§ 3.30 p.m.
§ Lord LLOYD of KILGERRAN
My Lords, I beg to move that this Bill be read a second time. The purpose of the Bill is to enable a Mr. Edward Berry, aged 62, a widower since October 1977, a British subject always domiciled in the United Kingdom, to marry a Mrs. Doris Eilleen Ward, aged 58, also a British subject domiciled in the United Kingdom, a widow since 1965, notwithstanding that they stand in the relationship of step-father and stepdaughter. This Bill is concerned only with the personal relation ship of these two persons and with nobody else. The Personal Bill Committee, chaired by the noble Lord the Lord Chairman of Committees, considered the petition of Mr. Berry and Mrs. Ward.
1038 Its members were unanimously of the opinion that the objects of the proposed Bill are proper to be enacted in a Personal Bill and that this Bill before your Lordships' House is proper for carrying out the purposes set out.
Personal Bills, as your Lordships are aware, are a very rare phenomenon in this House. They are presented only in special cases. This case is a very special case, as the facts will demonstrate. The facts are most exceptional. Not only that but this Bill is concerned with the future happiness of two persons who, in my view, well deserve the sympathy, com passion and indeed the admiration of your Lordships. They are two persons of the highest integrity who I submit are suffering a deep injustice under the existing law. Here they are in the twilight of their lives wishing to live together, but they have refused, and still refuse, to do so until the law of this land allows them legally to be married. In furthering their basic moral principles and the inherent value they personally seem to attach to the sanctity of a marriage tie, they are facing the inevitable publicity and expense of this Personal Bill procedure which is forced upon them.
As I have said, they are to be admired and I feel sure that your Lordships will listen to the exceptional facts of this case with sympathy and compassion, for this Personal Bill has as its sole objective to achieve the mutual happiness which this couple, and this couple alone in these circumstances, are seeking through a legal marriage ceremony.
Before I deal with the facts of this exceptional case, I must refer to a personal matter. It relates to a question that I have been frequently asked in the last few days. I have been asked frequently and most courteously by members of the Press and the media why it is that I am presenting this Bill to your Lordships. The answer is very simple. Mr. Berry and Mrs. Ward have had to employ at their own expense a well known firm of parliamentary agents named Rees and Freres. On the staff of that firm is a certain Mr. Leslie Calder who may not be unknown to some of your Lordships, who went to the same school as I did, Sloane School, Chelsea, a London grammar school which was closed a few years ago when the Conservative Party ruled at 1039 County Hall, Westminster. We are therefore old boys of the same extinct school and still meet socially.
Mr. Calder knew that I was trained as a scientist. He knew that I had the privilege of being a Queen's Counsel practising exclusively and objectively in intellectual property matters. I have never had a brief outside that field of scientific and legal insularity. Not for me, my Lords, the pleasures of the criminal law and the criminal bar which is adorned by so many eminent Members of your Lordships' House and of the other place. But for me it has always been the technological objectivity—I almost said "obscurity"—of the patent bar.
After I had read the papers in this case I felt that Mr. Berry and Mrs. Ward were suffering a deep injustice. As the Personal Bill Committee had acted unanimously, I therefore wrote to the parliamentary agents on 25th March 1980 accepting their request to move the Second Reading of this Personal Bill.
I do not know the parties to this Bill; I have never met them nor have I spoken or written to either of them. I believe that this is an exceptional case where there should be a relaxation of the prohibited degree of affinity to enable Mr. Berry and Mrs. Ward to be married to each other.
May I now summarise the facts of this case as set out in the parties' statement of reasons for the Bill. As I have said, Mr. Berry is 62 and Mrs. Ward is 58. The dates in this case are of some significance, as your Lordships will ascertain later.
On the 25th September 1943 Mr. Berry (then aged 26 years and a bachelor) married Mary Blazey who was then a widow aged 37 years. The marriage took place at Lahore in the State of Punjab in accordance with the rites and ceremonies of the Church of England. At the time of the marriage, Mr. Berry was a Royal Engineer attached to and serving with the Indian Army but he remained, and continues to be, domiciled in England. At the date of her marriage to Mr. Berry, the late Mrs. Berry was a widow having previously borne four children by her first and only other husband (Garnett Harold Blazey) who 1040 had died on the 25th June 1936. Mrs. Ward is one of those children. At the time of the marriage of Mr. Berry to her mother she also was a married woman, having been married three weeks before.
After marrying the late Mrs. Berry, Mr. Berry assumed responsibility for the care and upbringing of his wife's younger surviving children. As one would expect, however, he did not take responsibility for Mrs. Ward who was then a married woman.
In July 1955 Mr. Berry and the late Mrs. Berry left India and became permanently resident in England where Mr. Berry pursued, and still pursues, his career as a projects engineer and is now employed by a large building and civil engineering firm. The marriage of Mr. Berry and the late Mrs. Berry was a success and they lived together on terms of great affection until the late Mrs. Berry died on the 31st October 1977, just over two years ago. There were no children of the marriage and Mr. Berry has remained a widower since the death of the late Mrs. Berry whose two surviving children are both of mature age, being aged 42 and 58 years respectively.
May I tell your Lordships some facts about the personal life of Mrs. Ward. On the 31st August 1943, three weeks before her mother married Mr. Berry, Mrs. Ward (then a spinster and an auxiliary nurse serving with the British Army) married William Ward (then a bachelor). The marriage took place at General Head-quarters, Basra in Iraq, in accordance with the rites and ceremonies of the Roman Catholic Church. There were two children of that marriage and they are still alive, being aged 27 years and 32 years respectively.
On 27th August 1965 William Ward died in an accident in Sarawak in the course of his employment as an engineer. Four months later Mrs. Ward took up permanent residence with her children in England. Mrs. Ward has remained a widow since her husband's death. After the late Mrs. Berry died in 1977 they formed the wish to be married to each other. However, since Mr. Berry is the widower of the late Mrs. Berry and since Mrs. Ward is the daughter of the late Mrs. Berry, the relationship between Mr. Berry and Mrs. Ward falls within a prohibited 1041 degree of affinity and, as a consequence and despite the absence of any blood relationship between them, they are unable by law to be married to each other.
Mr. Berry and Mrs. Ward live apart and do not wish to live as man and wife unless and until they are permitted to be, and are, married to each other. Mr. Berry is a communicant member of the Church of England and his wish to marry Mrs. Ward has the support of the former vicar of his parish church. The petition to the Personal Bill Committee contained a letter from that clergyman, but I do not propose to inflict that upon your Lord-ships at this stage.
I should tell your Lordships something about the financial situation of Mr. Berry and Mrs. Ward. They are persons of modest financial means. Mrs. Ward apparently could gain a small pension from Mr. Berry's pension fund if she were to be married to and survive him. Mrs. Ward has been employed for some six years and is due to retire within the next two years, when she will receive a small pension for her years of service. Any financial benefit which Mr. Berry might derive from Mrs. Ward's pensionable employment, were he to be married to and survive Mrs. Ward, would be negligible. Apart from the benefit to be gained by pooling their resources, neither Mr. Berry nor Mrs. Ward has anything to be gained substantially by being married to each other.
I do not propose to weary your Lordships with an account of the progress of legislation in this country, or even of legislation abroad; but I would mention that the degrees of affinity preventing marriage have been modified substantially in some countries, particularly in New Zealand. I mention the position in New Zealand because that was mentioned during a debate in your Lordships' House some time ago. It would seem therefore that the facts of the case of Mr. Berry and Mrs. Ward would satisfy a New Zealand court that there should be no prohibition as to marriage.
I must now inform your Lordships about certain facts concerning Bills which have been introduced into your Lordships' House. I have for many years admired the social reform activities put forward by the noble Baroness, Lady Wootton, 1042 and on 5th December 1978 she introduced a Bill into your Lordships' House, the Short Title of which was Marriage (Enabling) Bill. The object of that Bill was to remove all the degrees of affinity, but not of consanguinity, to enable people to get married. The noble Baroness said at column 1107 on 13th February 1979:I hope that it will bring comfort and happiness to a number of distressed individuals".I see the noble Baroness nodding in agreement that I have quoted her correctly. That was a general Bill, giving general relief and it was not limited, as the present Bill is, to the facts of a particular case. The right reverend Prelate the Bishop of London spoke in the course of that debate, and I would quote what he said at column 1136—But what of marriage between those not related by kindred but by affinity?He continued in that same column 1136 of Hansard for 13th February 1979 as follows:I suggest to your Lordships that the one criterion which, above all, we ought to apply is whether or not such marriages will generally contribute to the stability and happiness of family life. If they would have little or no effect on family life, then let us extend the range. If they would imperil further the stability of the home, then let us be very cautious before we open the door.In the exceptional case which is before your Lordships, it cannot possibly be said that the changing of the law would affect family life, but could only contribute to the stability and happiness of these two persons.
The noble Lord, Lord Soper, to whom I spoke before coming into the House and who told me he was very sorry that he could not be present owing to a prior engagement, also supported the Bill of the noble Baroness. He said this at col. 1145:I begin with the certainty that there can be no theological objection to this Bill"—that was the Bill of the noble Baroness—once the Levitical tribal system of consanguinity allied to affinity has been breached and broken. I have nothing to add to what has already been said about consanguinity—which, by the way, has nothing to do with this Bill—but I am satisfied that there can be no theological position sufficient to warrant a refusal in law to allow people who are already in a state of affinity to be prevented from marriage in circumstances which are peculiar to them and therefore cannot be regarded in general terms".1043 That is the position in which Mr. Berry and Mrs. Ward find themselves. The right reverend Prelate the Bishop of Southwark at col. 1154 said this:But today what we are concerned with is what makes for happiness and family contentment and, just as I believe that there are times when divorce is permissible and should be encouraged, though only on certain occasions, so I believe that, in cases like this, when it comes to the marriage of a man to a step-daughter there may be cases when it is right".My Lords, the present case is such a case. That Bill was considered by a Committee of your Lordships' House on 15th March, 1979, but the general election intervened and Parliament was dissolved. The same Bill was introduced by the noble Baroness into your Lordships' House during the current Session of Parliament and was rejected on Second Reading on 14th June 1979. Again, that Bill was in general terms and was not concerned with the specific circumstances of any particular person. Perhaps I might take up your Lordships' time by referring breifly to some of the speeches made. I will again quote from the speech of the right reverend Prelate the Bishop of Guildford at column 732. He said this:… I cannot help feeling that we ought to have presented to us in this matter a different type of Bill which would not make the sweeping destruction of the affinity restraints but would be directed to the removal of injustices in particular cases, perhaps on the New Zealand model, by giving jurisdiction to the High Court in particular circumstances for particular individuals".I submit that this Personal Bill to enable Mr. Berry to be married to Mrs. Ward would not, in their particular circumstances, be subject to any of the arguments urged against such marriages in relation to the Bill introduced by the noble Baroness, Lady Wootton. Your Lordships will have heard that Mr. Berry was married to the late Mrs. Berry just over three weeks after Mrs. Ward was married, and accordingly Mr. Berry has not at any time stood in loco parentis to Mrs. Ward. Both Mr. Berry and Mrs. Ward are fairly advanced in years and Mrs. Ward suffers from a heart condition which has necessitated the insertion of a heart pacemaker. It is most unlikely that there will be any general change in the law as sought by the noble Baroness, Lady Wootton, during their lifetimes that would enable them to be married to each other. Mr. Berry and Mrs. Ward live, as I have said, in separate homes, and if they were 1044 permitted to be married to each other they would be able to live together in a joint matrimonial home in greater comfort and convenience for the remainder of their joint life.
I submit that a marriage between Mr. Berry and Mrs. Ward would enhance their family circumstances. I also submit that there is no ethical, moral, religious or social objection to such a marriage, and that their inability to be married to each other is the cause of real hardship to them. The only manner in which Mr. Berry and Mrs. Ward may be married to each other is by the enactment of a Personal Bill, and I submit that the circumstances of this case are so exceptional as to justify the passing of this Bill. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Lloyd of Kilgerran.)
§ 3.51 p.m.
THE LORD Bishop of LONDON
My Lords, I rise to give my support to this Bill and to express the hope that your Lordships will give it a Second Reading. As we have been reminded by the noble Lord, Lord Lloyd of Kilgerran, in December 1978, and again in 1979, the noble Baroness, Lady Wootton of Aibinger, endeavoured to carry a Bill through this House which sought to remove all the restrictions to marriage between those related by affinity, save with a modest limit of age. She was unsuccessful, for one reason or another, on both occasions—
§ Baroness WOOTTON of ABINGER
My Lords, will the right reverend Prelate give way? On the first occasion, my Bill passed Second Reading and was through Committee without amendment.
THE LORD Bishop of LONDON
My Lords, I readily accept that, and I did not indicate that it was not so in the words that I used. She was unsuccessful on both occasions. I could not be present on the second occasion, but on the first I opposed the Bill on Second Reading and proposed amendments in Committee. I made it clear on both those occasions that, in my view, there is a considerable difference, so far as marriage is concerned, between those related by kindred and those related by affinity.
1045 I said then, and I still hold, that in the former category marriage between persons closely related by blood would be contrary to the law of nature and must be forbidden. I stated my belief that, in the latter category, the objections to marriage between those related by affinity are not so much moral or ethical as social. It is therefore, I said, proper and open to legislators to permit such marriages as they may deem right and proper; and we are now, in this one instance, being asked to exercise such a discretion.
If ever there was a case that merited our sympathetic consideration, this is such a case. Mr. Berry will be 63 in a month's time. His stepdaughter will be 59 in July of this year. They are, therefore, collaterals of the same generation and there can be, in this case, none of the dangers that could arise through the commixture of different generations. Mr. Berry, as we have been told, has never been responsible for the care and upbringing of Mrs. Ward; indeed, when he married her mother she was already herself a married woman. Since the death of Mrs. Berry, Mr. Berry and Mrs. Ward have lived apart, but now they desire to live together as man and wife. I am of the opinion that we should make it awful for them to do so. I am glad to now that the right reverend Prelate the Bishop of Guildford, who is here and who poke in opposition to the Bill of the noble Baroness, Lady Wootton, in 1979, agrees with the view that I have taken.
I would only add two further observations which are incidental to the main issue before us. First, if we should pass his Bill, as I hope we shall, there still remains a problem relating to the application of the Canon Law. I understand hat Mrs. Ward is a Roman Catholic and Mr. Berry is a member of the Church f England. I cannot, of course, speak with any authority for the Roman Catholic Church, but I am credibly informed that in such a case as this, should the parties ask to be married by hat Church after the Bill has become an Act, a dispensation would be required and the likelihood is that it would receive sympathetic consideration.
As regards a member of the Church of England, Canon B.31 sets out the Table of Kindred and Affinity, within which all marriages purported to be made within the 1046 said degrees are void. One of the "said degrees" is that a man may not marry his wife's daughter. Should, then, this Bill become an Act, the marriage between the two parties would be legal by reason of statute law, but barred by reason of Canon Law, which is, incidentally, of course, part of the law of England. If a clergyman were invited to conduct this marriage, he would be free so far as Parliament was concerned, but would be in danger of committing an ecclesiastical offence, even though in the circumstances, in my judgment, it would be a very minor offence. This is, of course, a problem for the Church to sort out.
My own view—and it is purely a personal view—is that since the spirit of the application of Canon Law is to ensure an avoidance of rigidity on the one hand, and licence on the other, to refrain from and to respect the conscience of the individual, this is a case in which a Bishop would be within his rights in granting a dispensation from the effects of the Canon Law, once such a marriage was no longer void by statute law, I hope that such a course could be followed.
Secondly, this Bill requires us to look into the future, and I would not wish my support of it to prejudice any views I might have, should attempts be made to widen the rules governing marriage between those related by affinity. I should still be of the opinion that serious social insecurity could result from any wide spread relaxation, and I should want to stress such dangers.
But in this case, there is brought before us the hardship caused in exceptional circumstances, such as the noble Baroness, Lady Wootton, put before us movingly on a previous occasion, and I see no reason why we should not at some appropriate time introduce legislation to make it easier, in such cases as that of Mr. Berry and Mrs. Ward, to be permitted legally to marry, without requiring recourse to such a laborious and expensive process as that of promoting a Personal Bill. I would think that they have been put to much inconvenicence, anxiety and cost, in order to bring their desire for marriage before your Lord ships' House.
I should have thought that it should be possible, in such exceptional cases, for 1047 the law to provide machinery whereby such a marriage could be permitted without, necessarily, recourse to Parliament. I myself proposed this when, in the Committee stage of the first Bill of the noble Baroness, Lady Wootton, I suggested that the courts could be given power to grant permission under certain stated conditions. I was told then that such a course of action would be impracticable. But it has not proved to be o, as we have been told, in New Zealand, and I cannot believe that it would be beyond the wit of those learned in the law o devise some way by which persons in a similar situation to that of Mr. Berry and Mrs. Ward could be given permission o marry, without having recourse to Parliament. I hope that this House will ass this Bill.
§ 3.59 p.m.
§ Baroness WOOTTON of ABINGER
My Lords, I, too, have never met personally Mr. Berry or Mrs. Ward, but when I was about to introduce my Bill in the previous Parliament I received a communication from their solicitor, indicating that they were contemplating promoting a Personal Bill. But having heard that I was about to introduce a ill giving wider relaxation of the present marriage laws, they decided to wait to see what happened.
Both the noble Lord, Lord Lloyd of Kilgerran, and the right reverend Prelate have referred in some detail to the history of my Bill, but I should like to make perfectly clear the history of that Bill. I introduced the Bill in the previous Parliament. It was passed at Second Reading and then went to Committee, where it was unamended. Then came the general election. There is a rule that all Public Bills in both Houses, although the Membership of this House is not affected by a general election, die at a general election. So my Bill met with a premature death. Therefore I do not think, if the right reverend Prelate will allow me to say so, that it was quite an accurate description to say that I was unsuccessful. It was nothing that I or that Parliament did with the Bill which led to its death.
I hoped that the Bill would be the culmination of a long process of relaxation 1048 that goes right back to the Deceased Wife's Sister Act of 1907. There were further statutes and further relaxations in 1930 and 1960, and I thought that a Bill which would allow marriage between any two persons who were not related by blood or by adoption would be the logical conclusion of this process.
I think it may be appropriate to remind your Lordships that until the year 1857, which is not all that long ago, there was in this country no general law of divorce. The only way in which people could get divorced was by introducing Personal Bills, as Mr. Berry and Mrs. Ward are seeking to do today. Since then we have had a great succession of divorce Acts making changes in the divorce law. It may be that history is going to repeat itself and that this particular case is a sign of the times. Be that as it may, nobody, as has been amply pointed out by the noble Lord, Lord Lloyd of Kilgerran. and the right reverend Prelate, could say that the particular case before your Lordships today is anything but impeccable.
The vision that haunted many of the opponents of my Bill was that of a vulnerable young woman pressurised by a lascivious stepfather. Nobody quoted any cases of that kind, and there are none of that type on my file. I have a considerable file of cases which are, in principle, somewhat like that of the case which is before your Lordships today. In all my cases the parties are, I think, slightly younger; but they are people who have refrained from marriage because of this bar, and most of them are people of mature years.
That being so, it only remains for me to express regret that Mr. Berry and Mrs. Ward have been put to the trouble and expense of this very cumbrous and difficult process. I very much wish that my Bill might have succeeded and that therefore they might have been spared it. I earnestly support the Bill. I hope that it will be passed and followed by a happy marriage between this couple for many years to come. It may be, as I have already said, that this is a harbinger of a widening of the relaxations, and I for one will certainly give every attention to the prospects for that widening. But in this particular case nothing is at stake except what has been very fully put to 1049 your Lordships by my colleagues, the noble Lord, Lord Lloyd of Kilgerran, and the right reverend Prelate the Bishop of London, Nothing is at stake except the particular situation of these two people. They are, let me summarise it, of mature age; they have both been married; their marriages have been ended by death and not by divorce; they are deeply religious people. In those circumstances, no more acceptable special case can be thought of. I support the Bill.
§ 4.5 p.m.
LORD DE CLIFFORD
My Lords, I find myself in a most daunting position, as I am opposed to the Bill. I have the utmost sympathy for Mr. Berry and Mrs. Ward and I fully understand and comprehend everything which has caused them to ask your Lordships to pass this Personal Bill. But behind it we are doing something which in my view—and I submit that your Lordships should consider it—this House has already in principle rejected.
The noble Baroness most ably moved the Second Reading of a Bill, and after long and intensive debate that Bill was rejected. If we pass this Bill, I am slightly apprehensive that it might be used as a precedent to advance many others. We are not in a situation where we are saying to Mr. Berry and Mrs. Ward, "Yes, we are very sorry for you; you can do it". We are in a situation where we are saying, "The principle of the Bill, which we rejected, can be abandoned in your individual case." If we do that, we arrive at a situation where subsequently this House, having agreed to abandon the principle for one couple, will be asked to abandon it for all couples in this affinity class. However much I sympathise with Mr. Berry and Mrs. Ward, I do not think it right that this House should reverse that principle in a Private Bill. It is not the time and it is not the place to do so.
§ 4.7 p.m.
§ LORD HAMPTON
My Lords, I will speak only briefly in support of the Bill, and I speak for two reasons. First, I was a member of the committee which first vetted this Bill before leave was given for it to be introduced in your Lordships' House. Secondly, I do so in order to attempt to refute the implication that was 1050 made in this House that one cannot be, and I quote, "a genuine Anglican" and support a Marriage Enabling Bill, even such as the one we are debating today.
First, as concerns Mr. Berry and Mrs. Ward, my noble friend Lord Lloyd of Kilgerran and the right reverend Prelate the Bishop of London have very clearly stated the position. I support the view that here are two people who should be allowed to marry, although I noted the complication of canon law put forward by the right reverend Prelate. In this case there has been no problem of divorce. Mrs. Ward was never brought up by Mr. Berry in loco parentis. They are only four years different in age. They are both respected members of their respective Christian churches, and as we have been told, are spoken of as people of complete integrity. I agree that only those who believe that a stepfather should never be allowed to marry his stepdaughter are likely to oppose such a marriage as this—and here I note what was said by the noble Lord, Lord de Clifford.
This brings me back to my second point as to whether a Christian should oppose all marriage enabling Bills. When Lady Wootton moved her comprehensive Bill for the second time on 14th June last year, the noble Lord, Lord Sudeley, ended his speech with these words, recorded in col. 752 of the Official Report:I should like to urge all genuine Anglicans" —it is my emphasis—not to support the Bill on the grounds not only of what is said in Scripture, but also … in Archbishop Parker's Table".I did in fact support the Second Reading of that Bill and the implication must be that in those words the noble Lord suggested that I am not a genuine Anglican. I had never looked at it that way and was relieved to hear what the right reverend Prelate had to say today.
In that debate in June we were invited to accept the code of marriage as laid down in the Book of Leveticus. What we were not invited to do was to go back only a little further to the Book of Exodus, where the word of God to Moses at that time was that his people should exact not only a life for a life but also an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burning for a burning and so on. So I would suggest—and I am 1051 a bit cautious with so many Bishops here—that we cannot necessarily go back to Mosaic times.
A second point which I think may be much more open to criticism—and again I am slightly timid here—is that I do not believe we have to accept as the final word even what St. Paul said about marriage. I submit that the Bible is a source of inspiration but not a book of rules literally to be followed as Muslims, I understand, seek to follow the Koran. It was, I think, the poet Robert Bridges who said,Knowledge accumulateth slowly and not in vain".I am more of an optimist about our society than many people seem today. While learning from the past, we should also look forward to a happier future. That is what we all want: it is only as to the method of reaching it that we differ. I therefore support this Bill and retain freedom of action if the noble Baroness tries again with her Bill in the next Session. I hope at least that if we err it will be accepted that it is on the side of compassion.
§ 4.11 p.m.
§ LORD ROBERTSON of OAKRIDGE
My Lords, there seem to me to be two aspects to your Lordships' debate today. First, there is the effect on Mr. Berry and Mrs. Ward as individuals of any decision on the Bill. Secondly, there are the wider implications of that decision. It is on the wider aspects that I should like to offer a few thoughts.
When your Lordships' House last year considered and finally rejected the Marriage (Enabling) Bill of the noble Baroness, Lady Wootton, it became clear that at least some of the changes then proposed would have been contrary to Christian, and indeed not only Christian, teaching and tradition. Incidentally, I would here interject that it seems to be that one cannot isolate moral and ethical reasons from practical and social reasons; I believe that the two must inevitably tie up.
It was felt accordingly by many of your Lordships that the changes would tend to undermine family life. For example, the possiblity that a father would be allowed to marry a child of his household might lead to conflicts of interest that 1052 could cause marital instability, could affect his carrying out of his responsibilities as virtual parent and could result in the abuse of filial loyalty in the worst cases. For these reasons, we should be very careful before doing anything that undermines the father/stepdaughter relationship, which, like the father/adopted daughter relationship, needs institutional and social protection.
Now, my Lords, of course we must guard against applying rules and principles unreasonably rigidly. When doing my research and looking back to that reference in Leviticus, I happened to look at two chapters earlier, and I was interested to note that, should I discover mildew in my house, it is my duty to telephone the vicar and tell him. Therefore, it is understandable that it should be claimed on behalf of Mr. Berry and Mrs. Ward that the present law bears unduly harshly on them. Both of them have clearly given much thought to the question of marrying before deciding that it would be right to do so. I respect that decision so far as it goes for them and their family.
Unfortunately, we cannot consider their case in isolation, however much we might like to do so, we have to think of the wider implications and the many individual people who might be affected. There must be the possiblity that the passing of this Bill would be followed by the weakening of the existing law and that it would be used as the thin end of the wedge to amend the law in principle. Indeed, the noble Baroness, Lady Wootton, did express such a hope when she said that she hoped this Bill would be the harbinger of further changes.
At the risk of overworking a phrase, we all know that hard cases make bad law and we have the unnerving example of the divorce laws—again referred to by the noble Baroness—where changes started with personal Bills. Now I would freely admit that the subsequent abandonment of traditional principles may, on the one hand, have reduced hardship in many cases, but it has led to a vast accumulation of misery in torn lives which, if it had been foreseen, would surely have been thought unacceptable.
Therefore, I would say, my Lords, that if this Bill should become law and if subsequently it should be considered right to 1053 amend the law to deal with cases such as this without the laborious process of going through the Personal Bill procedure, it is of paramount importance that it is done in such a way as not to undermine the law in principle on marriages within the family, which at present, in my view, works to the benefit of family life.
The Earl of HALSBURY
My Lords, if the noble Lord, Lord Boston, will permit me, I should like to make a very brief intervention. I did not put my name down as I was not sure that I should be able to attend the debate. I merely wanted to say, as one who opposed the noble Baroness's general Bill, that I would still oppose the general Bill but I would not do other than follow the lead of my right reverend friend by saying that I would consent and approve the passage of this Bill.
§ 4.17 p.m.
§ LORD BOSTON of FAVERSHAM
My Lords, there are few cases which are more deserving of help than the case of Mr. Berry and Mrs. Ward. Indeed, there are few which are as deserving as theirs when one is considering whether a step parent and a stepchild should be allowed to marry. I am sure we are all grateful to the noble Lord, Lord Lloyd of Kilgerran, for the way in which he has moved the Second Reading of this Bill.
As noble Lords have recalled, we have considered twice within the past 16 months whether the law should be changed so as to enable a person to marry any kin of a former spouse or a former spouse of any kin, to quote the words of the Long Title of Lady Wootton of Abinger's Marriage (Enabling) Bills. On both occasions the Government of the day adopted a neutral attitude, for both Governments regarded the matter as one which is traditionally left to individual Members of your Lordships' House to decide.
On the first occasion when we debated my noble friend's Bill, 13th February last year, when it received a Second Reading, it was the last Government that adopted that position. On the second occasion, on 14th June last year, when my noble friend's Bill was reintroduced this Session, and failed by six votes to gain a Second Reading, it was the present Government which took a similar view. But, although 1054 both Governments remained neutral on the general principle, I believe it would be right to say that both recognised, as did noble Lords from all parts of your Lordships' House, that cases of real hardship arose under the present law because people related by reason of affinity are prevented from marrying. Feelings of great sympathy were expressed for some of those who were affected.
The cases of special hardship which attracted most sympathy were perhaps these. In introducing her Bills, my noble friend Lady Wootton had in mind particularly the possibility that marriage might take place between step-parent and step-child, and there has been mentioned, as an example, the case in which a wife dies leaving her husband with young children of their marriage, together with an adult step-daughter of the surviving husband. In due course the step-daughter takes upon herself the dual roles of mother and of wife and the husband has never acted in loco parentis towards her. But, of course, under the present law the couple are not permitted to legalise their relation ship. That is indeed a situation which arouses sympathetic feelings. Were they to marry, it would be good for the young children, it would be good for the couple and it would be likely to enhance family life and the state of marriage itself.
Again, as we have seen previously, hardship can be caused in circumstances in which there are children who would be legitimised by the marriage of a couple who are at present prevented from marrying because of their relationship. As we have also noted on previous occasions, and as I found while I was there, cases are brought to the notice of the Home Office of couples related by marriage who wish themselves to marry and where little or no harm would appear to be likely to arise if they were to do so. On the other hand, there is the strongly held view, which has again emerged this afternoon, that to abandon the restrictions which exist at present would threaten family life and the state of marriage itself, and would harm the very special family relationships which are created when two families are joined by marriage.
I believe we have found in previous debates that one situation which is less acceptable than some is that in which the step-daughter was much younger when 1055 her mother remarried, and so the husband—the step-father—had been standing in loco parentis to the step-daughter. There seems to have been general agreement that where a step-parent has taken on the role of parent towards the step-child, the very idea of marriage between them would be quite contrary to the whole character of the relationship which ought to exist between them.
As we have found during the course of our debates there is, I believe, no satisfactory way in which the more deserving cases could be permitted under a general marriage enabling Bill while the less acceptable ones remained banned, and I very much take the point which was made by the right reverend Prelate the Bishop of London on the 15th March last year, during the course of the Committee stage of the Bill introduced by my noble friend Lady Wootton of Abinger, and repeated during the course of his speech this afternoon. We debated at some length the question as to whether means could be found for referring to the court applications for consent to marry, and it fell to me to spell out a number of fairly detailed objections to the practicability of embarking upon a course of that kind. I note, of course, what the right reverend Prelate the Bishop of London has said about what has been done elsewhere, but I am bound to say that I still remain unconvinced that we should be able to devise a practicable, short and uncostly means of doing that. I do not want to spell out all the reasons that we went into then. Perhaps there may be another occasion when we shall once again embark upon that particular exercise.
I return to the Bill now before the House. The statement of reasons for the Bill, carefully and painstakingly drawn, and all that we have heard about this particular couple, Mr. Berry and Mrs. Ward, show that theirs is indeed, I believe, a deserving case—one of the most deserving cases that one could imagine. There as never been any question here of a parental relationship between them; their ages are similar and there is no complication in their case arising from the presence f children of either of them. One is ed to believe that nothing but good could come from their being permitted o marry.
1056 Before we come to our decision, however, there are one or two other brief observations that I should like to make. In coming to our decision I do not believe that we can ignore the general principle involved. I feel that we must face up to that. If we pass this Bill I believe we shall necessarily be conceding the principle involved; that is to say, that people at present prevented from marrying by reason of a relationship of affinity, should be allowed to marry. I do not really see how we could pass this Bill and then decline to pass a Bill along the general lines of the Bill introduced by my noble friend Lady Wootton. I do not think we can ignore this. If we pass this Bill, at the very least what we are conceding is that we shall be prepared to consider further exceptions, further applications for exemption from the present law. I wonder whether we are really prepared to insist that all those who seek such permission should have to go through this costly and lengthy procedure. Here again, I very much agree with the tenor of the remarks made this afternoon by the right reverend Prelate the Bishop of London.
Mr. Berry and Mrs. Ward are people of modest means—we have been told that. There may well be others of means still more modest, which just would not permit them to embark upon a measure of this kind. It may be of interest to your Lord-ships to know that I understand that the total cost of presenting a Bill of this kind, that is to say the printing costs, which form the main element, and the House fees, which I gather are comparatively small, is in the region of £1,000, and that does not include the fees of parliamentary agents, which of course is a matter between them and their clients.
There is this further point. It is necessary when going through this procedure, as has been seen, for the couple concerned to reveal many personal details about themselves. There is no way of avoiding that under the present procedure, and it seems rather hard that they should have to go through this no doubt painful process of submitting to public scrutiny personal details about themselves, even though it is done in the sensitive and understanding way in which it has been presented here in this case. It is perhaps worth noting that this is something from which those who, under our matrimonial law 1057 and jurisdiction, go through the Family Division of the High Court, the county courts or before magistrates sitting in domestic courts, are now mercifully and rightfully protected. It is rather sad that it is not possible to afford this couple the same protection from publicity and degree of privacy as, I say, a couple seeking a divorce. But of course it is simply not possible to secure anonymity under the present procedure, although I am quite certain that everyone concerned, and as we have seen today especially, seeks to deal with it as delicately as possible.
I do not know Mr. Berry nor Mrs. Ward, but from all we have heard and read about them they are clearly a modest couple, a genuine couple and indeed a courageous couple. Their modesty has probably meant that they have had to summon up even more courage than perhaps otherwise might have been the case. While this is obviously a matter on which individual noble Lords will make up their minds, I would not myself feel able to stand in the way of this Bill; and I would add, in a personal capacity, that I hope your Lordships will give this Bill a Second Reading.
§ 4.28 p.m.
THE LORD CHANCELLOR
My Lords, I am really here in a dual capacity. It is proper for a member of Her Majesty's Government to speak on a Bill of this kind, unusual as it is. It is also necessary for a Member of the House to declare his own opinion on his own conscience and I think I can reconcile both these functions without impugning my own integrity.
So far as the Government are concerned, I declare their absolute neutrality. This has been a matter of discussion between departments. We see nothing wrong in a Personal Bill of this kind, other than, of course, the inconvenience and embarrassment to the parties. It is a well-established although little used purpose for which Parliament exists; it is a matter upon which Parliament must come to its own conclusion. We do not think that any question of public policy is involved in this Personal Bill and therefore we are absolutely neutral.
Having said that, and I hope without any attempt whatever to influence your Lordships otherwise than by an expression 1058 of my own opinion, I must say that I come down firmly and without any doubt in favour of this Bill myself. In that respect, I differ—and I will give my reasons in a moment—from my noble friend Lord de Clifford, who thinks that the Bill infringes the general principle, and to a lesser degree (because he expressed it in a rather more qualified sense) I differ from the noble Lord, Lord Robertson of Oakridge. I do not think it involves any departure from general principle and I think that for historical reasons the necessity for introducing the Bill has uncovered what is undoubtedly a defect in our legal system and, for that matter, a defect in the Canon Law of the Church of England, if the right reverend Prelate will permit me to say so.
You see, my Lords, there is a fundamental difference—and there always has been a fundamental difference—between the law of consanguinity and the law of affinity. It might be convenient if I just reminded the House of the situation which existed before the schism which arose out of the little local difficulty concerning Katherine of Aragon, whose precedent as a matter of fact has a curious relevance to this Bill. Henry VIII "married" Katherine of Aragon. I use the word "married" in inverted commas, because that was the whole question. She was within the bounds of affinity with Henry VIII because she was the widow of his elder brother, Prince Arthur, who had died.
In order to marry Katherine of Aragon—again I use the word without prejudice—he had to get a dispensation from the Pope because—and this is where the relevance to the present Bill becomes apparent—the Church as it had developed up to that point had always allowed dispensations for individual cases which came within the law of affinity though not within closer degrees of the law of consanguinity. Henry VIII was able to get and did get a dispensation from the Pope for his marriage with Katherine of Aragon. It was not considered, with great respect to my noble friend Lord de Clifford, the smallest deviation from the general law of the Church or the law of the land at that time that he should do so.
There were in fact two very considerable questions which arose. The first was whether the marriage with Arthur had 1059 been actually consummated, and the finding of fact was that it had not, although there was a dispute about it. If it had been consummated I do not think the Pope could have given a dispensation according to the Canon Law of the Church at the time. Henry, however, had qualms of conscience, no doubt engendered by his passion for Anne Boleyn. He thought that the Pope could not give a dispensation because it was against Leviticus, and therefore God's law, that the law of affinity should be infringed at all. So he was free to marry Anne Boleyn, and this is what this little local difficulty arose about.
In those days the Protestants—and we have heard an example of that this afternoon—were rigorists and they took Henry's side, although Henry was far from being a Protestant in many respects. At any rate, the point is that after the Reformation the power of dispensation which formerly existed in the Pope fell to Parliament, the Queen in Parliament, to exercise. That is why the Personal Bill is a perfectly proper weapon to use, although it is expensive and embarrassing and tiresome, and I think imposes hardship on the parties. It is a perfectly proper instrument to use in the present case and it can be used without infringing the general principle.
I thought it right to emphasise this historical background based on Canon Law partly because of my own opinion in the matter. I did happen to vote against the first introduction of Lady Wootton's Bill; I thought that, as drafted, for the reasons given by the right reverend Prelate at that time, it did possibly undermine the general principle of the law of affinity, which has, I think, still a public policy value. But I never thought and do not think now that there ought not to be a cheap, easy and reasonable way of granting a dispensation more convenient than that upon which we are now currently engaged. I do not altogether think that the courts themselves would like to treat such an issue as justiciable unless very proper firm guidelines were laid down by Parliament. But that there ought to be a power of dispensation I have no manner of doubt, and indeed there always has been.
The only trouble is that the power of dispensation which exists is inconvenient, embarrassing and, as we have discovered 1060 this afternoon, somewhat timewasting in the High Court of Parliament. But as it is the only way round what is otherwise an insuperable difficulty I have absolutely no doubt in my mind that we ought to take it. Although I shall not reproach my noble friend Lord de Clifford for taking a somewhat different and more rigorous view, I should, if he pursues the matter to the Division Lobby, without hesitation support the noble Lord, Lord Lloyd of Kilgerran. I hope this Bill goes through and that this couple have a happy marriage at the end of it.
§ 4.36 p.m.
§ Lord LLOYD of KILGERRAN
My Lords, after that brilliant address to your Lordships from the noble and learned Lord who sits on the Woolsack, it would seem to me that I should be wasting your Lordships' time by expressing any further views, certainly on the history which he has developed so ably, or even on the facts of this particular case. I had intended to say a few words to the noble Lord, Lord de Clifford, to try to persuade him that the position was not as he had seen it, that the failure to pass the Bill of the noble Baroness, Lady Wootton, did not deal with this matter of principle, and therefore that the noble Lord should not vote against the Bill which I have the privilege of presenting to your Lordships. After the speech of the noble and learned Lord the Lord Chancellor, I hope that Lord de Clifford will allow this Bill to go through without dividing the House on this matter.
I am very grateful to the right reverend Prelate the Bishop of London for his very strong support of this Bill. He said that if ever a case was worthy of help and should meet with our sympathy this was it. He also explained the difference between the law of the United Kingdom and the Canon Law, and made some very helpful observations as to what course these two persons might take in the spirit of the Canon Law. I was glad to hear that the right reverend Prelate the Bishop of Guildford also agrees with the support the right reverend Prelate the Bishop of London is giving to the Bill.
I am also grateful to the noble Baroness, Lady Wootton of Abinger, for the additional information about the course of her Bill in the other place. I would say this to her, that the passage of this 1061 Bill through your Lordships' House cannot, in my view, be a harbinger of things to come. It has been accepted that exceptional cases arise, and, as the noble and learned Lord has pointed out to your Lordships, these exceptional cases can now be dealt with under the clumsy and expensive procedure of the Personal Bill. In no way has there been any indication or suggestion that the procedure of the Personal Bill is inappropriate in this case. In fact the principle of the Personal Bill is the only way in which a deep injustice of the kind that exists at the present time with regard to Mr. Berry and Mrs. Ward can be dealt with.
I am grateful for the support of my noble friends Lord Hampton and Lord Halsbury, and for the clear exposition and kind remarks made about myself by the noble Lord, Lord Boston of Faversham. He was good enough to say that there were few cases as worthy of help as the present. As he said, the case of Mr. Berry and Mrs. Ward is one of the most deserving cases that could come before this House.
My Lords, I do not propose to summarise the facts. These two persons are collaterals of almost equal age. When Mr. Berry became the stepfather she was a married woman, and therefore he did not become in the position of locum parentis. I can only quote the noble Lords who have addressed your Lordships and say that it seems to me that nothing but good can come of this marriage.
§ On Question, Bill read 2a, and committed to an Unopposed Bill Committee.