HL Deb 17 March 1983 vol 440 cc885-91

7.8 p.m.

Report received.

Clause 1 [Marriages of house-bound and detained persons in England and Wales]:

Lord Glenarthur moved Amendment No. 1: Page 2, line 9, leave out from ("section") to ("short") in line 11 and insert ("2, 4, 5, 35, 36 or 136 of the Mental Health Act 1983").

The noble Lord said: My Lords, in moving this amendment, it may also be convenient if I speak to Amendments Nos. 2, 4, 5, 6, 7 and 8. The House will be aware that consolidating legislation in the form of a Mental Health Bill is currently before Parliament. This Bill, if passed, will have the effect of re-enacting the provisions of the Mental Health Act 1959 and the Mental Health (Amendment) Act 1982, thus requiring revision of the references to both these Acts in the Marriage Bill before your Lordships this evening.

The position that faces us, therefore, is that if we leave this Bill in its present form it will have to be returned to your Lordships' House for amendment if the Mental Health Bill is approved in its present form. Normally this would be the proper course to follow but we are talking about a consolidation Bill which, by its nature, should be uncontroversial and I have therefore tried to anticipate what I hope would be the wish of your Lordships; namely, that by making the necessary technical amendments at this stage we can save having to reconsider the Bill for this purpose at a later date.

This then is the purpose of these technical amendments, if I may so describe them, on pages 2, 12 and 15 of the Bill. By substituting for references to the 1959 and 1982 Acts references to the 1983 Act, there is an assumption that the consolidation Bill will have effect before the Marriage Bill if and when enacted. This does not present a difficulty. The consolidation Bill should come into operation on 30th September 1983, or possibly on later dates for sections consolidated from provisions not themselves in force at present. If the provisions of the Marriage Bill become law, however, it is necessary to allow time for the general register office and the other administrations concerned to make appropriate arrangements and give guidance. I do not consider, therefore, that it will be reasonably practicable for the provisions to come into operation before the end of September.

I hope that your Lordships will see in these amendments an attempt in good faith by the Government to ease the burden on your Lordships' House and that the House will feel able to support them. The one other amendment in my noble friend's name, No. 6, to page 14, line 11, is that for the sake of drafting consistency in the Bill the words "of this section" would be more appropriate than the word "above". That is the sole purpose of this simple amendment. It is an amendment on which I shall not make any lengthy or impassioned plea on behalf of the Government, and I therefore beg to move.

Lord Mishcon

My Lords, the noble Lord the Minister has been most thoughtful in regard to the convenience of this House. From these Benches we certainly support the amendments he so lucidly explained.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 2: Page 2, line 16, lave out (" Part IV of the Mental Health Act 1959") and insert ("Part II of the Mental Health Act 1983").

On Question, amendment agreed to.

Schedule 1 [Amendment of Marriage Act 1949]:

The Lord Bishop of Derby moved Amendment No. 3:

Page 11, leave out lines 28 to 31 and insert ("either

  1. (b) stating that in the opinion of the responsible authority the circumstances of the individual case are such as to require the marriage to he solemnized within the precincts of the establishment: or
  2. (c) stating that the detained person has elected to have the marriage solemnized within the precincts of the establishment: or
  3. (d) stating that in the opinion of the responsible authority there are no circumstances which require the marriage to be solemnized within the precincts of the establishment.").

The right reverend Prelate said: My Lords, at the end of my speech at the Committee stage of the Bill I mentioned bringing the matter back in some form or other at this particular stage. I have, of course, read most carefully the records of the debates both at Second Reading and at the Committee stage. It seems to me that the case made by me and others was not really answered on either of those occasions, and particularly the latter. The main point is that Her Majesty's Government, having had a Damascus Road experience through giving serious attention to Article 12 of the European Convention on Human Rights, have undergone a conversion even more complete than St. Paul's.

Marriage outside prison, if this Bill is passed unamended, is likely to be as impossible as is sin to the completely new man. Without this Bill—and in general it is a good Bill—marriage is not possible outside prison. Under this Bill it is unlikely to be possible outside prison. There is a place of worship in prison, yes, but it is not places of worship with which I am primarily concerned. It is giving prisoners and their spouses the opportunity of having their marriages outside prison and having relatives and friends present. Such weddings will not necessarily be in a church.

The demands on prison governors and staffs to provide escorts is a most important consideration, and none of us wants to add to their difficulties. But I wonder why the Government did not see the force of this consideration without the help of the European Convention on Human Rights. Legislation like this Bill, however, should not be passed to meet a situation which we all hope will be improved. We all look forward to some relieving of the strain on those responsible for the care of prisoners and to a reduction in their number altogether. Legislation is not quickly amended, and if this Bill is passed marriage inside prison will become the norm in the future. At least, that is the anxiety which many of us feel.

The intention of the amendment which I propose is to give prison governors real discretion, but it also does something to leave marriage outside prison as a live option, where special requirements of security do not obtain. There is no question here of demanding particular guarantees of the Government which they cannot possibly meet. The intention is to allow some freedom in the situation, with reasonable considerations brought to bear on the particular circumstances. Under paragraph (b) in the amendment the governor of a prison has unfettered authority in certain instances. Under (c) the detained person has real choice. Under (d) the governor leaves the situation open. It is with these diversities and the freedom they contain that I beg to move this amendment.

Lord Mishcon

My Lords, I am delighted to have my name associated with that of the right reverend Prelate. On one side indeed I might term this a holy alliance, and from my point of view, as I said, it is a privilege. As the right reverend Prelate has reminded us, we discussed this matter at great length on the last occasion when this Bill came before your Lordships. I am not going to quote from the Committee proceedings at this hour, but from all parts of the Committee there were sympathetic queries, and there was downright—or upright, in my view—support for the principle that it was wrong for the Bill at all events to give the appearance of setting down a new procedure—because new procedure it would be—by which prisoners would only have their marriages celebrated in prisons.

Reasons were given by the Government which had to be taken into account. As the right reverend Prelate again reminded us, there was a shortage of prison staff. There could be inconveniences suffered by other prisoners if a prisoner had to be escorted to a prison, and of course there were some cases where it would be quite impossible from the point of view of security to allow a ceremony to take place outside the prison, even with an escort. I have tried to take these considerations into account, and I am sure that it was quite clear from the right reverend Prelate's speech that he himself took them into account.

However, we were left with the feeling that it would be an ordinance going out that it must be the exception to the rule. Even where a person was suitable, from the point of view of his record and the question of security, for the marriage to take place outside the prison, if the Bill were enacted as it now stands, the prisoner's request might well normally be refused. If a prison governor allowed a few weddings to take place outside the prison, it might set a precedent which other prison governors might consider thoroughly undesirable.

There was another consideration that I ventured to bring before your Lordships at Committee stage; and I raised it, too, during the contribution that I tried to make on Second Reading. Where a marriage took place in prison, there would appear on the marriage certificate an identifiable address showing that the marriage had been solemnized in prison. The Minister told us that attempts were being made to see whether an address could be given on the certificate in such a way that, while it would not be misleading, it would to some extent conceal the place of solemnization of the marriage. Nevertheless, we were left feeling unhappy about the situation.

It has been pointed out to me that even before the new procedure of a marriage in prison, the address of a prisoner would be given on a marriage certificate. That is not a complete answer to our concern. The noble Lord the Minister, in a very courteous letter that he sent to me and I believe to the right reverend Prelate, too, seemed to think that it was a complete answer. Of course it is not. No one would necessarily raise a query regarding an address which the father might have had at a certain time. However it would be very peculiar if the place of residence (even if stated in a slightly obscure way) turned out to be the same as the address given on the certificate for the solemnization of the marriage, while everybody knew that usually solemnization would be at a registry office or a place of worship. So in my view it was not a complete answer to say that the situation would not be changed because of the new procedure.

I mention this point because it might form a quite proper, understandable, consideration in a prisoner's mind in asking for his marriage to be solemnized outside the prison. The address given on the marriage certificate could cast on the whole of his future, and on a family yet unborn, a shame which temporarily he had had to face.

I ask your Lordships to consider the position where circumstances are suitable and there are not considerations of paucity of prison staff, and where, as the right reverend Prelate put it, the prisoner has opted for a marriage outside the prison, and his conduct, character and record are such that no security risk is thought to arise. We want to be sure that we do not allow the Bill to pass in such form that the prisoner's request, made in those circumstances, would be unlikely to be granted. I should like to see the amendment passed, though I can see difficulty in some of its wording. However, on the basis of the principle of the amendment being accepted, I wonder whether the Minister can help us, having considered the previous speeches, as well as those made this evening on the point. I should then be able to decide how to deal with the amendment. I wonder whether the Minister can assure us that a directive will be issued to prison governors, stating that where there are not difficulties over shortage of staff, and security is apparently all right, governors are expected to agree to marriages taking place outside prison. Having said that, I await—and perhaps the right reverend Prelate awaits—not only the contribution that any of your Lordships might wish to make to the debate, but also, and in particular, the reply by the noble Lord the Minister.

7.26 p.m.

Lord Glenarthur

My Lords, the right reverend Prelate and the noble Lord have again raised a point which I know causes them very deep concern. Not for a minute should I like them to think that the Government do not share that concern. However, though I have listened with great sympathy to the arguments that they have put forward this evening and previously, I fear that I cannot accept the amendment, and I shall explain why. But before doing so I wish to detain your Lordships for a few minutes in order to remind you why the Government brought forward the provisions in the Bill, which would enable marriages to take place in prison.

Until a few years ago prisoners were not allowed out of the establishment to marry other than in the most exceptional circumstances. However, the European Commission of Human Rights recently considered two cases which raised the question of how far prisoners could exercise the right guaranteed by the convention that those of marriageable age should be able to marry. The commission concluded that, although the mere fact of detention clearly prevented a prisoner from exercising the convention rights fully, he had the right to form the legally binding association of marriage.

In the light of the commission's views, both the last Government and this one introduced administrative changes, and the restrictions on the circumstances in which prisoners might marry have been gradually reduced. As your Lordships will know, at present marriages cannot take place within a prison, and in making the changes the Government have been mindful of the quite real burden that escorting prisoners to ceremonies outside could place on a prison service which, your Lordships will need no reminding, is already under very serious pressure. Sometimes the burden falls also on the police, who have to make extra security arrangements; and there is, I am afraid, a risk that a prisoner who is taken to a wedding ceremony will use the occasion to abscond, as has happened.

In order to ensure that the burden does not become unmanageable, the Government have had to maintain significant restrictions on the circumstances in which prisoners may be taken outside to marry. Accordingly, we have introduced the provisions of the present Bill to be able to give the right to marry to a much greater proportion of the prison population, thus enabling us to meet our international obligations, as do other European countries, by permitting marriages inside prison. Without that facility there is a grave risk that the burden of escorting all of those who wish to take advantage of the right to an outside ceremony would mean that we should not be able to grant the right of marriage and would not be able to meet our international obligations.

At the Committee stage I described the drastic effect that providing an escort so that one prisoner can be taken out to a wedding can have on the very basic essentials of life for a large number of other prisoners. The right reverend Prelate and the noble Lord have suggested that these difficulties could be overcome by giving prisoners who are to be married the option of a ceremony outside the prison. The Government have thought about this very carefully, but we do not think that it would answer the problem. As the right reverend Prelate has said more than once, the proper place for a wedding is away from the prison environment. The Government share that view. I think it would be surprising if the great majority of prisoners who wish to marry did not prefer outside ceremonies. But, as it would not be realistic to expect an individual prisoner to take account of the effect that his wedding would have on the life of others when he decided whether he would wish to opt for a ceremony away from the prison, we should almost certainly find that all prisoners opted for outside weddings, thus defeating the purpose of the Bill.

I should not like your Lordships to think that, without this amendment, prisoners will not be allowed to marry outside the establishment. I should like to say again that the Government entirely share the view that an outside ceremony should be allowed whenever possible. If the prisoner concerned can be given temporary release without escort, there is obviously no difficulty in achieving this ideal; otherwise, I can assure your Lordships that prison governors will be given the flexibility to consider sympathetically every application to be taken out to a wedding. Circumstances vary considerably between different establishments. If the governor can provide an escort so that the prisoner can be married away from the establishment without seriously disadvantaging the rest of the population, there will be no reason why he should not do so.

My Lords, in view of the anxiety that has been expressed by the right reverend Prelate and by the noble Lord, Lord Mishcon, I am glad to give an undertaking that, as the noble Lord, Lord Mishcon, asked, an instruction to this effect will be issued to prison governors when the Bill is enacted. I hope that that relieves him. I hope that, in view of this assurance, the right reverend Prelate will feel able to withdraw his amendment.

The Lord Bishop of Derby

My Lords, I am grateful to the noble Lord the Minister for this reply and this undertaking. I am grateful to him for giving us so much reassurance about the attitude of the Government—this is a great help—and also for the way in which he dealt personally with our considerations at the different stages of this discussion. It seems to me that issuing some directive to governors is likely to be a much more effective way of having our concerns dealt with than trying to express them in legislation. That kind of approach enables the much more personal and human considerations to be weighed up; whereas anything that is written into a Bill tends to be very precise and restrictive. In view of the undertaking that the noble Lord has given, I, for my part, am happy to withdraw the amendment.

Lord Mishcon

My Lords, before the right reverend Prelate sits down, I wonder whether I may be allowed to express my personal gratitude to the noble Lord the Minister, as so eloquently expressed by the right reverend Prelate, for all the consideration that has been given and for the concession now made, which is much appreciated.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendments Nos. 4 to 8:

Page 12, line 21, leave out ("Part IV of the Mental Health Act 1959") and insert ("Part II of the Mental Health Act 1983").

Page 12, line 23, leave out ("59(1)") and insert ("145(1)").

Page 14, line 11, leave out ("above") and insert ("of this section").

Page 15, line 6, leave out from ("section") to ("(short") in line 8 and insert ("2, 4, 5, 35, 36 or 136 of the Mental Health Act 1983").

Page 15, line 13, leave out ("Part IV of the Mental Health Act 1959") and insert ("Part II of the Mental Health Act 1983.").

The noble Lord said: My Lords, I have spoken to Amendment No. 4 with Amendment No. 1. I beg to move Amendments Nos. 4 to 8 inclusive.

On Question, amendments agreed to.

Lord Glenarthur

My Lords, I beg to move that the House be now adjourned during pleasure until ten minutes to eight.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.35 until 7.50 p.m.].