§ 5.2 p.m.
§ Lord Meston
My Lords, I beg to move that this Bill be now read a second time.
This is a short and simple Bill to allow a modest relaxation in the restrictions on marriage imposed by the rules of affinity; that is, the relationship itself created by marriage. Simply, it will permit marriage with a stepchild or step-grandchild subject to two important preconditions. First, both parties must be 18 years of age by the time of the marriage; secondly, the younger party must never, while under the age of 18 years of age, have been treated as a child of the other's family.
Your Lordships may utter surprise, or groans, at yet another Bill dealing with the making, or breaking, of marriage in general, and with the law of affinity in particular, and I should explain how this Bill comes to be here. This is an area of reform in which I am conscious that I am following in the distinguished footsteps of the noble Baroness, Lady Wootton of Abinger, and of my noble friend Lord Lloyd of Kilgerran, whose more ambitious Bills relating to affinity have been debated in recent years. Indeed, I would wish to pay tribute to their pioneering efforts.
This Bill differs both in form and in content from their Bills. Furthermore, if I may say so, it has two distinct advantages on its way to the starting gate. First, its path has been illuminated by the report entitled No Just Cause published last year and produced by a group set up by the most reverend Primate the Archbishop of Canterbury and chaired by my noble friend Lady Seear. That committee was set up in response to previous legislative attempts which I have already mentioned, and to the trickle of personal marriage Bills which there has been in recent years. The report itself displays a lucidity, conciseness and breadth of scholarship which is characteristic of my noble friend and a reflection of the many talents of her committee. We are indeed grateful to them.
Having said that, the conclusions of the committee were not unanimous. The majority proposed three substantive changes: first of all, changes in the law such as are proposed in this Bill; secondly, a complete removal of impediments as between step relations when both are over 21 years of age irrespective of whether one has been treated as a child of the family of the other during his or her minority; and, thirdly, a removal of the impediments as between in-laws. The minority felt unable to go so far, proposing only the changes proposed in this Bill. Thus it can be said that this Bill represents the common ground between the minority and majority conclusions.
The second advantage of this Bill is that the minority recommendations may claim the endorsement of a vote of the House of Bishops by, I think, 39 to 2—a substantial endorsement even if they were prudent enough to allow for proportional representation. It is nice to know, though, that it is not only lawyers and politicians who can disagree about things; but in view of the near unanimity of Bishops on this matter and the eminence of the speakers to come, I promise not to trespass into theology, and indeed time 40 will not permit me to give your Lordships a complete historical perspective.
The table of kindred and affinity was of course set out in Archbishop Parker's Prayer Book—that list which one was tempted to study only in the less gripping moments of school sermons, when one tried to work out who all these people were. The list itself derives from Leviticus, but the rules of affinity, as distinct from consanguinity, represent man-made compromises between biblical texts which are not always easy to reconcile. Before the list was settled in the Prayer Book the canon law had reached a height of convoluted sophistication, demonstrated perhaps best by the first divorce of Henry VIII. By an extensive list of impediments and an extensive power of dispensation, and the safety valve of nullity, what was in effect divorce by consent, or at least divorce on demand, was available to those who could afford it.
The list then crystallised, or one might say ossified, into English law with the Marriage Act 1835. Thereafter, there were piecemeal statutory relaxations. The 19th century was preoccupied with that lady, "the deceased wife's sister"—indeed, the "Parliamentary annual blister" referred to by W. S. Gilbert. It took a strong Liberal Government to pass that measure into law in 1907, since when other Bills have struggled into law. Last, but not least, there was the Act of 1960, promoted over the course of some eleven years by the noble Lord, Lord Mancroft, which allowed marriage to a divorced wife's sister.
In commending this Bill I would seek to put forward four basic propositions. The first is that artificial family relationships should not stand in the way of marriage. There is a fundamental right to marry and to found a family which is set out, among other places, in the Universal Declaration of Human Rights and in the European Convention on Human Rights, recognising that the right to marry in an appropriate case should strengthen rather than undermine the family. Secondly, any such liberty brings with it the need for responsibility, the need for safeguards and, I of course accept, the need for limits. Thirdly, the most important of those safeguards are those needed to protect the integrity of the family and, in particular, the welfare of minor children.
Sociologists talk in terms of the establishment of a structure within the family and the definition of roles within that structure. If a function of the family is the careful upbringing of children, there should not be any hope, expectation or possibility of any sexual or marital relationship during, or immediately following, the minority of the children. To allow any such possibility or pressure could create strains which would be destructive, distorting and confusing for the marriages, the families and the individuals concerned. I suggest that those are strains which society is still not prepared to accept.
I draw an analogy with the area of law with which I am familiar: the law relating to adoption. Much of our law of adoption and the practice of that law is concerned to avoid the distortion of family relationships. It is a platitude in family law that one can dissolve a marriage, but cannot dissolve parenthood. One might therefore reasonably add that one should not seek to dissolve a step-parenthood, when that has played a useful part in the context of the 41 family. When parents separate and do the child the disservice of separating that child's world can fall apart. The fixed points in its life become of great importance. A step-mother or a step-father easily becomes one of these fixed points of that child's life and helps to pick up the pieces. In law, subject to Section 10(3) of the Children Act 1975 a step-parent has the option of adoption. I suggest that it would be curious and wrong that if a step-parent chooses not to adopt a child or is unable to adopt that child there should therefore be the prospect of marriage to that same child.
I would suggest that often there is no qualitative or logical difference between a step-parent and an adoptive parent of a minor child. The step-child has an enhanced need for security and certainty and is entitled to a freedom from sexual pressures which would allow him to develop to full maturity.
My final proposition is more practical. People should be spared the consequences of the artificial restraints to which I referred. They should not be put to the expense of having to go abroad to marry or of having to come to Parliament with a personal Bill. The defects of the personal Bill system are set out cogently in the report No Just Cause. Personal Bills are costly, embarrassing and time-consuming for this House. They add to the anxieties of the couple who should of course be a happy couple. They always receive a sympathetic hearing and the three recent Bills involving mature step-relations have passed through this House without any great difficulty. But it all tends to suggest that there is one law for those who hear of the procedure and who can then afford it in its practical consequences. Apart from a personal Bill or going abroad the other alternatives are for the couple either to live together without marriage, with consequences such as illegitimacy and the lack of any widows' pension for the lady, or for them to part with consequential distress for all concerned.
Having explained the thinking behind the substance of the Bill and having mentioned that there should be certain practical safeguards, I simply refer briefly to them. Your Lordships will see the basis of the Bill set out in Clause 1. In Clause 2 there is what is commonly called a conscience clause set out in standard form giving clergy discretion whether or not to solemnise or to permit the solemnisation of a marriage of this sort. One can only hope that in practice the clergy will err on the side of charity. The schedule sets out the detailed procedures. Within those procedures, which are already part of our marriage law in substance, there are other safeguards.
First, your Lordships will see that there is no possibility in this instance of a marriage after banns, although that is not to say that a church marriage under licence will not be possible. In every case both the couple involved will be required to make declarations. There is also a procedure for caveats and other written objections to be entertained. If necessary in cases of real doubt or serious objection there can be an adjudication either by the ecclesiastical judge or by a High Court judge of the Family Division. There is already under existing law the sanction of a prosecution for perjury. The ultimate sanction for entering into a marriage under this Bill, which should 42 not have been entered into, is of course that that marriage will be void.
I mention one or two other points which may have occurred to your Lordships on reading this Bill. It does not apply to Northern Ireland, but I hope that that country will follow suit. It does not presume to legislate for Scotland. Your Lordships may have noticed that the next Bill on today's Order Paper relates to the criminal law of Scotland. Until the next Bill on today's Order Paper, proposed by my learned friend Lord Wilson of Langside becomes law, a couple married under my Bill could fall foul of the Scots law of incest, which might tend to spoil the honeymoon north of the Border!
On the assumption that both Bills receive a favourable reception, I should welcome any amendment from a suitably connected Scottish Lord at an early stage. I would not want the Scots to think that their law of marriage has somehow become an afterthought in this legislation. If my noble and learned friend Lord Wilson fails and I succeed, we may well be setting up together somewhere south of Gretna Green.
I suggest that this Bill meets a demand. One cannot accurately measure the demand. I do not see queues forming outside the register offices or the vicarages, but from the number of personal Bills there have been (and there are also some in the pipeline) and the greater number of inquiries the authorities have had, I suggest that there is a demand which should be recognised and that the problem will not go away. The fact of that demand is an inevitable symptom of the growing divorce rate, longevity and of the popularity of remarriage. The Bill will encourage without devaluing marriage. It does not go too far and for those who may suggest that it does not go far enough I ask them to recognise the value of half a loaf. My Lords, I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Meston.)
§ 5.18 p.m.
§ The Lord Archbishop of York
My Lords, the whole House is indebted to the noble Lord, Lord Meston, for introducing this Bill. I am sure we are grateful for the gracious way in which he has done it and for the highly skilful way in which this Bill has been drafted. It is not easy to keep a clear head among the extraordinary permutations and combinations of relationships which are possible in discussing this kind of subject. If, as I hope, this Bill eventually becomes law, it will bring to an end a long debate which has occupied more time in this House than its intrinsic importance might seem to have deserved; yet there are important underlying issues behind it.
I remember when, five years ago, I was one of those who vigorously opposed the Marriage Enabling Bill of the noble Baroness, Lady Wootton. It was with sense that matters were being decided about the nature of marriage, and the kind of supports which our society gives to the status of marriage, without really thinking through their implications.
We were aware then, as we are aware now, of individual cases caught by what seem to them to be unfair and unecessary laws. As your Lordships will 43 know, in the years between we have been forced into making a series of ad hoc decisions on personal Bills by procedures which have evoked more and more dissatisfaction.
However, now we have an opportunity to discuss the principles at stake on the basis of this excellent report for which we owe so much to the noble Baroness, Lady Seear, and which has already in some measure been discussed in your Lordships' House and extremely well received. If the most reverend Primate the Archbishop of Canterbury were here today, I am sure he would wish to express again his own personal thanks to the noble Baroness and to her working party. As some of your Lordships may know, he has entered hospital today for an operation and so cannot be with us, but I take it that I may convey to him your Lordships' wishes for a speedy recovery.
§ The Lord Archbishop of York
My Lords, as the noble Lord, Lord Meston, has said, his Bill puts into legislative effect the minority proposals in the report of the noble Baroness, Lady Seear. As your Lordships have been told, these received overwhelming support in the House of Bishops, which had two long discussions on the subject in June 1984 and in January of this year. In the end the bishops accepted the minority proposals by a majority, which I thought was 36 to one, but these matters are never absolutely certain and I have a feeling that the one who voted against them was the one who had been put up to speak in favour of the majority proposals and, in the end, decided that he could not let them down.
If it seems strange that such a report should be accepted only in terms of what the minority says, I should remind your Lordships that not every report commissioned by the most reverend Primate the Archbishop of Canterbury receives overwhelming and enthusiastic endorsement immediately. The very fact that some of these reports arouse disagreements, discussion, and even controversy is a tribute to the quality and independence of those who produce them.
The House of Bishops did not feel it right to let the General Synod loose on the report—a fact which may give comfort to some of your Lordships. We believed that in a technical matter of this kind it was best to keep the discussion in the hands of those who already had some knowledge of the continuing debate.
As your Lordships have heard, the Bill steers a middle course by providing relief in the hardest cases—and here the kind of case one has in mind is of stepchildren who discover their relationship with a prospective spouse only when they are already adults. On the other hand, the Bill firmly protects certain vertical relationships within the family, whether these are with step-parents or parents-in-law. It was to avoid encroachments on these relationships that the bishops fought so hard against the earlier Bills. If we have been mild in our response to personal Bills, it is because there is a big difference between making occasional exceptions for individuals and conceding a principle by changing the law for everybody. This Bill, in our view, strikes the right balance, and we hope that it will 44 be accepted by your Lordships without substantial amendment.
However, I am bound to say that if it was to be amended in the direction indicated by the majority report, in particular by permitting step-parents to marry stepchildren over the age of 21 when those children have been children in the family, or if it were to be amended by abolishing the impediments on marriage between parents-in-law and children-in-law, then we would have to oppose it.
§ Lord Mishcon
My Lords, I wonder whether the most reverend Primate will forgive me, if only so that we who are trying to come to a judgment on this matter may learn from his remarks. He said that what was to be done was to protect generally, but in a particular case—namely, where the step-parent and stepchild did not know their relationship until they became adult; that was what the bishops were protecting. The most reverend Primate does not in any way, does he, suggest that that is what the Bill says?—because it does not.
§ The Lord Archbishop of York
My Lords, I am grateful to the noble Lord for enabling me to clarify something which clearly I have put in a way which has been confusing. I am supporting the Bill's provision, but the majority proposal in the report was that even when a child has been a child in the family, marriage between that child and a step-parent is possible when the child has reached the age of 21. It is that which the bishops wish to oppose and it is that which the Bill does not allow.
We believe that amendments in that direction, whether related to step-parents or to in-laws, would destroy the principle of protected vertical relationships within the family which we believe is an important element in the identity of the family as an institution.
Other Churches which have discussed the matter share the same view. The Bench of Bishops of the Church in Wales supports the minority recommendations—and this is something which your Lordships need to know, because the Bill extends to Wales. Further, the provisions in Clause 2 about clergy also apply to clergy in the Church in Wales.
The executive committee of the Free Church Federal Council has unanimously endorsed the minority recommendations and the Baptist Union of Great Britain and Ireland has also endorsed them. I have no direct information about the attitude adopted by the Roman Catholic Church, but no doubt the noble Lord who follows me will enlighten us. I suspect that the answer is that the matter is regulated by their own canon law; but this is of course not an answer which is available to the Church of England, since our canons are part of the law of the land.
In any case, what is at stake is not simply Church discipline or Christian feeling, but the nature of the family as a social institution in so far as this is embodied in law. I am one of those who believe that our Christian civilisation is rooted in certain stabilities, certain stable relationships, and in this particular case really goes back to the sacramental theology of St. Augustine, which was part of the stable basis on which Christian civilisation was subsequently built. However 45 much those stabilities may be eroded by the actions of individuals, it seems to me terribly important to maintain in law that there are certain statutes which have permanent significance.
In previous debates it has been argued that laws of the kind we are now discussing do not prevent individuals doing what they want to do sexually without the benefit of marriage; and this is undoubtedly true. But laws create norms, they create expectations, they help to define what social institutions stand for, or, in the fashionable phraseology, they act as markers. And even if it is argued that little-known prohibitions cannot be very effective markers, it remains true that the removal of them arouses public attention and is interpreted as part of the process of eroding the institution that those markers were meant to protect.
One of the appendices to the report now just before us contains the depressing judgment from, I think, a social anthropologist:The modern English kinship system seems to be developing into one in which only primary kin are significant and affinal ties do not outlast the marriages which brought them into being".Well, that is the judgment of an expert. If we want to hasten this process, then it seems to me we follow the majority recommendations and say that these relationships brought into being by marriage die with the marriage.
But if we want to reject that trend, then I believe we should follow the minority report and keep this Bill as it is. This role of the law as a marker is one reason for rejecting the view that a step relationship can somehow change its character when a stepchild who has lived as a child of the family reaches the age of 21. A law which allows the marriage of such children to a step-parent after the age of 21, and a law which, in contrast, permanently excludes the possibility of legal marriage at any age are two laws which are saying different things about the nature of family relationships.
The first kind of law, the law which would allow the marriage, is essentially about the protection of individuals against those who might be in a position to exploit them; and at an appropriate age that protection ceases. But a law which permanently disallows marriage between step-relations is, as I was saying, asserting something about the nature of the institution of marriage. It says something about the permanence of family relationships and, in particular, it says something about the relationships between children and those who stand in a parental or quasi-parental relationship with them. It is this permanence which those of us who support this Bill want to protect.
In the case of step-parents, as in the case of adoptive parents, about whom there is no argument, the case seems to me to be clear. But when we come to parents-in-law the argument is not so straightforward. There is an obvious analogy between step-parents and parents-in-law, and in certain debates on this subject earlier a good deal was made of the anomaly concerning brothers-in-law and sisters-in-law who of course are allowed to marry under present legislation. If these may marry after the death or divorce of the intervening spouse, why not parents and children-in-law? To be honest I am not entirely happy about what the law at present allows here, given the fact that family 46 relationships are now so confused by widespread divorce.
But I accept that the law about brothers-in-law and sisters-in-law is here to stay, while denying that this must logically lead us to include parents-in-law. It seems to me that the relationship between parents and children is qualitatively different from the relationship between siblings. There are elements of responsibilty and dependence within that relationship and also there are possibilities of emotional exploitation within it which are unique. It cannot be for nothing that our culture has spawned endless jokes about mothers-in-law and more sinister stories about the dangers and drawbacks of having step-parents. In these many stories there seems to me to be an implicit recognition that these quasi-parental relationships are difficult to handle and need a kind of sensitivity and restraint within them if they are to be successful. And in my view this need for sensitivity is a strong reason for not exposing such relationships to the further complication of legitimised sexual rivalry.
Let me say a final word about Clause 2 of the Bill which deals with the consciences of the clergy. I am grateful for this clause, though I hope and expect that it will not often be invoked. I believe that the Bill before us is a modest and sensible reform which will win the assent of the clergy by its obvious reasonableness. But a radically amended Bill would raise a whole new set of problems. I therefore urge your Lordships to leave this Bill substantially as it is and to give it a warm welcome.
§ 5.36 p.m.
§ The Duke of Norfolk
My Lords, perhaps I may preface my remarks by once again regretting that we do not have Roman Catholic bishops in this House. I should like to see, say, half a dozen Roman Catholic bishops or priests as Life Peers in this House. I have made the remark before that I should like to see, so to speak, half a dozen Catholic Lord Sopers to give your Lordships the benefit of their advice, so that you do not have to rely upon a lay Peer who is a Roman Catholic to give you his views—and it might he me or it might be the noble Earl, Lord Longford. But none of us can be as good as somebody who is a priest or a bishop of the Catholic Church.
I have been written to by the Archbishop of Canterbury to support this Bill and I most sincerely do so. I shall take a very short time. The previous efforts to deal with this matter by the noble Baroness, Lady Wooton, in her Marriage Enabling Bill were not the correct way of dealing with it in my opinion because her system was to abolish all forms of impediment raised by affinity. Let us go back to fundamentals. These impediments of affinity are there so as to protect the family and the marriage status and they are there so as to stop things happening which would cause family life to break up.
In the Catholic Church such matters are quite often dispensed with by reference to the bishops, who say quite simply, "Here is a case of two individuals where something is against the affinity put down"—and the impediments are listed—"but nothing untoward has taken place and therefore we will give a dispensation, allowing this marriage to take place". That is a very 47 good and simple system of dealing with it. I understand that in New Zealand there are ecclesiastical courts which do the same thing for the Established Church. I think it is open to question whether that would not be a very good system in our country too.
Be that as it may, I commend this Bill to your Lordships' House because it will abolish the cases that have just been mentioned which hardly ever could have caused a marriage to be assailed or broken up. By the way the noble Lord. Lord Meston, has limited the cases he is talking about to the minority report of No Just Cause I feel that they are exactly what would normally be allowed after reference to an ecclesiastical court; in fact. they are something that are really no longer impediments. As I say, I commend this Bill to your Lordships' House.
§ 5.41 p.m.
§ Lord Denning
My Lords, I would be against the Bill. I see no difference whatever between parents-in-law and children-in-law on the one hand and stepparents and step-children on the other. The majority report would let them all in. Let it be so. I would not let parents-in-law in any more than the Bishops; but first, let me take this qualification of under 18 years of age and not being a child of the family. That is quite unworkable; and I shall take my own instance just to tell your Lordships what happened to me and my wife. We were widow and widower: I was 45 and my wife was 44. We had step-children on each side. My wife had one daughter of 17 at boarding school, who came home for the holidays. Her other daughter of 20 was working in London and coming home at weekends.
If this Bill were passed, the result would be that my wife and I could divorce one another and I could marry the girl of 20 but I could not marry the girl of 17 because notionally she was under 18 and in the family. Those two daughters were exactly the same, and the importance of our law at the moment is that it stabilises marriage and enhances the value of it. My wife and I treated our step-children just as one family, and surely that is right. We would not dream of any other relationship between them. As this minority report suggests, it is the stabilisation of marriage which is important, as the law affirms at present, and the enhancement of the quality of it.
If you once allow this intrusion of possible sexual relationships between parent and child, you are immediately disrupting the stability of the marriage which, as I am sure your Lordships will appreciate, takes a lot of work to create so that there is one united family, as I think we have. But it is quite incredible and, to my mind, impossible that in my particular case the law should allow me even to contemplate severing the parent and child relationship and replacing it by husband and wife. That is quite incredible to contemplate. The minority report agrees with that with regard to parents-in-law; they agree with it all in respect of step-children, except for this one exceptional case, if the child in question is under 18 and has been a member of the family. But it has all got to be proved, according to them, and if need be proved by judicial reference.
48 In my view that exception will not work. It would be a way round it; in other words, if I may say so, I am going to stick my flag to the post of the stability of marriage. If people are married, with step-children, let the marriage be stable: let it not be disrupted. Keep the parent and child relationship and do not let it be disrupted in any way by any thoughts outside the ordinary parent and child relationship. That is the thought which runs through the minority report. They paid lip-service to this exception, but let me just read from the minority report at paragraph 256:In contrast we believe there is a general consensus in society as to particular definitions, and that implicit definition of role operates both as a safeguard to the stability of the family and as a potential enhancement of it. Further we believe that some specific relationships in the family are free to flourish and convey benefit precisely because they are grounded on the assumption that certain roles preclude sexual expectations. First and foremost among these is the relationship between parent and child;".In the next paragraph they say this:To license marriage between a step-parent and a step-child of the family would be to condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family, would be destructive of the … relationships".I agree entirely with that, if I may say so, and this supposed exception as regards a child under 18 will not work. I would not draw any difference in a personal relationship between a daughter of 17 who was at school and another daughter of 20, both of whom were coming home at weekends and holidays. So, my Lords, I would oppose this Bill root and branch.
§ 5.46 p.m.
§ Lord Wilson of Langside
My Lords, I shall detain your Lordships for only a matter of seconds rather than minutes. The first thing I want to say is that we on these Benches welcome unreservedly this small Bill which has been introduced and whose Second Reading has been moved so lucidly this afternoon by my noble friend Lord Meston. I hope your Lordships will give it a welcome and that it will be equally welcomed in the other place and will have a clear and speedy run.
The only other thing I wish to say is that my noble friend Lord Meston touched, not too seriously, on a possibility that might befall English newlyweds were the legislation on which this afternoon we are involved to get out of hand. I wish to reassure him that we would appreciate that in any such situation the intervention of the Scottish police to interrupt English honeymooners would not be acceptable at all and would indeed put a quite intolerable strain on the Anglo-Scottish symbiosis in which I am a great believer. I have not asked the noble and learned Lord the Lord Advocate, but I am quite sure that I do not need to ask him because he would take all necessary steps to make sure that no such situation would be allowed to develop. And if in Scotland you have the support of the Lord Advocate, there is little in matters legal that you cannot achieve. I hope that your Lordships will welcome this Bill.
§ 5.48 p.m.
§ Lord Simon of Glaisdale
My Lords, it is a great privilege on this occasion to follow with entire agreement the noble and learned Lord who has just spoken because the last time I followed him on a Bill of this sort I was astonished to hear him congratulating 49 the English on having at last caught up with Scotland. I ventured to point out that Scotland had on that matter done in 1939 what England had done in 1753. But on this occasion I entirely agree with the noble and learned Lord and I entirely support this Bill in a way that I could not support the Bill of the noble Baroness, Lady Wootton. I could not support a Bill based on the majority report, though I humbly venture to be allowed to associate myself with the tributes paid to that report.
I intervene merely to give my experience, such as it is, as a former matrimonial judge. I can only say that, in my conviction, this Bill is not only right, but workable. I started my legal career at the Bar in the chambers of my noble and learned friend Lord Denning, so naturally I treat him with great respect. But on this occasion I simply could not understand how he managed to assert what he did.
The condition under which the marriage can take place is not merely that the parties have attained the age of 18, but also that the younger party has not at any time before assuming that age been a child of the marriage. In other words, if the younger party has been a child of the marriage, then affinity is still an absolute bar and makes the marriage void.
When the Bill of the noble Baroness, Lady Wootton, was debated I remember hearing one of your Lordships say—as I have heard over and over again in support of every relaxation of divorce, any undermining of the law of marriage and of the institution of marriage—"If these people cannot marry, you had better face it. They will simply live together in adultery." When one looks at that, is it really acceptable? Are the only two possible human relationships between a man and a woman either marriage or concubinage? Have there not been thousands upon thousands of relationships where one spouse has died and an in-law, or someone connected by affinity, has come in to help the family without concubinage coming into anybody's mind? If one accepts that view, the view that was put forward, of course one goes straight to the majority report. But for the reasons that were so splendidly given by the most reverend Primate that is not acceptable.
There is only one other point on which I may perhaps be allowed to give the fruit of experience. I remember that the noble Baroness, in summing up the debate, said that all the hardships—by which I think she meant difficulties, inconveniences and disturbances—are real. All the apprehensions are hypothetical. And, of course, that must be so. We know that there are cases where difficulties will be encountered under the existing law. But the difficulties that might be encountered under a change of the law are necessarily hypothetical. There is, however, a somewhat close analogy.
When I used to try divorce cases I was left with the conviction that there is practically never a divorce which is not attended with pain to one or other, or generally both, parties. But by far the most painful was a, happily, rare case that turned up where a father-in-law had entered into a sexual relation with his daughter-in-law, thus giving rise to a divorce and that seems to me an analogy in this case.
50 Therefore I presume to echo what the most reverend Primate said. Let us have this Bill. It is workable and it is just. It seems to be acceptable to religious opinion. Obviously, those who found themselves implicitly on the Book of Leviticus will be guided by their convictions, but this is generally acceptable. Let us therefore have this Bill, but do not let us have it widened to make unacceptable exceptions.
§ 5.55 p.m.
§ The Lord Bishop of Ely
My Lords, reference has been made to the differences between the majority and minority recommendations which were contained in that very comprehensive report No Just Cause, produced under the chairmanship of the noble Baroness. Lady Seear. Since the Bill which is before the House this afternoon is, in fact, drawn up to be consonant with the recommendations of the minority, I hope that it may be of service to your Lordships if one of those who in the House of Bishops took the minority view tries to indicate the movement of his thought which moved him that way.
There is—I think I should like to emphasise—much common ground between the majority and the minority reports. There is agreement that there is need for changes in the law for reasons that have been appealed to in your Lordships' House not only this afternoon but often before. There is agreement between the majority and minority that if there is to be change, certain interests of the young, and in particular in the context of the family, must be safeguarded.
There is agreement (and this is important to be said) of a body which was commissioned by the most reverend Primate the Archbishop of Canterbury—as it was, it will be remembered, at the point at which the noble Lord, Lord Lloyd of Kilgerran, generously withdrew his own Private Member's Bill—that its concern was with the general or secular law of marriage in a modern pluralistic society where, to quote from the minority,it is neither possible nor desirable for legislators to presume a general adherence to Christian morality".The minority report expresses, indeed, the hope that Christian perspectives on marriage might be seen as relevant,not only to questions of church order, but also to the shape of secular law".But in doing so the minority report appeals to an honourable Anglican tradition, whereby Christian thinkers, when attempting precisely to think about the world, have made use of all the understanding which the Christian faith has to offer, but yet have not seen themselves as having to,treat the world tyrannously as though it were the Church.Here is an appeal, in fact, to reasonableness, Scripture and Christian tradition being seen as friends and not rivals to moral reasoning and with Christian love recognised as needing to be informed by an understanding of how the created order works.
Against that background where do the two reports, the majority and the minority, differ? We have been reminded this afternoon that in their recommendations they differ at two points, both of which are relevant to this afternoon's debate. The first is with reference to the proposal which the noble Lord, Lord 51 Meston, sees as the principal object of his Bill—that is to say, to permit the lawful marriage of a step-parent and a stepchild provided, in a word, that the affinity has been a nominal or technical and not a substantial relationship: provided, that is to say, that the younger partner has not been treated as a child of the family of the older.
The majority, as we have been reminded, would have wished provision made that if there had been such a child of the family relationship, even so, when the younger party had reached the age of 21, the parties should have complete and unrestricted freedom to marry. "Never" the minority say—and I think I heard the noble and learned Lord, Lord Denning, say so with some resonance, followed by the noble and learned Lord, Lord Simon.
The second point of difference between the majority and the minority in their recommendations is, of course, that the minority, like the noble Lord whose Bill we have before us, does not include any proposal for the lifting of the present inhibition on the marriage of a parent in-law and a child-in-law. The majority would have wished to see that freedom provided for.
What is at issue in this matter, as between the two sets of recommendations, majority and minority? There is I think a difference of emphasis, perhaps a difference of approach, and it concerns in the end how much you are looking to the law of marriage for. The point of departure for the majority is the liberty of the individual to marry. The majority report bases its view on the "natural liberty to marry". That liberty might suffer constraint from the law where the law must protect,either the individual or the institution of marriage for the benefit of all persons in the land—.As an example of restriction for the protection of the individual, the majority quote the minimum age of marriage and the age of consent, and (I quote from the majority report),the principle of monogamy and the requirements of notice, public ceremony and registration are examples of the law defining, dignifying and strengthening the institution of marriage".Those last words seem to offer an important recognition of a function of the law—to define, to dignify, and to strengthen the institution of marriage. But, says the majority report, let the individual's freedom to marry be restricted in as few cases as possible. So the majority, report, with its strong emphasis on the principle of freedom to marry, is disposed towards freedom from restraint.
I return to the particular point of whether the law of marriage should continue to forbid, and, in terms of the Bill before the House, forbid forever, as within the prohibited degrees, the marriage of a step-parent and a step-child who has been a "child of the family". It is the argument of the minority that what the marriage law is about at that point is the protection of a relationship within the family in a way that is crucial for the protection of individual liberty.
That ill deserves the name of constraint which only hedges us in from bogs and precipicesJohn Locke's words come to mind. But I think one could describe the function of the marriage law more constructively, even so, than that. In the family 52 relationship which has marriage at the heart of it, and I emphasise that this is about the family relationship, among the other givens—let there be seen to be this given—the given-ness of it being known to all that the relation of a step-parent with a step-child of the family does not countenance the possibility of a sexual interest which might develop towards marriage. Let it be seen that the step-parent/step-child of the family relationship no more allows the thought of such an interest being acceptable than does the relationship of parent to the parent's own child permit the thought of it—or (and this has been brought to our remembrance again this afternoon and is seen by the minority as a significant observation) the relation of an adoptive parent with the adopted child permits the thought of such an interest. The minority report argues that the marrige law is there to be seen as marking out a feature of the marital family home, the marital state as it expresses itself in living, in a way which it is the fundamental function of the marriage law to do. The law protects and strengthens the institution of marriage by defining at a critical point a clear expectation.
In a comment on No Just Cause when it was published The Times observed that,with … new patterns of family life emerging in the wake of the divorce explosion … it will take time for society to shape and form the role of the step parent, defining the expectations and limitations of the role so that it becomes part of the common wisdom.".That seems to me to be both a good glimpse of the role of the marriage law and a perceptive indication of the reason for caution in moving to dispense at this moment from the particular wisdom of the inherited tradition with regard to a step parent/step child relationship which has reality in it. If that comes to saving that society sees no liberty of the individual to marry a particular person he or she would wish to marry at that point, that is, I fear, the logic, and it is a matter of the integrity of the family.
I know, as the most reverend Primate the Archbishop of York has reminded us, that for 20 years it has been the case that you can marry a brother's divorced wife. If a sister-in-law, why not a mother-in-law, in logic? But the restraint is there as a protection for the family situation in which it might be possible for the young son to bring in his young wife with the assurance that it was understood by all concerned that there could be no interest between the father and the young bride within the family. The minority report ventures to believe that the majority, in recommending the removal of the impediment for parent-in-law marrying a child-in-law, has over-estimated the capacity of those affected—and particularly the children who may be involved—to take in their stride such changes of role. The minority believe that, on the other hand, the majority have under-estimated the significance for our society, which finds itself disconcerted by the fluidity of marital and sexual relationships, of the given framework of relationships in the extended family.
It may fairly be said. I believe, that the majority report in No Just Cause is disposed to give any benefit of the doubt to removing a particular impediment in the interest of the individual's freedom to marry. If I take the more cautious line of the minority, it is 53 because I see the marriage law as having the constructive purposes I have tried to indicate even where it may seem at a moment to be restrictive. If I may quote in conclusion from the minority report:To recommend that certain liberties of choice should be curbed in order to protect the integrity of the family seems to us to be consonant with the value that society still sets on the family; and to retain the prohibitions we recommend as a minority is not so much to go against the grain of libertarianism as to safeguard an institution which libertarians (as well as countless others) rely on".I think that is well said and I gratefully support the Bill by which the noble Lord. Lord Meston, would bring in particular easements, but not more.
§ 6.9 p.m.
§ Baroness Seear
My Lords, I should like first to thank the most reverend Primate the Archbishop of York and others who have paid tribute to No Just Cause, the report commissioned by the most reverend Primate the Archbishop of Canterbury, and to me as chairman. I do not propose this afternoon to argue in detail, or indeed even in principle, the case of the majority report which as chairman I personally support.
At Committee stage I shall, despite the warning given by the most reverend Primate, be bringing forward amendments that will enable me and those who support me to argue the case made by the majority report—although I take the warning that was so clearly given to me, that if by any chance I was to be successful in moving those amendments, then the extremely welcome support that this Bill has from the Bench of Bishops would in that case be withdrawn. I take that on board. Nonetheless, from my own position, and from the line taken in the majority report, I can only proceed in that way.
However, I will not—for reasons which will in part be all too clear to your Lordships as you listen to my voice—intend to go into this matter in any great detail. I thought that the most reverend Primate realised that, logically, he was not on the strongest possible ground when he was arguing that it is accepted that one can marry one's divorced brother's wife but not one's little son's wife. It is a question of where one draws the line. I suspect that the real reason behind the most reverend Primate's position is that there is regret—and he practically admitted this—in many quarters that permission to marry one's divorced brother's wife was ever given and that, as a consequence, the desire now is to draw the line.
As the right reverend Prelate the Bishop of Ely said, the majority report rested on the liberty to marry; not on a right to marry conferred by any state but on an innate human liberty to marry, something inherent in the nature of man. That point was extremely strongly made by the cleric on the committee, the Reverend Gordon Dunstan, who went along with the majority report and who disagreed with the point of view taken by the minority report. He, along with the rest of us on the majority report, believed that the liberty to marry was our starting point. We of course accepted that there were arguments on the other side. We accepted the points that have been made, but do not consider that they override the fundamental liberty to marry. However, I do not intend to go into those arguments in detail today.
54 I am very anxious that this Bill, limited though it is—too limited in my view—should go through. I am anxious in part because of the most unsatisfactory method which we have experienced on a number of occasions in this House by which individuals wishing to marry have to get a Private Bill through this House. I believe we have all felt that nothing could be less suitable as a means of deciding whether or not two people should be married. It is highly desirable that there should be some more appropriate method for marriages of the kind in question to be legally allowed to take place. If this Bill is the best that we can get, then I very much accept the principle that half a loaf is better than none.
I am grateful to the Bishops for the amount of trouble they have taken in considering the report we put forward. I am grateful also for the limited support they have given the recommendations. In fact, it now looks as though it will be possible for some Bill at any rate to pass through your Lordships' House and, I hope, to pass through another place so that some potential marriages can take place legally and in a more suitable way than has been the custom in the past.
I hope very much that this Bill will go through, if only because the noble Baroness, Lady Wootton, who has been mentioned a number of times this afternoon, and who produced I believe three Bills that failed in your Lordships' House, is, as many of your Lordships will know, ill and unable to attend the House today. She has been ill for some time. I am sure it would give her very great pleasure if she knew that although this Bill does not contain all that she asked, it is at least a step in the right direction.
When I told the noble Baroness, Lady Wootton, the contents of the minority report—because I sensed that it would be the minority and not the majority report that would receive the support of the Bench of Bishops and from there the support of your Lordships' House—she remarked that in this country we tend to use salami tactics and to approach matters step by step. I know that will not recommend me to the Bench of Bishops, who are extremely anxious to ensure that this Bill should not be a first step but a last step: but that is for the future to show. I support this Bill with regret that it goes no further, but I am glad that we can at least make some progress.
§ 6.15 p.m.
§ Lord Mishcon
My Lords, first I join with those who congratulated the noble Lord, Lord Meston, on the way in which he presented his Bill to your Lordships' House. Furthermore, I wish to join in the thanks that have been accorded from various Benches in acknowledging the services rendered by my noble friend Lady Wootton in what she deemed to be a most worthy cause. Indeed, I should like to pay tribute also to the noble Lord, Lord Lloyd of Kilgerran, who also attempted to deal with this very troublesome matter.
This is a troublesome matter; it is certainly troublesome to somebody who speaks personally at this Dispatch Box and who in no way represents the views of his noble friends. I am sure the House will appreciate that I would not wish to enter in any way at all into a theological argument with the very 55 distinguished bishops who have honoured your Lordships' House by being present today and giving the benefit of their views. The reason for that will be obvious to your Lordships. I have to claim some distant relationship with the author of Leviticus and in those circumstances to argue on his behalf on this occasion would not be either seemly or of use to your Lordships.
I therefore intend to deal with this matter purely and simply upon one basis: are we doing for our nation what we ought to be doing in regard to respect for family life and the institution of marriage? Those are two very valuable principles, especially, your Lordships may consider, at this moment. I remember participating only last week in the debate that took place on the Shops Bill, when I tried to suggest to your Lordships, with as much humility as I could command, that in possibly breaking up the family by, it could be, the enforced labour of various married ladies who form so much a part of the shop assistants of this country we were not doing a great service to the preservation of family life.
I regard family life as being so precious to our nation, especially at this moment when, as I have said, we are dealing with problems of juvenile delinquency so often and see the results of the break-up of family life in all too many instances of that delinquency.
Speaking personally, as I said before, I find myself in some doubt as to the logic of this Bill. I do so for two reasons: first, because of what the minority themselves stated in the report; secondly, because the report deals in no way at all with what was said to be a most objectionable procedure. I have tried to point out on previous occasions from this Bench how objectionable I think that procedure is; namely, the reference by Private Bill to your Lordships so often, asking for permission for a marriage to take place within the degrees of affinity. That procedure will remain, in spite of this Bill, in the case, for example, of parents-in-law and daughters-in-law: but nothing at all has been said about it.
In regard to family life—and that, as I said, is the principle on which I go—I was interested in and much impressed by a paragraph other than the one which the noble and learned Lord, Lord Denning, quoted. It is on Page 103 of No Just Cause. I start at Paragraph 260:It will be seen that our disagreement with the majority recommendations rests primarily on two points: first, that the value of relationships within the family is a matter for the law's concern not only when children are children in years but also when they are adults".I stop there and go on to Paragraph 262:When for instance a husband leaves his wife to live (perhaps in the same neighbourhood) with his wife's daughter by a previous marriage, the children of the present marriage see their step-sister assuming the role of their mother in relation to their father, and their father assuming the role of brother-in-law to themselves. There are many elements here which are likely to cause special distress. The atmosphere of family acrimony may far exceed the acrimony caused when a father lives with another woman who has had no previous place in the primary family: difficulties of access of father to children may be more acute: the disapproval or repugnance of neighbours may be sensed by the children more painfully".That still subsists when we look at what are, to use the quick phrase, the permitted marriages now under this Bill.
56 I ventured to question the most reverend Primate in the course of his interesting, very lucid and indeed eloquent remarks on one sentence that he uttered. If I may say so, I do not think that I made myself clear, which is my fault, and it is not his fault if he did not understand what I was saying. The most reverend Primate used the phrase that what would be happening here would be, as I understood him, permitting a marriage between step-father and step-daughter only when the discovery of their relationship took place when they had become adults.
I said that that is not what this Bills says. Indeed, what this Bill says is that the step-daughter could be living two streets away, possibly with the mother. Indeed, the child might never come into the household of the father. What he may very well do is merely have access, not living access, to that child until the child reaches the age of 18. Marriage will be permitted between those two in the circumstances of this Bill. They may well have discovered their relationship long before the child became 18 years old; but that will still be permitted by this Bill unless the exception is in fact proved. That is a very different exception under this Bill.
If I am destructive it is only in this sense, as I hope your Lordships will realise. If, on the basis of family life and marriage, I find myself doubtful about the provisions of this Bill—and I do not make a debating point about what the noble Baroness, Lady Seear, said in her interesting remarks; indeed, I join in the tribute paid to her by the members of her committee for a most helpful report from which I have just quoted—the fact is, as the noble Baroness said, that this may be the first step. As the noble Baroness frankly indicated, she will be moving amendments to try to widen the Bill, and we all know what we are doing here. Undoubtedly the Bill will be given a Second Reading and the fact is that the debate will be headlined:Lords pass Second Reading of Bill permitting step-parents to marry step-children.That will be the impression given to the whole nation. Your Lordships may think that that is advisable; or your Lordships may think that in view of the quotation which I made from the minority report that it is not advisable.
Before I sit down it is incumbent upon me to answer the question, "You have been destructive. Where is your constructive suggestion in the remarks you saw fit to make?" My constructive suggestion, which I put before your Lordships as an individual contribution, good bad or indifferent, is this. I find no clamour at all on your Lordships' House, in the other place, in the correspondence that goes to Members of Parliament, so far as I can ascertain, or in correspondence that comes to your Lordships, for step-parents to marry step-children. If that be so, and we are only doing this piecemeal, should we not say to ourselves that if there is no clamour, and we are all concerned about family life, why tinker with the fundamental principle when all of us know that the real cases we are thinking of are the exceptional cases of hardships? There are not many such cases because there have not been many Private Bills and it might be said that people do not know the procedure or cannot afford it but, I repeat, there is no clamour. So why do we not concentrate on 57 a more civilised procedure for dealing with all the cases of affinity—parents-in-law and daughters-in-law, step-parents and step-children—and then say to ourselves that the procedure by Private Bill is wrong?
§ Lord Simon of Glaisdale
My Lords, will the noble Lord tell us what the procedure should be because I must say that I tried to find a procedure and, without any confidence, suggested one to the noble Baroness's committee. Having said that, I think that the noble Lord should tell us where the secret lies.
§ Lord Mishcon
My Lords, before I receive a reproof from the noble and learned Lord for not telling your Lordships what I think ought to be done, he might have ascertained whether or not I proposed to do that in the closing remarks of my speech. If he had asked me I would have told him that I was attempting to do so before he intervened. However, I am grateful to him for now telling me that what I am about to say is what he wanted me to say.
What I want to say is this. So often your Lordships have heard in this House a plea for the family court. The plea has been made on the basis that we have many courts dealing with broken marriages, children in care and wards of court: some are still dealt with in the magistrates' courts sitting as a matrimonial court some are dealt with in the county court and some in the High Court. Some of us have been pleading over the years for the institution of a family court. When that family court ideal is reached in practicality—and the noble and learned Lord the Lord Chancellor has himself said (I paraphrase his remarks) that he can see many advantages in that but there are certain difficulties which one would hope could be overcome—when that family court is established, sitting informally, dealing with all the problems of a family in this informal way in one court, may I ask this? Would it not then be appropriate that the hardship cases should be referred to that court (I repeat, dealing informally), which is able to carry out the proper investigation that your Lordships cannot carry out with our present procedure? Should anyone ask about costs I would hope that, as a nation, with the very few cases of this kind that would come before that court on hardship grounds, we could spare the money and say that the applications will be dealt with free of charge. If advocates are required in any exceptional case I hope that this would be covered by the provisions of legal aid.
This is how I would approach this matter, without tinkering with it, as I believe this Bill does, without opening doors that possibly your Lordships do not want to open and, if I may turn respectfully to them, which the Bench of Bishops does not want to open either; and, if the Bill goes through in all its stages—not dealing with parents in-law, which is out, or the degrees of affinity—without inviting headlines such as, "Parliament sanctions marriage between step-children and step-fathers" in spite of what the minority report says about the harm that may ensue.
I give my individual opinion that we should be constructive about a procedure which we know to be wrong but which we are still allowing by this business of the private Bill. We are not even touching that problem. I hope I have been constructive as well as 58 destructive, limiting my observations—as I say once more with deep respect to the Bench of Bishops—not to theological arguments, which I have not and would not touch upon, but to the sacred idea of family life and marriage which I believe is held not only, by me but also by all your Lordships.
§ Baroness Seear
My Lords, before the noble Lord sits down, may I ask him whether he is aware that the late Sir George Baker, who had many years of experience in the Family Division dealing with matters of this sort and who was a member of the committee which produced No Just Cause—and we of course considered the suggestion now put forward by the noble Lord, Lord Mishcon, which was an obvious one to consider, if I may say so—was strongly against using the family court for cases of this kind?
§ Lord Mishcon
My Lords, I believe that the noble Baroness may be under a misapprehension, but if it is I who am under the misapprehension, then I ask her to correct me. I understand that Sir George Baker, to whose eminence in this field I willingly testify, was considering this matter going to the Family Division of the High Court. I stand to be corrected, but I do not believe that he was thinking in terms of the family court, which does not now exist, where we hope there will be an informal procedure which is not quite that of the procedure in the Family Division. But even if Sir George Baker considered it and did not think it was right, with deep humility I still feel that it is a good thing for us to consider.
§ Lord Simon of Glaisdale
My Lords, before the noble Lord sits down perhaps he will allow me to make another comment. I myself have been an advocate of family courts since 1954 when I gave evidence to the Morton Commission. Does the noble Lord really think that one can handle the matter at large without laying down any criterion?
§ Lord Mishcon
My Lords, that is exactly the procedure at the present moment when we have the Private Bill. The whole procedure is at large. There are no guidelines laid down and when they come to us we consider these Bills ad hoc, merely thinking to ourselves, "Is it right? Is it wrong? Is it just or is it unjust?" I hope that, when the family courts are set up and we have a Bill which refers this matter to the family court we shall lay down guidelines.
§ Lord Denning
My Lords, may I say that I have been in favour of family courts ever since 1946 and that this is a very appropriate matter to come before such a court when it is established.
§ 6.35 p.m.
§ Viscount Davidson
My Lords, if I may be forgiven for interrupting this private debate, I think the time has probably come for the Government's view to be given to your Lordships.
I am sure that, whatever views we may take or are in the process of forming on this matter, we are grateful to the noble Lord, Lord Meston, for giving us a chance to debate this Bill, which he has so ably explained and introduced. The issues raised by the 59 Bill, particularly as they affect the family and, through it, society, are indeed important. The speeches of the most reverend Primate the Archbishop of York and the right reverend Prelate the Bishop of Ely remind us also how seriously the Church views this Bill.
As the House knows, it is the established convention that the Government adopt a neutral attitude on the issues such as those in this Bill which have to be made on grounds of personal conscience in the light of arguments developed during debate. Thus, in debates on both personal marriage enabling Bills and on general enabling Bills such as this one the Government have not sought to advance a view, though they have from time to time brought aspects of the proposed legislation to the attention of your Lordships.
Your Lordships will remember that proposals to remove all the remaining restrictions in English and Scots law between persons connected by a previous marriage—between affines—were ultimately rejected in the Third Reading of the Marriage (Enabling) Bill of 1981 which was brought forward by the noble Baroness, Lady Wootton of Abinger. Subsequently, the noble Lord, Lord Lloyd of Kilgerran, presented rather more modest proposals to give the courts a dispensing power, similar to that now exercised by Parliament but enabling only step-parents and stepchildren (not in-laws) to marry subject to certain conditions. During the Second Reading debate of the Bill of the noble Lord, Lord Lloyd, it was announced that the most reverend Primate the Archbishop of Canterbury intended to set up a committee to advise him on the working of the law; and the noble Lord, Lord Lloyd of Kilgerran, consequently withdrew his Bill.
The distinguished committee, chaired by the noble Baroness, Lady Seear, reported in January 1984. The majority recommended, broadly, and subject to certain restrictions, that legal impediments to marriage between all affines should be removed. The minority recommended the removal of legal impediments to marriage only between step-parents and stepchildren. It is the minority report which found favour with the House of Bishops and which is, in essence, before us today in the Bill of the noble Lord, Lord Meston.
Parliament has from time to time enacted laws enabling particular couples to marry, notwithstanding that they are related as step-parent to stepchild or parent-in-law to child-in-law. I do not think that anyone has suggested that this is a particularly suitable way of deciding whether two people so related should be allowed to marry. It has been criticised as cumbersome, expensive and unseemly. In the Second Reading of the Sonia Ann Billington and Norbury Billington (Marriage Enabling) Bill my noble and learned friend the Lord Chancellor said that it offended his sense of justice that the House should be asked to decide without evidence whether a couple should be enabled to marry—and I am sure that the noble Lord, Lord Mishcon, will agree with that. As your Lordships know, the Bill has been referred to a select committee. But the fact remains that however unsatisfactory existing procedures may be, under existing law only Parliament can decide whether a 60 couple within the prohibited degrees of affinity should be allowed to marry.
This then is the general background to the proposals of the noble Lord, Lord Meston. I would just point out to your Lordships that, if enacted, the Bill would not of course remove all personal Bills from Parliament; couples such as the Billingtons who are related as parent-in-law and child-in-law would still, rightly or wrongly, have to go through the personal Bills procedure in order to marry. But it would, I think, remove most personal Bills from Parliament.
My second point is that the Bill does take into account many of the anxieties expressed in previous debates and more recently by the minority report; namely, that it is undesirable for a step-parent in loco parentis to a step-child to consider him or her as a possible marriage partner. The Bill therefore enables a step-parent to marry a stepchild who has not lived as a child of the family provided they are both over 18. The minority report, and also this Bill by implication, seek to retain the impediments on marriages between parents and children-in-law.
In considering this Bill, Parliament will no doubt wish to consider how best to protect society by promoting good and stable family life, which must be our common aim. Where we disagree, as some of your Lordships' speeches have shown, is as to whether the removal of legal restrictions on marriages between step-parents and stepchildren who have never lived as a child of the family is conducive to the general good, and whether the sympathy we all feel with particular hard cases should be, as it were, embodied in a general enabling law.
§ 6.40 p.m.
§ Lord Meston
My Lords. I must say that I am most grateful to all noble Lords who have spoken in the debate, and particularly to the most reverend Primate the Archbishop of York and the right reverend Prelate the Bishop of Ely, who explained the wider principles involved and gave a good and clear indication of the position of the Bench of Bishops—that they will support the Bill but go no further. It is right, and I should make it clear for the avoidance of doubt, that the Bill in its present form will apply not only to people who happen to meet in adult life as almost strangers and come to find that they have an artificial restriction upon their marrying: they may know each other very well. The important factor is that they should not have formed part of the same family structure during the minority of one of them.
The noble Duke, the Duke of Norfolk, if I may say so, spoke with the authority and eloquence of at least half a dozen Roman Catholic Bishops and to that extent undermined his own case. Like the noble Lord, Lord Mishcon, he touched upon the possibility of some judicial or ecclesiastical judicial discretion, and I shall deal with that in a moment.
The noble and learned Lord, Lord Denning, expressed himself with considerable force and personal feeling. He referred to two children in a family—his own family, as it happened—one girl aged 17 and one girl aged 20. I venture to suggest that they are not the same. There is a difference of age. All age limits are arbitrary. Above all else, there are the 61 protections which I have already indicated in this Bill—namely, that there must not have been a situation which created the relationship that is well known to the law, that of child of the family. It is a concept which is entirely familiar and one with which the courts and those responsible for the administration of this area of the law are entirely familiar.
I venture to suggest to the noble and learned Lord that this Bill cannot destroy or undermine a happy marriage. The safeguards are there. There are difficulties of proof in difficult cases. The burden of proof, however, appears to be upon those who seek to marry. The difficulties of proof are not, in my submission, a defect of this Bill. They are a defect of the ramshackle arrangements that we have in this country for the preliminaries to marriage, which is another question altogether. The alternative is a continuation of and an enlargement of the personal Bills procedure which everyone agrees is so undesirable.
I am grateful also to the noble and learned Lord, Lord Wilson, for his contributions with his insight into Scots law; and also to the noble and learned Lord, Lord Simon, who correctly said that there is perhaps nothing more distressing in practice than a marriage breakdown which involves adultery in a close relationship. I am also grateful to my noble friend Lady Seear for not forcing me at this stage to advance the arguments against marriage as between in-laws; but I am also grateful to her for the fair warning of amendments to come and for the fact that she has taken on board the attitude of right reverend Prelates opposite. This is a limited Bill. I accept that. It should not be overloaded. I am further grateful to my noble friend for having reminded me and indeed the House that we are concerned as much with an individual liberty to marry as with some superimposed right.
I turn to the observations of the noble Lord, Lord Mishcon. Of course he is right; there is no logic in the development of our law relating to marriage. There never has been a logical development; it has developed piecemeal. He is right that the personal Bill procedure will remain. At present it would be presumptuous of me to seek to amend or alter it in this form of legislation I am quite sure that the Personal Bills Committee would reserve to itself the right to decide every case on its merit and every case which comes to it in the future on its merits. As it happens, the first three stepchild/step-parent marriages mentioned in the report would have all been covered by the Bill. But it is not an appropriate procedure.
As to the other observations of the noble Lord, I would simply say this. Parliament should not be inhibited by the headlines that it may see in tomorrow morning's newspapers. He says that there is no clamour. There are hard cases; we know that there have been individual hard cases and that there are more in the pipeline. But I am particularly troubled that he used his observations, eloquent as they always are, as a commercial for the family court. It would be wrong that this legislation or any other legislation of this sort should somehow be deferred until the family court (whatever that may amount to) comes into being. I am a member of the Family Law Bar Association. We have strong views on what the family court should amount to. We know that there are 62 procedures in the pipeline to produce several models for a family court. We look forward to them. I shall have a lot to say about them, no doubt, when they come to the fore.
The noble and learned Lord suggested that the correct form for deciding the matters with which my Bill is concerned is that court or something of the sort. As the noble and learned Lord, Lord Simon, observed, what criteria does Parliament give that court or any other court to decide such matters? With or without statutory criteria, the task imposed on such a court is one which, with all due respect to the wisdom of the Family Division judges, they would not wish to take on. I believe, and I have not studied it in detail, that there has been legislation of this sort in New Zealand and Australia, and it has not been a conspicuous success. Indeed, to require people to go to court is to retain many, though not all, of the defects of the personal Bills procedure.
To some extent in this country there is a precedent. People between the ages of 16 and 18 who wish to marry and cannot get their parents' consent have to go to the court to get consent if they wish to marry. But, having done several of those cases, I can tell your Lordships that the easiest way to tie at least one hand of the court behind its back is a well timed pregnancy. I do not think that that is procedure that we would wish to adopt or to continue. As it says in the report, if one has a freedom, one should not have to fight for it.
I am reinforced in that—and the noble Lord will forgive me for quoting it against him—by the observations of the noble Lord, Lord Mishcon, in the debate on the Marriage (Enabling) Bill on 25th March 1981, which we can find at column 1236, when he said this:I can only say that people either ought to be admitted into the bond of marriage with our blessing or they ought to be refused it. But to have a certain category of citizen who has to go to the court to obtain permission to get married is a situation with which I have no sympathy whatsoever".
§ Lord Mishcon
My Lords, the noble Lord will forgive me, in sheer fairness, if I intervene at this stage. He is quoting from one part of the speech. He will remember that the court which was suggested then was the magistrates' court, and I said that in my view it was quite wrong that that court of all courts should be selected; it was very often associated with criminal work. If he does me the courtesy, however boring it may be, to read my speech, he will find that that was the central point that I was making.
§ Lord Meston
My Lords, I read it as a general statement of principle referring to the court in general, whatever sort of court it is. But I shall of course read the noble Lord's speech more fully and if necessary correct myself at a later date.
I repeat the point that I made. It is unfortunate that in the noble Lord's eye this legislation should somehow have to await the creation of the family court. It is another matter altogether, I venture to suggest. If the family court comes into being in whatever form in due course, all well and good. We still have to have criteria. And while I go so far in agreeing with the noble Lord that the family court or indeed any court having to make these decisions 63 should only involve a limited role for the magistrates, I would not wish the discretion that he suggests to be vested in any court.
Finally, we have the helpful indication of the Government's position. I gather that, on this occasion at least, the Government are in some harmony with the Church. I also detected the wisdom of Bernard Shaw when he said that no Government will touch the marriage question if they can possibly help it. I am most grateful for all the contributions made to the debate. I commend the Bill to your Lordships.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.