is getting very near to a marriage service. Some people, I believe, can find a clergyman who is prepared to marry divorced persons in church, provided that no scandal is attached to their behaviour beforehand and provided that they can get round their bishop. But this is still a matter of confusion. Otherwise, no blessing is allowed and the service is, as I have already said, arid and unimpressive. To do them justice, some registrars—it is going to be difficult for them in this Bill to do it—manage to put on a brave show. They provide a suitable room, they wear suitable robes, there are flowers. The matter is well ordered. Parking facilities are properly laid on, arrangements are made for the guests, and so on. But, as often as not, it is a very, very squalid little service, to be got over with as hurriedly as possible.
The law which is referred to in the Bill is the Act of 1949—the one point which I am making in particular. As your Lordships will remember, all that is required by the law is these words:I do solemnly declare that I know not of any lawful impediment why I [John Smith] may not be joined in matrimony to [Mary Brown]. I call upon these person here present to witness that I do take thee"—I rather like the "thee" because it is a concession to those, like myself, who prefer a little ceremony—[Mary Brown] to he my lawful wedded wife".And that is all it is. Hey presto! Mary—whether thou hast spotted it or not—thou art now Mrs. John Smith (although the newspapers and the media will refer to her as Mrs. Mary Smith, and then put her age in brackets afterwards). There are a few formalities to be completed—certificates, the register to be signed, and so on.
I have complained about this before and I complain about it now. The last time I complained about it I was set upon by the Institute of Population Registration, no less. They said, "Look, do something about it yourself. Redraft the form of ceremony. We will put it to the Registrar General and see if we can get him to approve it". It was much more difficult than I had imagined. Eventually I plucked up courage and went to see the Lord Archbishop, Lord Fisher, that great and good man of happy memory. Anybody who went off to tackle Lord Fisher did so with his courage in both hands. I said to him, "What is the objection to asking the registrar to call for a modest blessing on those believers who would like to have their marriage blessed? I think that this is a vitally important point". Lord Fisher said, "No, it is not possible because the ceremony does not take place on consecrated ground in a consecrated building". Taking a deep breath, I said, "But look, in the House of Lords, prayers are said 492 before every day's meeting, and we then go on to debate some very controversial matters. But we would hate not to have our, prayers said beforehand". In schools—unfortunately, in not enough of them now—prayers are said at the beginning of the day's work. If you attend a banquet—be it a modest territorial dinner in the local drill hall or a slap-up affair at the Mansion House—grace is said beforehand. A blessing in an unconsecrated building is called upon us and our activities. Therefore I had hoped that the Bill was going to carry out my wishes. I said to the Archbishop, who would not have any of these points at all—and this was a very rash thing indeed to have said—"Archbishop, if the bride or bridegroom were to sneeze in the middle of the ceremony in the registrar's office, could the registrar say 'bless you'?" The Archbishop of Canterbury showed me the door more quickly than the door has ever been shown to anybody before.
I shall be happy to know whether I am right. If I am not, I shall try to amend the Bill, though I realise that it is going to be a difficult task. However, after 41 years of trying to amend Bills as a Member of your Lordships' House, I never give up hope.
§ 12.37 p.m.
§ Lord Simon of Glaisdale
My Lords. I, too, should like to be associated with the tribute paid to the noble Lord, Lord Elton, for his very clear exposition of the Bill. The formalities which are required for a valid marriage are not, in my respectful submission, lightly to be relaxed, but I agree with your Lordships that the noble Lord made a very strong—indeed, I think overwhelming—case for the limited relaxation which this Bill vouchsafes.
For many, many years, for centuries of our history, marriage could be brought about by a mere exchange of words of consent to marry, expressed in the present tense. It was those words, the present tense, that caused all the trouble. Young people in the throes of romantic love are not apt to be discriminating as to the tense which they use to express their meaning. So there was a constant spate of litigation, contention and scandal as to whether a marriage had in fact been brought about. The church used, as a matter of discipline merely, to insist that the exchange of words of present consent should be followed, even if not expressed, in an ecclesiastical building, a church. But that was merely a matter of discipline and did not either effect or affect the exchange of consent which constituted the marriage. The Roman Catholic Church dealt with that evil in the Council of Trent, but the Council of Trent did not apply in this country because it took place after the Reformation. In the 18th century clandestine marriages became a scandal. They were so often sham marriages—a form of rape, in other words. In Lord Hardwicke's Act of 1753 formalities and publicity were required for the first time.
I do not want to be controversial about an uncontroversial measure, but I was a little surprised to hear the noble Lord, Lord Wilson of Langside, say that England had followed the more liberal Scottish attitude in relation to formalities. It was my impression that it was not until 1939, but that it was then that Scotland caught up with what England had done in 1753. 493 I have only two more points. One is following up the point made by the noble Lord, Lord Mishcon, as to the form of certificate. I may be out of date, but I thought that one could now obtain a limited certificate of marriage. Whether it would meet the point made by the noble Lord, or whether it could be adapted in due course, is perhaps something on which the noble Lord, Lord Glenarthur, can comment when he comes to reply.
My second point is on the caveat of the medical superintendent. It is not to be countenanced that a person who does not understand the obligations and nature of marriage should be allowed to be married, because such a marriage is void in law. On the other hand, it seems an extreme step to give to the medical superintendent the power to make a decision against which a person cannot appeal. I wonder whether your Lordships will wish to consider the possibility of appeal to a tribunal that already exists; a Mental Health Review Tribunal. Apart from those two points and the general necessity of maintaining adequate publicity and adequate formality to marriage, I venture to support this Bill.
§ 12.42 p.m.
§ Baroness Macleod of Borve
My Lords, I too am most grateful to the Government for bringing to this House that which my noble friend Lord Elton has called "a modest Bill". I would also like to say that in 11 years of membership of your Lordships' House I have never before been able to participate in the passing of a Bill which in my view is not only welcome but which also expresses compassion, sympathy and understanding. Although it is a small Bill, it is a very important measure. I hope that in the two instances I am about to describe, I will be able to make known my views.
I wish to deal with the question of old people's homes and with detained people in prisons. Those of us who know a certain amount, as I do, about those in old people's homes will know only too well that friendships develop between people in those homes. Up until now, very few people have been well enough, even if they so wished, to go outside the home and develop the partnership into marriage. I have known old people who, despite their residence in an old people's home, died lonely people. As a result of this Bill, if a partnership does develop, when one partner ceases to live the surviving member of the marriage will be able to go on to have a partnership with a member of the opposite sex who will care for that person even more than is already done very well indeed by those who administer the old people's homes.
The right reverend Prelate asked how many marriages are likely to be forthcoming as a result of this Bill. All I can say to that is that, although I cannot tell exactly, I can assure the right reverend Prelate that if marriages are forthcoming as a result of this Bill, as I believe they will be, it will give a great deal of comfort and joy to couples in old people's homes who wish to cement their partnership.
I turn now to the case of people detained in prisons. I have experienced the hard work of being a member of the Parole Board for the past four years. I have read hundreds of dossiers on prisoners who come up for 494 release. I have been worried beyond belief at the number of common law wives who have not married, who have probably had children, and who are utterly unhappy at losing their boyfriend, who is also perhaps the breadwinner of the house. I am not one of those people who would ever think that a ring on a girl's finger will make her loyal to a man in prison. All I can tell your Lordships after four years of experience of the Parole Board is about the number of common law wives who, because they cannot marry their boyfriend in prison and cannot manage, are led astray by another man, and desert the man in prison. The number of such women is enormous. The man in prison feels lost and deserted. He feels he has no one else to go to when he comes out.
Apart from the question of marriage—and I personally believe that marriage would be right—there is the matter of the psychiatric problems suffered by the man in prison who does not know where his common law wife is, or what she is doing. This Bill will enable such young people—and older people too—to solemnise their partnership in life and to make their children part of a family. From all the dossiers I have read, I am quite certain that this will be a wonderful thing for these young people. However, I do query the matter of the address, and I would like the Government to answer this point. As the noble Lord, Lord Mishcon, mentioned, in years to come none of us would like it to be seen in any certificate that our marriage was solemnised in prison. I am quite certain that the Government can get around this point. It is the only query I have, and I hope that the Government will be able to supply me with an answer.
§ 12.48 p.m.
§ The Earl of Lauderdale
My Lords, had this Bill been an Act three months ago the sad experience which I witnessed need not have occurred. For that reason I welcome this Bill. I recently had the harrowing experience of watching a very old friend—a friend for more than 40 years—die a lingering death in hospital over a period of four months. He was dying of cancer. An operation was impossible and deep ray treatment did no more than just hold the position. He was so weak that he readily contracted other ailments, including bowel infection and pneumonia.
He was beautifully looked after by everybody concerned at Westminster Hospital—I must say that—but his one desire was formally, legally and officially to marry the girl who had looked after him for so many years. Although it was to my eye, as a layman, obvious that he was dying, that he knew he was dying and that he was shrinking before our eyes, the doctors refused to say that he was in extremis. They even went through a rather grotesque pretence that in a few days' time he could probably get up and go by taxi to the registrar's office for his wedding, and there was a lot of, I thought, cheery and quite misplaced bonhomie by a muscular Christian, who was the hospital chaplain, saying, in effect, "Get up and get out of bed". On the day that was fixed for the ceremony, to which he was to go by taxi, he was much worse, and only then were the doctors willing to declare that he was in extremis, that he really was dying. The registrar was sent for, and of course it was too late. 495 It is not for me to question the clinical judgment of the medical men concerned, but had this Bill been an Act at that time my friend, who was housebound in the terms of this Bill and had been for four or five months, could have had the registrar summoned in time. My friend could have gone in peace, and his fiancée could at least have had that last bit of comfort at the end.
§ Lord Mottistone
My Lords, I will be very brief. I welcome this Bill. I am advised in this by the National Schizophrenic Foundation, and in that respect I have misgivings on the mental health aspect of this in relation to marriages in mental hospitals, and very much sympathise with what the right reverend Prelate the Bishop of Derby had to say. I would not go so far as he did in saying that it ought to be a separate Bill, and I would hope perhaps we might be able to introduce something into this Bill which would provide a greater safeguard against what one might call inadvertent marriage in the way in which the right reverend Prelate described it to us. I would hope that perhaps we might be able to improve the Bill in that respect.
§ Lord Glenarthur
My Lords, we have had a short but I think a very useful debate on the policy and purpose of this Bill. It has been a debate which has clearly demonstrated your Lordships' sympathy with the difficulties encountered by certain categories of people who wish to be married under the law as it stands today, so I am grateful for the support which has been given to the proposals that the Bill contains. As my noble friend Lord Elton has explained, these proposals are designed to relieve hardship and to facilitate the individual's right to marry, and this is a right acknowledged in our adherence to the European Convention.
Perhaps I may now turn to the specific points that have been raised during the debate. The noble Lord, Lord Mishcon, particularly asked about the fee; that is to say, the possibility of discretion to waive the special fee of £20. My Lords, the existing law in fact allows the local authority to authorise the superintendent registrar to perform his duties without payment of a fee, and the provisions of the Bill do not affect this at all. It might be helpful if I also said, with regard to ecclesiastical fees, that no decision has been taken by the ecclesiastical authorities about fees payable to clergymen for marriages solemnised under the provisions of the Bill, but it is probable that an appropriate fee will be prescribed in due course.
The noble Lord also asked, as did my noble friend Lady Macleod, about the question of the name of the prison, effectively, appearing on the marriage certificate. I can tell the noble Lord that this will not be the case. The postal address of the prison, with no mention of the fact that it is a prison, will be the address that appears on the documents concerned. I hope that satisfies the noble Lord.
§ Lord Mishcon
My Lords, the noble Lord the Minister is being kind, as he always is, and is dealing with, I know he would realise, a very important point. Did he mean by that reply that although it will not be 496 "Her Majesty's Prison at Brixton, Jebb Road, Brixton", the address will be on the certificate as "Jebb Road, Brixton"? If it is, I can tell him that as far as I know it is about the only place in Jebb Road, Brixton, and is therefore easily identifiable.
§ Lord Glenarthur
My Lords, I hope that not too many people who read the certificates will have actually been to Jebb Road, but what the noble Lord says is correct. The private address of the prison will be shown and the words "H.M. Prison" will in fact not appear.
The right reverend Prelate the Bishop of Derby welcomed the Bill in principle and drew attention to a number of points with which I hope to deal. So far as the frequency of prison marriages is concerned, can I say that the circumstances will of course vary from case to case. The principal consideration which must be taken into account is one of security. The greater the threat to security—that is to say, the more likely the person is to escape, and whether he is a dangerous or perhaps violent criminal—the more costly will be the decision to escort him to a place outside the prison, and these are the cases that will most concern us. I do not think I can really say much more on that.
It is not possible at this time to estimate how many prisoners will wish to marry or how many marriages will be solemnised in prison—another point the right reverend Prelate raised-and how many in a church outside. The Government will need to balance the demands made on the prison service and the wishes of those seeking to marry.
Perhaps the most important point which the right reverend Prelate made was in connection with Article 12 of the convention. The European Convention has been interpreted by the Human Rights Commission as guaranteeing the right to enter into the legal status of marriage, rather than to carry out full marital responsibilities and duties, including the raising of children. In any event, it cannot be said at the time of a detained person's marriage that the detained person will never be released into the community to take up his marital responsibilities.
The measure before us does not prevent a clergyman licensed under it from solemnising marriages. This, I think, also was a point which the right reverend Prelate raised in connection with the extra-parochial ministry when he spoke just now. But his speech did raise various technical and recondite questions of ecclesiastical law which my noble friends and the officials will consider carefully before the Committee stage of the Bill.
My Lords, the noble Lord, Lord Wilson of Langside, in a general welcome to the Bill, talked about Anglo-Scottish symbiosis. I am grateful to him for his comments. I do not propose to get drawn into an argument between the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Wilson, but nevertheless I am grateful for his remarks.
The noble Lord, Lord Mancroft, talked about what he thought might be gobbledegookery within the Bill. I certainly agree with him that it is legally a very complex Bill, even if the measures it seeks to put forward are fairly straightforward. The noble Lord suggested that the marriage ceremony as conducted in 497 register offices in England and Wales is often (I think he used these words) arid and unimpressive, and unworthy of the occasion and its importance to the parties. Your Lordships will understand that it is an essential feature of a civil ceremony of marriage that it is entirely devoid of religious content. Indeed, this is a statutory requirement contained in Section 5 of the Marriage Act 1949.
The law provides ample opportunity for the holding of religious services of marriage for those who wish to have them. In practice, while superintendent registrars are encouraged by the Registrar General to ensure that marriage ceremonies in registry offices are conducted with appropriate solemnity and decorum, in keeping with the nature of the occasion, it is exceedingly difficult to embellish a civil ceremony without introducing forms that are indicative of a religious understanding of what is taking place.
The noble and learned Lord, Lord Simon of Glaisdale, raised the question of a medical superintendent invoking a caveat. It may be helpful if I say that anyone may put forward a caveat. It is up to the superintendent registrar and, ultimately, the Registrar General as to whether or not it is upheld. The noble and learned Lord also talked about the form of certificate, and I hope I covered that point—it was in relation to the address—when I referred to the remarks made by the noble Lord, Lord Mischon.
The noble Baroness, Lady Macleod of Borve, with her wide experience of the Parole Board and as a magistrate, kindly said that she thought this was one of the best measures to come before your Lordships in, I think, 11 years. I am grateful for the support that she gave to the Bill in what I thought was a most moving speech. I answered her point in relation to the address on the certificate when I spoke to the earlier remarks of the noble Lord, Lord Mancroft.
My noble friend Lord Lauderdale, in a moving speech about a case of which he has personal knowledge, amply demonstrated the need for the Bill, and I shall certainly bear in mind his remarks. I am grateful for his intervention. My noble friend Lord Mottistone, on the mental health aspects, again spoke about something which was raised by the right reverend Prelate earlier, so I do not think it is necessary for me to repeat what I said.
I have tried to answer the main points that have been raised in the course of the debate. There will of course be further opportunities in the later stages of the Bill's progress to consider more detailed aspects of the Bill as it goes through. These proposals augment the present procedures preliminary to marriage without disturbing the basic structure of the marriage law. In commending these proposals to your Lordships I should mention that there has been prior consultation with the Churches and the medical profession. These consultations have shown the proposals to have substantial support among those more closely concerned with arranging marriage ceremonies and with caring for the interests of the housebound and the mentally disordered.
This is a modest Bill, bearing on only a few individuals, but the Government make no apology for including it in a busy legislative programme. Your Lordships will, I am sure, welcome the opportunity to alleviate in 498 a small way the hardships suffered by those who are confined to their homes or hospitals by illness or disability; and I hope your Lordships will recognise the need to ease the burden on the prison service in its efforts to give effect to the right of prisoners to marry. It is therefore with confidence that I commend this Bill to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.