HL Deb 25 March 1981 vol 418 cc1223-54

7.15 p.m.

Lord Boston of Faversham

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Boston of Faversham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Nugent of Guildford in the Chair.]

Clause 1 [Marriage between relations by affinity not to be void]:

The Lord Bishop of Winchester moved Amendment No. 1:

Page 1, line 7, after ("affinity") insert ("except a marriage between that person and a relation of his by affinity, being a relation who has been accepted by that person as a child of his family").

The right reverend Prelate said: Over the last weekend I was, perhaps wrongly from the point of view of a Bishop, very closely involved with the production of a new musical Passion and Resurrection play in Winchester Cathedral, and tomorrow I make my way to chair, once again, the Doctrine Commission of the Church of England. One might say that in those two events I am doing what I regard as the primary duty of a Bishop; telling a story concerned with the Gospel, if you like, and looking after, and looking for, the truth and guarding it for the Church.

So that, pressed by both of those very demanding activities, I must confess that on my way up here from Winchester this afternoon I was asking whether my journey was really necessary, for I do not want it to be though that, because there are four bishops present in the House at this moment, we regard the matter of this Bill as of prior interest to the Church. It is not. in my view, an ecclesiastical concern, but I speak because I am convinced that it is a concern for society.

The noble Baroness, Lady Wootton, whose absence this afternoon we deplore, because I believe it is on account of sickness, has promoted this Bill, as she has others, in the name of liberty and emancipation. But we have had experience in our past history of emancipation that misfires, and I venture to suggest to noble Lords that this could well be such a case. It often misfires because we do not appreciate the social function of negative safeguards—what in, the past, and in anthropological language, were called taboos. "Taboo" is an unpopular word. It is often laughed out of court as a matter of mere adherence to the past, to a meaningless tradition or even to a superstitition. But properly understood sociologically, a taboo is a fence to exclude certain fears, certain strains, certain anxieties and animosities from a particular relationship. It is a device to set the community free from anxiety, by making certain options unthinkable.

That is what lies behind the undoubtedly ancient taboos set there in the 18th chapter of the Book of Leviticus, which we know as the Table of Prohibited Degrees. They refer, of course, to an earlier tribal society when, as happens in many parts of Africa today, the whole of a village may be interrelated or consist of people who have married into that large, extended family, where there is a strict rule of exogamy, and where a young man or a young woman who seeks a marriage partner has to go outside the village, because any other course would disturb the equilibrium by introducing jealousies, fears or suspicions into that community's life.

In a large extended family society—you have to include grandmothers and all the rest—bishops of the Church of England are not today rushing in defence of innocent grandmothers fleeing from the lascivious advances of young men with odd proclivities. We are concerned with society as it exists today and the very much smaller family group—the household, as the right reverend Prelate the Bishop of Durham called it in his speech at the Second Reading of this Bill, when he said To have conflicting marital interests within the household does, I submit, strike at the root of family life". I believe that the family circle, whatever its size, must always be a charmed circle. Those who are within it are protected from certain possibilities in order that others may develop. In order that there can be the kind of total intimacy, total dependence upon one another, there must be removed the fear that this position could be exploited by somebody who began to feel other than familial desires within that circle.

Let us remember today that not everybody is as privileged as are most Members of this House in having perhaps two homes under our own name, or at least fairly reasonable houses where families can have room and space. I know only too many households where young marrieds must go on living in one or other of the parental homes for years before they can obtain a roof of their own. I know also of so many cases of divorce which invariably increase the number of children who are children of only one partner but who are adopted into that family circle and given exactly the same freedoms and securities of that sacrosanct family circle.

We say, as a joke, at our wedding parties, that we have lost a daughter but have gained a son. I believe it is possible that if this Bill goes through as it stands the mother, at least, or the father might feel that they had gained a potential rival: that the mother might wish to marry, if the daughter happened to die, the young man who was so attractive who had been accepted into that family circle. So we are concerned with the family. The executive director of the Board of Deputies of British Jews has expressed his belief that the Jewish community of this country is distressed by the prospect of this Bill and within its own law and custom has no intention of abandoning any part of the table of affinity that is set down in its ancient religion —again not an ecclesiastical concern but the time-honoured concern of the Jewish community for the family and its place in society.

The wording of this amendment, I believe, introduces a modest taboo that is appropriate to modern society. Where a man or woman has accepted a child or young person as a child of the family so as to be in loco parentis to that person, this amendment would preclude the possibility of marriage between them. It would not go further than that. People who had never been within that charmed circle together in a relationship of quasi parent and quasi child would be as free as the Bill would allow them to be. This would discourage a stepmother from considering the divorce of her husband because she found the stepson attractive, or a stepfather considering the possibility of marriage with a stepdaughter who had come to rely upon the openness of family relationship in perfect trust.

It may he argued that this is a difficult legal concept. I beg to differ. The concept of "child of the family" is not new to our law. The phrase has been used and defined in the Matrimonial Proceedings (Magistrates' Courts) Act 1960. The interpretation given in Section 16 defines the phrase as: (a) any child of both parties;"— that of course is certainly excluded from our considerations under the Bill— and (b) any other child of either party who has been accepted as one of the family by the other party". A number of decided cases have been made on this point. Very briefly, I refer to Bowlas v. Bowlas in 1965, Dixon v. Dixon in 1967 and then, under the All England Law Report cases, H. v. H. in 1966 by his guardian's intervention and B. v. B. in 1968. In all those cases it was perfectly clear what the phrase "a child of the family" means. I submit that it is a phrase which has a clear legal connotation. So I ask that the family circle be once again established as sacrosanct and this modest taboo accepted in order that there may be safety and freedom from possible exploitation. I beg to move.

7.25 p.m.

Lord Boston of Faversham

May I say, first, that I am most grateful to the right reverend Prelate for his remarks about my noble friend Lady Wootton of Abinger. She is very sorry indeed not to be with your Lordships tonight. I am particularly sorry, not only because of her illness but also because I am afraid that I am an inadequate replacement for her. I am sure that we all join in wishing her a speedy recovery.

I quite appreciate the considerations which led the right reverend Prelates the Bishop of Winchester and the Bishop of Norwich to put down this amendment. However, there is a preliminary point which I feel bound to make. I am sorry to have to do so, but I do not think I should be doing my duty to the Committee if I did not make it. This is a major amendment which goes to the very roots of the Bill, yet it was not tabled until yesterday. So most of your Lordships will not have had a chance to see it until today. However, the Second Reading debate took place on 25th February, a month ago today. I feel, and I say this in the gentlest possible way that I can, that a little more regard really should be paid to the convenience of your Lordships. Rather similar considerations apply to the very big and major amendment, Amendment No. 3, which was put down only on Monday.

This amendment which is before us at the moment goes, as I have indicated, to the very roots of the Bill. It would indeed run counter to the whole principle of the Bill. In fact, it is about as close as one could possibly get to a wrecking amendment. I am bound to say that the right reverend Prelate has made my case for me. He has just made what was undoubtedly, I submit, a Second Reading speech. It is of course the case, as some of us have acknowledged before, that certain noble Lords simply would not wish to see a marriage at all between a stepchild and a step-parent, and particularly between a person and somebody who had acted in loco parentis towards her or him in the circumstances described by the right reverend Prelate. But it has been agreed generally in our previous debates—and there have been many—that there does not seem to be any way of excluding such cases from the provisions of the Bill without also excluding the sort of cases of real hardship which have been brought to the attention of your Lordships by my noble friend Lady Wootton and other noble Lords.

Let us look at some of the difficulties which the amendment would involve. It could be that for a short while the person related by reason of affinity had been accepted into the household as a child of the family but that thereafter that person went to live elsewhere and had no dealings directly with the other party and that when they came together much later on—perhaps around the time they found they would like to marry—the other party's wife or husband who had been in the household when the then child was accepted as a child of the family had long since died. That would of course be very different from the sort of case in which the original husband and wife had acted in effect all along in loco parentis to the child.

If this amendment were passed, it would rule out both types of case. This sort of case touches upon cases that we have considered all along in dealing with my noble friend's Bills. Indeed, many cases of this type have been among the very ones that this Bill is designed to help, for there has often been cited in the course of our debates the case of the stepdaughter whose mother dies and who is older than other children within the family—children of her stepfather and her own mother—and who acts then as a mother towards those other children, and who looks after the household and whose relationship with her stepfather develops quite naturally to the stage where they would wish to be joined in marriage. If this amendment were to be passed, such a couple would be prevented from taking what in those circumstances would be perhaps the most natural and desirable course in the world for all concerned, not least for the other younger children.

As the right reverend Prelate has mentioned, "a child of the family" (that is of course a legal technical phrase) might not be a child in terms of its age. Moreover, how would it be decided whether the particular circumstances amounted to the person having been accepted as a child of the family? That could well be open to dispute, as indeed is sometimes the case in divorce actions. There is no provision here to enable that to be decided. What provision is proposed to enable that to be decided? Ultimately, this could only be resolved by the court.

On this amendment I am not going to embark upon the practical problems involved in bringing the courts into these matters because we shall have to go into those on Amendment No. 3, but by passing this amendment we would immediately and automatically need to involve the courts, and the practical problems involved, not to mention the possible costs, would not be small. Let us not forget that it is the whole future of these couples that we are considering tonight. So, while I understand the motives behind this amendment, I hope that the right reverend Prelate may be disposed to withdraw it. As I have said, it goes to the very principles of the Bill and I feel it is only fair to say now that if this amendment were to be pressed I would need to invite your Lordships to resist it.

Viscount Hanworth

I find it really rather extraordinary that what is very nearly a wrecking amendment should have been produced right at the last moment, bearing in mind that this is a very simple Bill and there has been ample time for tabling amendments. I saw this amendment only when I came into the Chamber, because in fact I had asked for the amendments yesterday.

I think what must be realised is that, rightly or wrongly, we have ceased to dictate private morals. Nowadays we legislate only in regard to what is against outside or national interests, and the second amendment, which I think is extremely reasonable, means that this sort of liaison will not occur among juniors. We are going further than the age of majority today; we are going to 21. I really do not think that we should lay down and dictate to people how they should behave, so long as it is not against the national interest. That was precisely what I was going to say on a subsequent amendment—and I have now said a certain amount of it, unfortunately. I hope that your Lordships, having voted for this Bill, will not be deterred by this amendment, which should be negatived out of hand.

The Lord Bishop of Norwich

I hope your Lordships will allow me, on behalf of and with my brother Prelates, to say that if we have been discourteous to the Committee in the lateness of this amendment, naturally we are sorry, but I think that the noble Lord, Lord Boston's strictures on the amendment need looking at again, because as I read column 1116 in that very clear-cut debate that we had on Second Reading, it is this very issue about which the noble Baroness made such a strong point. Noble Lords will remember that she said: The current image which is mostly put forward of this Bill is that of the lascivious husband who now sees an attractive daughter of his wife by a former union and thinks she perhaps is to be preferred to the wife to whom he was already married and takes steps to get rid of that wife in order to marry her daughter". This, says the noble Baroness—whose illness we are sorry about and whom we wish a speedy recovery—is the image. She then continues by saying that this is emphatically not what she means by this Bill. It therefore seemed very proper, as she disavowed this as her aim, that we should put a reasoned amendment which sought to disabuse the minds of the public of what is at first glance what this Bill could do.

In my optimistic and hopeful way I had imagined that this was such an obvious amendment, which would at least curtail the worst possible excesses of this Bill; that in wisdom and also in concern for the happiness and stability of family life your Lordships, whatever view you may hold about the main Bill, would agree that this is a proper amendment. This is an amendment which attempts to stop just this stepfather and the young stepdaughter situation at its most serious, putting the girl into a dreadfully exposed and dangerous situation and therefore cutting across what I understood to be the argument of the noble Baroness, in which she was seeking to recognise that on the one hand those opposed to her Bill were speaking on principle—Biblical principle, Levitical principle, prayer book principle and the long history of Church principle in our country and the hard cases which she enumerated and which the noble Lord, Lord Belstead, reminded us in the archives of the Home Office come to a very small number of known cases over the last 15 or 20 years. So this is really taking a very large nutcracker to deal with a very small nut. I think that will appear in the very reasonable third amendment.

In this case we have both together the principle of caring for the family and the care for the individual girl in danger, and therefore it seems to me that whatever noble Lords may feel about the general principle of the Bill, this amendment is a real attempt to care for and watch over the cases of particularly young stepdaughters who I think we have a proper responsibility in your Lordships' House to care for in terms of care and compassion. Therefore, in my optimistic way I had imagined that this amendment would go through without anyone even attempting to divide the Committee on it; but as I gather this may happen, I should like to say that I support my brother right reverend prelate in his amendment.

7.40 p.m.

Lord Soper

I have no pleasure in finding myself in disagreement with my ecclesiastical friends, but nevertheless I feel there is a need to present certain evidence which hitherto I think has been stated but certainly not proven. May I preface what I have to say with a gentle comment about the relationship of a taboo to morality. A taboo is that which you persist in until you have got the sense to get rid of it. Therefore, I find no comfort in the idea that preservation of the Levitical code is an expression of the way in which we have developed in our spiritual understanding, for which, in a period of henotheism, as your Lordships will know, in which that code was first adumbrated, very different parameters were required than those which belong to a civilised society today.

Secondly, I must agree with those who feel that my ecclesiastical friend who proposed this amendment was in fact proposing the destruction of the Bill itself, and that the substance of his argument was very much that of a mountain which ultimately produced a very small mouse. I respect those—of course I do—who regard the whole concept of affinity as being one which should be regarded with care and with a certain precautionary view, but at the same time I believe there is a practical relationship of this question which must not be ignored. It is, of course, possible to imagine so distributing the human pieces on the social chess board as to result in the condition of checkmate.

It is possible to conceive of dangers that arise in this particular field, and they are dangers which, if they occurred, would, I think, be substantial. But I have been a long time in social work, and over the 55 years of my own experience I cannot remember a case in which this amendment would apply with profit and with success. Most of those cases which are envisaged are cases which can be seen upon the technical chess board, but the complications which prevail in the real world are such as to make it impossible to select an amendment of this kind and regard that as doing something to improve a Bill. There are innumerable other cases that belong to the complex of human relationships which, if this amendment were agreed, would also require to be excluded from the provisions of the Bill. In that regard I entirely agree with those who would suggest that this is a matter of private rather than of social concern. At any rate, it is a matter which should not be exposed to the rigours of law which could not possibly anticipate the complexities of the human situation.

It is perfectly true, and no one would wish to doubt it, that marriage is a hazardous business anyhow. But the attempt to set up the safeguards, the stockades, that are suggested in this amendment, does not contribute anything towards that emancipation which I believe can contribute more to the welfare of the family than a return to the Levitical code, which should be outdated and regarded as obsolete, or at any rate transformed into something which is no longer a taboo uncritically accepted but a moral principle intelligently and progessively applied. It is for that reason that I for one will vote against this amendment.

The Earl of Lauderdale

When I saw my dear friend, the noble Lord, Lord Soper, enter the Chamber, I knew that we were of course coming here for opposite purposes. When he speaks of the complexities of the human situation, we approach the matter from, I think one has to say, diametrically different psychological viewpoints, and it is proper that both should be well aired. In regard to all the amendments which have appeared on the Marshalled List in the past two or three days, I think it is fair for Lady Wootton to complain that she did not have much time. There she is on her sickbed; we wish her well, and of course no discourtesy to her was intended. On the other hand, I do not know how busy are noble Lords opposite, but I do know that I have the greatest difficulty, even with 15 days warning, to find the two or three hours extra which are necessary to settle down, master a Bill, master the argument and master the briefing, ring up one's friends and get one's mind ordered. Although it was sad that Lady Wootton should be confronted on her sickbed with amendments put down late, it is none the less a reality of life, in a non-professional part-time House, that some of us have great difficulty in getting down until just beforehand to the "nitty-gritty" of the particular problem that concerns us.

Like the right reverend Prelate the Bishop of Norwich, I am surprised that this amendment evokes such resistance. There is one point about it to which I will refer in a moment on which I have a little niggling doubt, but the purpose of the amendment I should have thought was quite clear. From the way the noble Baroness, Lady Wootton, presented her Bill for Second Reading, for the third time in a few years, one would have thought that her own very reasoned approach would be open to this particular very carefully reasoned and moderate amendment to protect stepsons and stepdaughters.

One point was made by the noble Lord Lord, Boston. He said he thought it was generally agreed in the previous debates that provision must be made to meet questions of hardship. I am not sure that there is quite the generality of agreement that he refers to. This Bill got a Second Reading in the previous Parliament. It was rejected on Second Reading in the last Session of this Parliament. It got through the other day, and I think it is only fair to say that had some of us not been busy with other matters it might not have got through the other day. At any rate, there are those in this House who sincerely believe it to be a bad Bill and mistimed, abolishing an absolute prohibition which is the result of many centuries of social experience of many countries and religions, threatening and designed to threaten the sanctity of privacy and decency, violating a deep sense protected by the concept of shame. Many of us feel this very deeply. I have finished my Second Reading speech; I quite appreciate that this was rather a lengthy point.

Turning to one other point to be made with regard to this amendment, the noble Viscount, Lord Hanworth, suggested that those of us who are critical of this Bill are trying to dictate private morals. Not a bit of it. What we are saying, at any rate what I am saying, is that the greater the plurality of society the greater the need for these anthropological taboos—not the less, the more. We are not trying to dictate matters, if you like, of private individual purity, but we are trying to protect the sanctuary of the home.

I have one point which I raise, and it may well be that my noble friend on the Front Bench when he comments on the amendment may allude to this. I wonder whether the word "child", despite its respectable legal antecedents, is quite the word we want. I wonder whether the word "ward" might not serve the purpose better. But whatever is the right wording, I feel I must declare straight away that if this amendment is pressed to a Division I shall certainly support it.

Lord Milverton

On this occasion I would support my noble friends the right reverend Prelates in their amendment. I was not able to be here during the Second Reading of the noble Baroness's Bill, but reading it, and listening carefully on other occasions when this subject has been discussed and listening carefully today, I, too, feel, as one who would support it, we are not wanting to be holier than thou, we are wanting to safeguard, as the right reverend Prelate the Bishop of Winchester said, the holiness and the loveliness of marriage. There can be openness of affection without it being felt that that affection has got to lead to a man and woman becoming husband and wife; where there can just be that loving open affection in a household between men and women who can feel they have an affection without having to go to the extent of marriage, to the physical side. Surely, in having that feeling, we are not wanting to keep outdated taboos? We have the greatest feeling for men and women and the greatest feeling that young girls should be able to be brought up to realise that and to realise that men have respect for them.

At the same time young boys should also be able to grow up realising that and to grow into men and to have respect for women. That is why in perhaps simpleness—and I hope that it is not simpleness—I should like to support the right reverend Prelate. I do not think that we are being hard. We want to uphold the beauty and the loveliness of marriage, the love and affection which is involved, which is quite distinct from the love and affection in other relationships. So if the amendment is pressed to a Division I shall support the right reverend Prelates.

Viscount Hanworth

For goodness sake! let us get back to practicalities. Most people faced with this type of situation would simply live together. The people who we are considering are basically those who are religious and highly moral and who are prevented from marrying. There was the idea of course in older days that if people were living in adultery one encouraged them to marry. It is no good talking about this in "highfalutin'" terms. The plain facts are that in most cases they will simply live together. What you are doing is denying the possibility of marriage to people who are doing just that. I appeal again to noble Lords on the opposite Bench really to consider this matter from the practical point of view and not—as I think they have—from the idea of the church going back, which, of course, appeals to many of us. We must face where we are today and we must make the best of what we have got, and I think that this amendment certainly does not do that.

The Earl of Halsbury

I hope that the right reverend Prelates who have sponsored this amendment will not allow themselves to be intimated by some of the criticisms that have been addressed to them. I do not feel that the right reverend Prelate the Bishop of Winchester made a Second Reading speech. The amount of legal cases that he quoted in the course of the proceedings in Committtee are clear evidence of having done his homework in detail on the points involved and if he chose to take his time over finalising the wording of his amendment then I think that he is absolutely entitled to do so. Both Front Benches on Government Bills sin over and over again by tabling amendments by the hundred which we have no time to consider at all before they have come up in Committee. if the right reverend Prelates choose to divide the House on this issue, I shall follow them into the Division Lobby.

The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)

I found it helpful that the right reverend Prelate the Bishop of Winchester spoke at the beginning of the speech which he made on this amendment in quite broad terms because it reminded me, at any rate, of some of the major issues which are raised by this Bill, and they are issues which we shall be discussing in the next few minutes when debating this Committee stage. I think that there is one broad issue that perhaps I ought to bring to the notice of the Committee and which was not put to your Lordships in quite this way on Second Reading. The noble Baroness, Lady Wootton, referred to the law as it exists in other countries. I am also so sorry that the noble Baroness is unable to be here this evening and to learn the reason why she is absent. However, I thought that perhaps it would be helpful to the Committee in deciding on the amendments which we have before us, to have some further information about foreign law.

According to information furnished by the Council of Europe through our diplomatic respresentative in Strasbourg, there is only one of the member Countries of the Council—namely, Sweden—which has no general legal prohibition on marriage between persons related by affinity in the direct line. Six countries—Austria, Denmark, France, Germany, Iceland and Norway—have provision for dispensation to ameliorate the general prohibition, and the rest have restrictions which are as rigorous as or even more rigorous than, those contained in English law as it stands today.

The Council of Europe memorandum discusses the law of 17 of the 21 member countries, excluding only Cyprus and Liechtenstein as well as the United Kingdom and the Republic of Ireland. My right honourable friend's department then tried to pursue our explorations a little further with regard to Australia, New Zealand and Canada. The net effect of the information which we have been able to gather was that only in Sweden, Australia and New Zealand is the law on prohibited degrees of affinity either non-existent or more relaxed than ours. So we are discussing a matter of which other countries throughout the world also take a very serious view—not just right reverend Prelates who have been speaking to your Lordships' Committee. Having said that—

Lord Boston of Faversham

I am most grateful to the Minister the noble Lord, Lord Belstead, for giving way. I wonder whether he can help the Committee further on the points which he has raised in connection with his survey of overseas information. Can he say whether the comparisons which he has brought forward also involve a comparison as between this country and the first group of countries to which he referred—the EEC and other European countries—so far as their legal systems are concerned? Has any comparative exercise been done so far as that is concerned? Also, can he say whether or not he would agree that, as regards the other group of countries, and I am thinking in particular of the reference that he made to Australia and New Zealand, those are, in fact, the two countries which are most closely related to ourselves both in terms of social background and, indeed, their legal systems which are the same as ours?

Lord Belstead

I am afraid that I cannot answer the first question which the noble Lord, Lord Boston, has put to me, but I think that it might go some way to satisfy the noble Lord if I say that arrangements could be made, if the Committee wishes, to place a copy of the document to which I referred in the Library of your Lordships' House.

As regards the second point which the noble Lord made, I would not wish to cross swords with him on that matter because he is a lawyer and I am not. I think that probably there is a great deal in what he has said. None the less I thought that it was important just to set in general context with regard to other countries, so far as the Home Office has been able to look at them, what the situation is and not, therefore, to assume that in some way this country is the odd man out. I think that it does show—and this is the point that I have tried to put to your Lordships—that in many, many other countries there is great concern about the subject matter of the Bill.

Having said that, this amendment, of course, goes a good deal wider than Amendment No. 2 which is in the name of the noble Lord, Lord Robertson of Oakridge, inasmuch as the existence of the parent/child relationship in the context of a family unit at any time in the past would involve a continuing and indefinite bar to later marriage between the parties. On the other hand, I am interested that none of your Lordships, I think, has made the point that where the relationship of parent and child is of a technical character, in the sense that the parties concerned, although related by affinity in the direct line, have never formed part of the same family unit during the minority of either of them, there would be no impediment to marriage between the parties. In such circumstances, the effect of this amendment is, in fact, less rigorous than the amendment which I expect will be moved by the noble Lord, Lord Robertson, as such a marriage could be solemnised before the step-daughter attained the age of 21. Therefore, there is a matter of balance in looking at the amendment in the names of the right reverend Prelates.

After all this perhaps I could cut short my remarks. The Government fully understand the concern which is felt in many parts of the Committee about the effect of the Bill in relation to stepchildren to whom a stepparent had acted in loco parentis, and the desire of some of your Lordships to limit the application of the Bill in such cases. This can be done either by imposing a special age limit—as in the amendment which is to come—or by an amendment of the kind which we are now considering. Whichever approach is taken—if, indeed, either was to commend itself to your Lordships' Committee—I would suggest that amendments along these lines are bound to be something of a blunt instrument for the purpose of distinguishing those cases in which a marriage would be open to objections of the kind that have been voiced during the course of our deliberations.

If accepted by the Committee, the amendment of the right reverend Prelates would place persons who had at any time been a child of the family during minority in much the same position as a child by adoption, inasmuch as a marriage between parent and stepchild would thereafter be prohibited for all time.

The noble Lord, Lord Boston, made a very important point when he said that this could lead to some difficult inquiries having to be pursued as to what period of time a child had been within the family circle. I think that there is possibly a technical defect in the amendment. My noble friend Lord Lauderdale as well as the right reverend Prelate the Bishop of Winchester referred to the wording "a child of his family". I am advised that the phrase is not sufficiently well-defined for the purpose of the Bill, and in that respect the amendment possibly contains a technical defect. But it is not on those grounds that I reach any conclusion. The Government have, of course, endeavoured to take a neutral attitude to this Bill, but your Lordships may wish to consider whether the effect of this amendment is too sweeping in maintaining a permanent bar to marriage between persons whose close personal relationships within a family unit had occurred in the distant past.

Lord Simon of Glaisdale

I hope that your Lordships will think it proper to deal with this amendment, notwithstanding that it has a star against it. It is a perfectly simple amendment to understand and a profoundly important one. Again, there may be a technical defect in the amendment. Probably the age of the child ought to be defined. That might be done by taking it in connection with Amendment No. 2. However, the child of the marriage is already statutorily defined and, for myself, I cannot see that there would be any difficulty in a cross-reference, making it quite plain at a later stage of the Bill what is meant by "child" so far as years are concerned.

The only other remark I wish to make is that I do not believe for a moment that the sort of inquiries which might have to be made are by any means beyond the compass of a family court. They are the sort of problems which we had to elucidate day in and day out. The noble Lord, Lord Soper, said that he had never come across this particular problem, and that I can well believe. For myself, I can only say that forensically I have come across the problem that is highlighted by this amendment, and of all the painful cases that come into a family court, it is probably the most painful of all.

The noble Lord, Lord Boston, was I am sure quite right when he said that the sort of case he postulated would be excluded if this amendment was carried. On the other hand, with respect, the case that was put by the right referend Prelate is perfectly possible and, sad though the circumstances would be in the case that was put by the noble Lord, Lord Boston, the circumstances envisaged by the right reverend Prelate would, I think, be quite excruciating. I can only give my witness that, on balance, it seems to me that the advantage would lie in carrying this amendment.

Lord Torphichen

I thought that this evening we had come to agree to put a safeguard into a Bill which—I shall not say accidentally—by persistence passed its Second Reading. I am not quite sure which is the favoured form of safeguard. Perhaps the noble Lord, Lord Boston, could tell us which of the other amendments he favours, if he does not favour this one; or should we vote for each of them in turn?

Lord Boston of Faversham

Perhaps I can ask for the indulgence of the Committee in order not to speak again but to respond to the invitation which has just been made as to subsequent amendments. I shall be joining in inviting your Lordships to accept Amendment No. 2, and the one which is linked with it.

Lord Mishcon

I intervene not in any way to cast any aspersions upon the right reverend Prelates who are responsible for this amendment and who have spoken in support of it. I recognise—and I say this in all sincerity—the depth of their feeling on this matter. Let no one in this Committee think that this is an amendment upon which one can have the most decided views and regard people who do not have those decided views as being wrong. It is a question of balance. I do not think that I would have intervened but for the remarks that were made by the noble and learned Lord, Lord Simon of Glaisdale, for whom we all have such a deep respect, especially those of us who happen to be engaged in the profession which he has graced.

The noble and learned Lord referred to the fact that inquiries, of the nature that would have to be made under this amendment, would be relatively easy because the Family Division had often had to conduct inquiries of a similar nature. By those very remarks he had envisaged that Amendment No. 3 would be carried and that this Bill would have made it necessary for couples who wish to become married, and who come within the hitherto prohibited degrees but who would be admitted to marriage under this Bill, to apply to a court. I remember having resisted that concept, if I may humbly say so, when this Bill came before the House in the previous Session. I then begged the Committee—or begged the House as it was on Second Reading—rather to throw out this Bill than to put citizens of this country in the position where, in order to obtain permission to marry, they came, as it were, with sullied hands, which had to be cleansed by a court, which would go into the questions of whose fault it was if a divorce had taken place and who got the financial benefit from all this. I must not anticipate a speech on Amendment No. 3.

Lord Simon of Glaisdale

Will the noble Lord allow me? That is not this amendment. That is a later amendment to which he is now speaking. As he is being courteous enough to allow me to intervene in his speech, he will no doubt be aware that under the New Zealand legislation there has to be recourse to the court, and so far as I know it has never caused any difficulty.

Lord Mishcon

I do not have to go to New Zealand to know what the reaction of the ordinary human beings may be. Whatever may be the experience in New Zealand, of which we have no evidence before the Committee, 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 can have no sympathy whatsoever.

That means—and this is why I am going to make a plea in a moment to the right reverend Prelates who have supported this amendment—that it would have to be an inquiry, unless one brings the court into this matter, of the registrar of marriages. I do not know how in any practical form the registrar of marriages, before allowing a marriage to take place, could satisfy himself that a child had, or had not, been a child of the family. In these circumstances the amendment as at present drawn is defective, and whether I would be in favour of it or not is irrelevant to the Committee, but I wonder whether the right reverend Prelates would consider withdrawing the amendment because of that particular defect, because otherwise they would be forcing this matter before the courts.

I raise one other point in my plea to the right reverend Prelates to withdraw this amendment and come back, if they see fit, with further thoughts—I am not trying to drive the amendment out of consideration of this Bill altogether—at Report stage or Third Reading. All their speeches were directed to the situation where the mother of the stepdaughter was still alive. I do not think they had in their minds—they will correct me if I am wrong—prohibiting a stepfather from marrying the stepdaughter long after the mother of that stepdaughter had died. When one is thinking in terms of a man who might be aged 60 at that stage with a stepdaughter of 40, I cannot believe that the right reverend Prelates had such a prohibition in mind.

Under this amendment, if the child had ever been in the position of being a child of the family, this marriage would be prohibited under their amendment for ever and aye and in spite of the death of the mother. I wonder whether they would not wish to go away and consider whether their amendment, within the spirit in which they have spoken tonight, should not be limited at least to the situation where the parents of the home to which they referred were both of them still alive. think they had in mind a case of divorce, or whatever.

It is because of the defects in this amendment—not technical ones but the real ones to which I ventured to draw the Committee's attention—that I wonder whether, having heard the speeches tonight and rather than having a vote which will be taken on a mixed appreciation of the principle of this amendment, and an understanding, too, of the defects to which I have tried to draw attention, it would not be better if this amendment were withdrawn, and after further consideration of the points I and other noble Lords have ventured to make this might be brought forward again without having the defects to which reference has been made.

Lord de Clifford

Before we go any further, I should like to support the right reverend Prelate. I hope he will press this amendment. This is always happening in your Lordships' House. People are urged to withdraw an amendment and recast it, and when it is recast they are told that they had better withdraw it again because it is still not right. I would invite noble Lords to put this amendment into the Bill, whether the noble Lord likes it or not, and let him recast it the way he thinks it should be. This is happening all the time in this House. I trust that the right reverend Prelate will press it, and I shall be with him all the way.

Lord Torphichen

The noble Lord, Lord Mishcon, made the case identically for including in this Bill adopted children. Adopted children are not included in this Bill, and the case that the noble Lord made for. stepchildren is in that case no different, by his reasoning, from that of an adopted child.

Lord Boston of Faversham

It might be of help to deal with this point straight away. So far as adopted children are concerned, as indeed my noble friend Lady Wootton made clear on previous occasions, they are in precisely the same position—and always would be whether this Bill was an Act or not—as natural children. There could never in any circumstances be any question of marriage in those cases.

Lord Torphichen

I am sorry to start again—

Several noble Lords: No!

The Deputy Chairman of Committees (Baroness White)

I think that the Question should now be put.

8.18 p. m.

On Question, Whether the said amendment (No.1) shall be agreed to?

Their Lordships divided: Contents, 28: Not-Contents 50.

Abinger, L. Milverton, L.
Avon, E. Newall, L.
Carlisle, Bp. Norwich, Bp.
de Clifford, L. Orkney, E.
Denham, L. Robertson of Oakridge, L.
Falkland, V. Salisbury, M.
Gisborough, L. Saltoun, Ly.
Gowrie, E. Simon of Glaisdale, L.
Greenway, L. Southwell, Bp. [Teller.]
Halsbury, E. [Teller.] Spens, L.
Hylton-Foster, B. Swansea, L.
Inglewood, L. Torphichen, L.
Lauderdale, E. Trefgarne, L.
Lyell, L. Winchester, Bp.
Airedale, L. Gainford, L.
Auckland, L. Gifford, L.
Blease, L. Goronwy-Roberts, L.
Boston of Faversham, L. Greenwood of Rossendale, L.
Brockway, L. Hale, L.
Cork and Orrery, E. Hampton, L.
Craigavon, V. Hanworth, V.
David, B. [Teller.] Hatch of Lusby, L.
Davies of Leek, L. Houghton of Sowerby, L.
Dowding, L. Jacques, L.
Drumalbyn, L. Jeger, B. [Teller.]
Elwyn-Jones, L. Kilmarnock, L.
Kimberley, E. Ritchie-Calder, L.
Kirkhill, L. Robbins, L.
Lee of Newton, L. Rugby, L.
Listowel, E. Soper, L.
Llewelyn-Davies of Hastoe, B. Stamp, L.
Lovell-Davis, L. Stewart of Alvechurch, B.
McGregor of Durris, L. Stewart of Fulham, L.
Monson, L. Stone, L.
Mountevans, L. Taylor of Mansfield, L.
Northfield, L. Tweeddale, M.
Oram, L. Underhill, L.
Pitt of Hampstead, L. Wells-Pestell, L.
Rhodes, L. White, B.

Resolved in the negative, and amendment disagreed to accordingly.

8.25 p.m.

Lord Robertson of Oakridge moved Amendment No. 2:

Page 1, line 8, at end insert— ("Provided that at the date of the marriage both parties have attained the age of 21 years.").

The noble Lord said: I, too, am sorry that the noble Baroness, Lady Wootton of Abinger, is not able to be here this evening, and I wish her a speedy recovery. I am grateful to the noble Lord, Lord Boston of Faversham, for the favourable words he used about my amendment, but I am conscious of the need to explain it fully to the Committee, and with leave, I shall speak at the same time to Amendment No. 6, which is consequential.

The aim of the amendment is primarily that which the noble Lord, Lord Belstead, mentioned on Second Reading, namely to go some way to meet the concern which has been widely expressed in relation to the case of step-parents and stepchildren. I believe, however, that that concern applies to marriages within the other degrees of affinity, although perhaps to a lesser extent. If you believe, as I do, that the passing of the Bill would introduce potential conflicts of interest into family life, then there is a need to provide safeguards. In this respect, it has been suggested that the courts, social workers or marriage guidance counsellors might be involved, but as we have already seen tonight and may perhaps see later, there are difficulties which need to be overcome if that is to be the answer.

It was the noble Lord, Lord Mishcon, who said at Committee stage in the last Parliament, on 15th March 1979—and repeated his view today—that, if one wanted to put protection in the Bill, it should be on the basis of an age limit of 21. It is because I believe that that protection is needed that I am proposing that no marriage within the rules of affinity should take place unless both parties have reached the age of 21. It will be reasonably questioned why the age should be 21 and not 18. My answer is that the reason is most clearly seen in the case where a person marries his or her stepchild, especially when the child has grown up as a child of the family and where the step-parent has acted as parent.

We must do what we can to minimise the circumstances where there can be abuse of filial loyalty, trust and obedience. To raise the limit from 18 to 21 would give that stepchild greater scope for an independent and maturer choice, having perhaps cast around rather more widely than might otherwise have been the case. Furthermore, it would give a longer interval between the time when the two parties enjoyed a parent-child relationship and the time when they enter a relationship of an entirely different kind. I therefore beg to move.

Lord Boston of Faversham

I am pleased and relieved that at this stage in our proceedings my noble friend and I are able to adopt a conciliatory approach, even though—and I would not be doing my duty if I did not add this—with a certain amount of reluctance. I am sure the noble Lord, Lord Robertson, will not mind my saying that (with, I hope, an abundance of grace, if I can muster that) because it will make his victory all the sweeter if he knows that it has not been a walk-over. As he will know, and as we have heard on previous occasions, there are in fact quite substantial arguments against the course which is proposed here, and which I support. There was the report of the Latey Committee 13 years ago into the age of majority. That committee made many recommendations reducing the age of majority, and for most purposes we have gradually applied full rights to people from the age of 18. After all, Parliament reduced the voting age from 21 to 18 not so very long ago, though I must confess that as a member of Mr. Speaker's Conference on Electoral Law I was actually against that proposal when it was originally put forward, and spoke against it when it came up for debate in another place. So I can understand those who argue that now we should be consistent and stick to the age of 18 for all possible purposes.

However, in the context of this Bill anxieties have been expressed by a number of noble Lords and right reverend Prelates. The noble Lord, Lord Robertson of Oakridge, himself has spoken of his own anxieties in putting forward the amendment. This is a matter on which there are deep feelings among many Members of your Lordships' Committee and therefore in all the circumstances my noble friend Lady Wootton of Abinger and I feel that it would be right to join the noble Lord, Lord Robertson, in commending his amendment to the Committee.

Lord Belstead

I wonder whether it would be convenient to the Committee if at this stage I beliefly give the Government's point of view on this matter. It occurs to me that in, for instance, the case of a stepdaughter who has scarcely previously known her stepfather and who has never been a member of his household, it might be argued that it would be inconsistent with the spirit of the Bill that a marriage between such a stepdaughter and her stepfather, who might, for instance, be a widower, should be forbidden, even for the three years until the girl reaches 21 years of age. However, I suggest that it must be accepted that a statute very rarely accommodates every single case that might conceivably arise. Moreover, the concern which has been expressed for the need to provide relief from the absolute bar which the Bill seeks to remove has generally focused on couples who are very much older than 21. Despite the possible general objection which the noble Lord, Lord Boston of Faversham, mentioned, concerning the recommendations of the Latey Committee, the proposal regarding the age of 21 might go a long way to meeting the misgivings about the Bill felt by those of your Lordships who have expressed them.

If, on balance, the Committee is disposed to accept the amendments, I should certainly not wish to oppose them. I think that we may need to consider the drafting. I doubt whether the second amendment to which the noble Lord, Lord Robertson, spoke, which repeals a number of provisions but preserves them for under-21 marriages, is the best way of going about the matter. However, if the Committee decide to accept the amendments, perhaps I may consult the noble Lord, as well as the noble Baroness, when she has recovered, with a view to reconsidering the drafting, if necessary, at the Report stage.

On Question, amendment agreed to.

8.34 p.m.

Lady Saltoun moved Amendment No. 3:

Page 1, line 8, at end insert— ("Provided that both parties to the marriage have attained the age of twenty-one years and the Court has given its consent to the solemnization of the marriage. ( ) In determining whether to give such consent the Court shall have regard to all the circumstances of the case, including the following matters, that is to say:

  1. (a) the degree of relationship between the parties to the proposed marriage;
  2. (b) the extent, if any, to which the dissolution of any previous marriage of either of those parties was caused by the conduct of the other;
  3. (c) the value to either of those parties of any financial benefit which that party will have the chance of acquiring if the proposed marriage takes place;
  4. (d) the interests of any children.
( ) Nothing in the preceding provisions shall be taken as affecting section 2 of the Marriage Act 1949 (marriage of persons under sixteen void) or section 3 thereof (consents required to the marriage of certain other unions). ( ) For the purposes of the section, "the Court" means the High Court or the county court of the district in which any applicant resides and rules of court may be made for enabling applications under this section—
  1. (a) if made to the High Court, to be heard in chambers;
  2. (b) if made to the county court, to be heard and determined by the registrar subject to an appeal to the judge;
( ) Nothing in this section shall dispense with the necessity of obtaining the consent of the High Court to the marriage of a ward of court.").

The noble Lady said: First, I should like to join with other members of your Lordships' Committee in saying how very sorry I am that the noble Baroness, Lady Wootton of Abinger, is ill, and I hope that she will be quite better very soon. I propose this amendment with great diffidence, as I have no legal qualifications whatsoever. The amendment has, however, been vetted by distinguished members of the legal profession who were of the opinion that it was workable.

Many of us are very unhappy at the prospect of the Bill becoming law as it stands, because we feel that to remove all prohibition against marriages between persons related by affinity, and especially between stepparents and stepchildren and parents-in-law and children-in-law, is a very dangerous step and constitutes a very real threat to the sanctity of family life. We do not feel that to permit such marriages with the only proviso that both parties must be over 21 years of age is sufficient safeguard from the family point of view. It is because we feel very strongly about this aspect of the Bill and believe it to be wrong that we have put down this amendment. I should like to apologise in her absence to the noble Baroness, Lady Wootton of Abinger, (whose Bill this is) and her supporters for putting down the amendment so late. This was not intentional. The drafting and legal vetting took much longer than I had hoped it would, and much of it was done on bad telephone lines from the North of Scotland.

I want to emphasise that although a very long amendment to a very short Bill, it is in no way intended to be a wrecking amendment, but rather a constructive one, since it will enable hard cases to be dealt with by the courts, instead of by a personal Bill, as was necessary in the case of Mr. Berry and Mrs. Ward last year. I am advised that the expense would be very much less than the cost of a personal Bill. I am also advised that legal aid would be available, where necessary, whereas it is not for personal Bills. I hope that that removes the objection to the present system—that we have one law for the rich and another for the poor.

At the same time a hurdle remains, and it is quite a high fence to clear, although less formidable than the Becher's Brook of a personal Bill. I believe that those few hard cases—25 in 15 years, according to Home Office statistics quoted by the noble Lord, Lord Belstead, during Second Reading—for which we are legislating would be quite willing to undergo the scrutiny of their private affairs which this amendment involves if they really wish to marry. It is not so long ago that people wanting divorces had to submit to very seaching public scrutiny of their conduct, unless they waited three years to get a divorce for desertion; but they endured that experience if they wanted the divorce badly enough.

The scrutiny proposed in the amendment would be private. It is based on the law regarding such cases in New Zealand, but it gives more specific guidelines to the court than does the New Zealand Act. It resembles quite closely the amendment moved by the right reverend Prelate the Bishop of London in 1979, but there are certain differences. The amendment of the right reverend Prelate concerned only persons under the age of 21 years. This amendment applies to all cases over the age of 21. For those under 21 the law would remain as it is at present. Furthermore, the right reverend Prelate's amendment allowed these cases to be heard by courts of summary jurisdiction. This amendment allows them to be heard by the High Court or county courts only.

Rather late in the day may I seek the agreement of the Committee to speak also to Amendment No. 5, which is consequential on this amendment. I beg to move.

The Deputy Chairman of Committees (Lord Greenwood of Rossendale)

I should tell your Lordships' Committee that if this amendment is agreed to, I shall not be able to call Amendment No. 4.

8.39 p.m.

Viscount Hanworth

I have some sympathy with the objects of the amendment, but if one gets down to the practicalities I think it will be seen that it would be impossible to apply. I say that for two reasons. The court is being asked to open up a whole matrimonial case, or potential matrimonial case, whereas long ago we decided that in divorce proceedings that course did not lead in any useful direction. There might also be the problem that any matter before the court might be opposed by people with certain motives. In particular, take the financial provisions, which I think are in paragraph (c) of this amendment. What on earth would the court think about them? In fact, what is this provision in the amendment meant to imply? If there was a financial advantage, does the court turn it down? No, it simply will not do. I go back again to saying that if there are two people of the age of 21 who have decided, rightly or wrongly, to ask for marriage, then in today's society we cannot presume to decide what is good for them. We do not do that in other areas—and yet this amendment attempts to do just that.

From the court's point of view I would say that it is impossible. I do not mind what any noble Lord who is a lawyer says about this, because the thing is so openly drafted that they could not possibly conclude, unless they made up their own rules as to how to do it, what they should decide. No, this amendment is simply not on, despite the fact that I have sympathy with what it is trying to achieve.

Lord Boston of Faversham

As has been indicated, this is indeed an important amendment, and I want to say at the outset—and I am sure my noble friend Lady Wootton, too, would wish me to say this—that it has been put down with the best possible motives and, if I may say so, moved in that spirit by the noble Lady, Lady Saltoun. Perhaps I may also say that I am sure that the Committee will be very much obliged—certainly I am—for what she has had to say about the tabling of the amendment and, in that connection, the difficulties about living in distant parts. As she has indicated, this amendment is somewhat similar to—although, as she says, not entirely the same as—one we debated two years ago, when an identical Bill was before your Lordships. A number of noble Lords raised objections to it then on practical grounds, including the noble Viscount, Lord Colville of Culross. I did, too, and I hope your Lordships will forgive me if I refer to some of those objections again tonight, and take a few moments to do so. Some of them, indeed, have been mentioned by the noble Viscount, Lord Hanworth, in his speech to the Committee.

Clearly, the basic principle involved here is that a couple related by reason of affinity only should be allowed to marry only if consent has been given by the court. If your Lordships pass this amendment, we should be requiring judges to take on what I would submit to be a very difficult role, different from any that they have at present and, I believe, a most unsuitable one for them. An entirely new system of jurisprudence, despite what the Family Division has been used to dealing with up until now, would have to be built up to cover it. Of course, the courts frequently have to grapple with difficult decisions—we know that—but the parties appearing before them take on an adversarial role. The courts take their decisions on the basis of the evidence adduced before them, and that evidence is in due course tested by the opposing side. We really do need to ask ourselves what sort of evidence should be brought before the court in a case of this kind—an unfamiliar sort of case— and no guidance at all about that evidence is proposed in the amendment.

We also need to know, in my submission, who would be the opposing sides and who would be testing the evidence. Certainly it would be quite wrong to involve the judge himself in any adversarial role, in any testing role of this kind; that is clear. In some cases, as we know, there is a requirement on the courts to exercise a quasi-parental discretion, and we have the example in some types of case involving children—cases where parental consent to marriage is refused. But in those cases there are the guiding criteria of the interests of the young persons themselves. The criteria proposed in this amendment are very different, and are more complex ones. All of them seem to involve some difficulties, and I feel there is really no alternative to looking at each of them in turn.

The amendment mentions the degree of relationship between the parties, but in mentioning that there is no attempt to define the closeness of the relationship which ought to cause the court to withhold consent. In fact, the court would have to consider the very question which Parliament itself might be thought to have settled in passing this Bill, if this Bill is eventually passed; that is to say, whether the degree of affinity in relation to the specific couple whose case is before the court should or should not be a bar to their marriage.

Again, there is the question of the extent, if any, to which either party has contributed to the breakdown of a previous marriage—a point which I think was mentioned by the noble Viscount, Lord Hanworth, in his speech. This really would go against the trend of recent legislation on divorce, ending the concept of the matrimonial offence and, indeed, of actions for enticement as well. One of the main aims of those reforms in family law was, I believe, to free the courts of the task of apportioning blame, which they had to do previously, with all that that involved—the battles between the parties, the anger generated and the effect all that had on the children. The court would have to decide about the cause of breakdown—there is no escape from that—and the amount of blame. In a marriage which might have ended some years before, it would have to perform that task. A third party might have been involved. Evidence would have to be called, with the need for representation and, perhaps, additional witnesses as well.

We notice, too, that the amendment does not require the court to refuse consent if there has been any contribution by either party to the breakdown. It does not give any guidance, in other words, as to how much or what sort of blame ought to be sufficient to cause it to withhold consent. So after the inquiry which the court would have to carry out into the question of blame, with perhaps old wounds being reopened in court and animosity being brought out between the parties, on the one hand, and the former partners, on the other, the court would nevertheless, in some cases, go ahead and grant consent. What a way that would be to begin a marriage! The animosity would not be easy to dispel afterwards, with all that that might mean for family unity and for family love.

Then there is the financial question, which has also been referred to by the noble Viscount, Lord Hanworth —any financial benefits which might arise from the marriage itself. Here, to add to what the noble Viscount himself said, there could well be the need for a wide-ranging inquiry into, for example, the terms of any existing financial arrangements. Those can be very time-consuming, as those of us know who have been in any way involved in practice in the family courts, in divorce cases, with the need for repeated adjournments to produce, for example, successive affidavits about financial matters from the parties, perhaps involving documentary evidence from employers and others. In certain circumstances aspects of the inquiry could well grind to a halt completely because, for example, it would be impossible to examine the chances of a party benefiting under the wills of people not yet dead. There are many practical difficulties here; and there are no powers to carry out these investigations. The possible benefits might be changed by the testator; and the parties might not know of any prospects anyway.

No less important is what weight, after it had carried out those inquiries, the court ought to give to those matters. Why should those considerations, I would ask your Lordships to consider, outweigh other objections? Indeed, why should these particular couples be subjected to this sort of scrutiny anyway?

Then there is the question of any children of either party. It is true that the courts sometimes carry out a similar exercise on custody and guardianship cases. But those involve quite different considerations, for the outcome of the court's decision whether a couple may marry where neither is necessarily a parent of the children involved, is different. Then there is the general wording at the beginning of the amendment that: the court shall have regard to all the circumstances of the case". That makes it clear that, apart from the specific points mentioned in the amendment, the discretion of the court would he at large. What is the court to make of the frankly expressed intention of the couple to the court to live together if consent is not granted? Is the court to commend them for their frankness, loyalty and devotion; or is it to condemn them for what the court may choose to regard as anti-social behaviour?

In my submission, it is clear that applications for consent are likely to involve delay and a difficult and complicated procedure and the likelihood that the parties would need to have legal representation and, as the noble Lady, Lady Saltoun, mentioned, there may be eligibility for legal aid. That also—and I think in this House that we have to face it—would involve costs to public funds. There is the possibility that third parties would become involved in some cases, also needing representation and costs there and the need to call witnesses. All involves expense. There is also the point that the noble and learned Lord the Lord Chancellor made in his speech last May on Second Reading of the Berry and Ward Bill, the difficulty of leaving matters of this kind to the judiciary.

I come back to the point that I made on Second Reading in connection with the matter we are now considering. The more I consider this matter of inquiry by the court and the need to seek consent, the more convinced I become that the question of marriage between a couple related by reason of affinity only really is a matter for them and for the advisers that they themselves choose to consult: their family, their religious advisers and others—something which I am sure very many couples, if not the vast majority of couples, do before they marry, anyway, and without the sort of complications that we are discussing in this connection tonight. There will still be the moral, social, family and religious restrainsts on those couples in cases where there is any doubt about the desirability or suitability of a particular proposed union.

I feel that it is immensely valuable for this whole matter to be aired. Therefore, I feel that the Committee owe a debt to the noble Lady, Lady Saltoun, and the others who put forward this amendment. But I hope, in view of the practical problems involved, and perhaps also in view of the amendment on the age of 21 that we recently passed, that it will prove possible for this amendment to be withdrawn. Perhaps it is only fair to the Committee to indicate that if it were to be pressed, I would need to invite your Lordships to resist it.

8.55 p.m.

The Earl of Lauderdale

Lord Boston's beguiling persuasiveness is always difficult to resist but I must do the best I can, not being a lawyer. I take one point that he made and the noble Viscount, Lord Hanworth, made, which was that if people are living together anyway, why bother about denying them the status of marriage? That, I think, is not an unfair representation of what both noble Lords said. It is because the status of marriage is one ultimately conferred by society that it is safeguarded. When the noble Lord, Lord Boston, says that in the end this is a decision for the couple concerned, it is not a decision for the couple concerned; it is a decision ultimately for society, for the couple within society. If the couple propose to continue to live together without the approbation of society, that is their affair. But society has over many generations in many countries and with many religions built up a system of approvals and disapprovals, and that is the context in which we look at this matter.

The noble Lord, Lord Boston, said that this raises many practical difficulties. I must apologise for not having drawn attention to this on Second Reading; but I thought I had said enough on this Bill in the last Parliament and in the last Session of this one. The Bill bristles with difficulties; it is spiky with difficulties. These amendments are endeavours seriously to meet these difficulties. The noble Lord, Lord Boston, said that this will involve a new system of jurisprudence. I thought it was most instructive when we heard from my noble friend Lord Belstead on the last amendment the list of countries, European and in the white Commonwealth, which, in fact, still maintain a very strong law in regard to affinity. To say that a new principle of jurisprudence will be involved surely flies in the face of the fact that New Zealand law and Australian law is very similar to our own. But these provisions that are incorporated in this amendment are drawn primarily from New Zealand experience. A notable leader in The Times some while ago said: There should be a hurdle—it should be a high hurdle". I believe that once we are confronted with the principle of this Bill having been accepted at Second Reading, our concern is to erect not only a hurdle but a high hurdle. It was well put by a New Zealand judge who said: The court's discretion should be exercised with care. I do not think the court should go so far as to exercise it only with reluctance because the Legislature in passing the statute obviously contemplated the consent of the court as being proper in certain circumstances". But the care with which each case should be examined may best be indicated by remembering that the discretion now given is one enabling the court to relax in appropriate cases what has, until now, been an absolute prohibition. That is what we are talking about. The best protection we can now provide when an absolute prohibition of noble lineage is being set aside.

That, I think, is a simple case of writing in these guidelines. They are modelled on the experience in New Zealand where, so far from such provisions having proved unworkable, they have worked tolerably well. The noble Lord, Lord Boston, said that the degree of relationship should be defined. No doubt it should; but I am not a lawyer and, in putting down this amendment, we were not trying to tie the hands of the court in the exercise of discretion which, at the end of the day, is the purpose of the Bill. The object of this Bill is to confer a very wide discretion on all sorts of people. I believe that to define the degree of relationship would be to limit the court's discretion.

Then there is the point about a possible involvement in a previous marriage breakdown. Here is a guideline taken more or less word for word, or, anyway, taken in principle from a New Zealand Marriage Act of 1955. It may be said that it is retrograde to look at what went wrong in a previous marriage. It is nothing like as retrograde as this Bill. This Bill is back to pre-paleolithic times. This Bill is opening wide all sorts of gates to opportunism and chicanery which society over centuries and in many countries and religions has found must be safeguarded against. If we are accused of going backwards, this is because this Bill goes backwards. I sympathise with the position that it is sad to be invited or invite the courts to delve into the relative causes as between two partners or indeed a third interfering factor in a marriage breakdown. The whole concept is most unpleasant. It is like the concept that merely living together, because it is agreeable to the two people concerned, should have conferred upon it the status, standing, glory and sanctity of marriage.

This guideline signals that if one party has been involved in a marriage breakup that that person cannot except much sympathy from the court. And how right! The question of financial benefit is fairly obvious; and the position of the children is more obvious still. These are the two conditions suggested by the New Zealand experience. Apparently, very few cases have arisen in New Zealand. I am told that in fact there have been three. Two of them cleared the court hurdle quite easily. The third one was a proposed marriage between a stepfather and a stepdaughter—the situation that we are talking about here.

I must not be drawn aside, but I was tempted to refer to a noble Lord in this House who always talks about his grandmother's deceased sister, or something. We do not want to spend our lives thinking of hypothetical cases. The real case that is worrying many of us here is the stepfather,/stepdaughter possibility. As I say the third case that came up before the New Zealand courts, which was rejected, was a proposed marriage between stepfather and stepdaughter. The reason it was rejected was because it was altogether repugnant. We are talking here about matters that to the generality of society are altogether repugnant. I hope that the Committee will feel fit to support the noble Lady, Lady Saltoun, myself and others in carrying this amendment to a Division.

9.2 p.m.

Lord Houghton of Sowerby

I wonder whether the Committee can bear to listen to one or two impudent remarks. One of the drawbacks to being in the House of Lords is that we go on talking about some things time and time again, and nothing ever happens. We have discussed this subject before. Very soon there will be a kind of collection of hardy annuals that will come forward each session to be debated afresh, passed in your Lordships' House and seen to be dying a lingering death along the corridor.

I have a Bill to add to the list—my pet animals Bill. We will also have the Bill of Rights and this one. Some noble Lords will live to debate this Bill 20 years from now because on the moral laws of England reforms amount to legislation by lottery. It is the bran-tub along the corridor that decides whether we reform the moral laws of England. It is just as much a lottery as the bran tub at a garden party on the vicar's lawn. This is how we do our business.

There was a time when it was rather the other way round. The noble Earl, Lord Lauderdale, is expecting me to refer to the marriage of a deceased wife's sister. It was the other place that passed it 11 times and sent it here only to get it rejected. The House of Lords must have talked about it until they were sick of it. The Bishops' Bench was full for that occasion—and not on many others—in order to turn it down.

Eventually Mr. Asquith said: "This scandal must come to an end". The Government took the Bill over; the Bishops walked out and the secular Lords passed it. This is the history of the reform. If one reads the debates on the subject of the marriage of the deceased wife's sister, one will read of all the horrors, the dreadful calamities, that were going to befall society if a man was allowed to marry his deceased wife's sister.

However, this is an awful amendment. Who wants to get married on these terms? Goodness me! Better just go and live together and have done with it than put up with this nonsense. Who wants to parade their private and family affairs in this way before a court in order to go into Holy wedlock? It is an insult to people aged over 21 who are fully able to decide for themselves and probably better able to decide for themselves than all the younger people aged 18 who are now able to get married whether or not their parents consent.

This is an age which we have now accepted in the Bill which is five years on from the age of consent and three years on from the age to enter into a contract and three years on from the age to get married—three years on to do anything in adult life whatsoever and have the full rights of citizenship. We have said to these people covered by this Bill: "We are going to put a handicap on you of three years' additional wisdom and we are going to assume that you will be three years' wiser than the other people who go into marriage tomorrow and make a mess of it within three years".

Can we not live in the world of today? This amendment can be put forward only by old men and women. I think we should cut the cackle, reject the amendment, pass the Bill and get on with it.

The Lord Bishop of Norwich

It would be a brave man who sought to follow that magnificent and rumbustious speech. I shall seek to be as brave as I may. May I refer to something which the noble Lord, Lord Boston, said when he appeared to suggest that it was too difficult for the courts to tackle paragraphs (a), (b), (c) and (d) of Amendment No. 3. Having listened to his magnificent, fluent and mellifluous speech as a lawyer clearly nothing—even such a small matter as that—will be passed into the law of our land and for the courts to deal with if the noble Lord can show how difficult this is to do. He appeared to think the court could not do it, but he used the words "Family Division". Surely the wealth of case law in the Family Division means that sui generis this would be an easy matter to deal with and not a difficult one. I do not think, therefore, that the speech he made stands up to the "difficulty" question.

In addition it seems to me, on the family unity and love point that he made, that it is for the express purpose of seeking to contain thousands of families within unity and love that, to quote The Timer, as quoted by the noble Earl, Lord Lauderdale, calls for a high hurdle. This is not a high hurdle: it is only half a high hurdle. It is a very moderate amendment. But the two fatal flaws in the argument of the noble and learned Lord are, first, that this whole Bill is itself an enormous change in the social mores of our country. The affinity situation has been so for hundreds of years and it has helped to hold together the whole de-sexualised larger family circle, and the dagger is thrust at that if this law goes through unamended.

The second fatal flaw in the argument is that there are hundreds of people, as it were, waiting to take advantage of it. But we know from the statistics produced by the Home Office that there is a tiny handful of people for whom this enormous change in the social mores of our country would provide help. Therefore this very reasoned, helpful and, I think, kindly amendment, would help people to realise that there is a moderate hurdle but that there are things to help them; there is even the possibility of legal aid. I have approached this whole Bill with a heavy heart. I believe there has not yet been the chance of its being discussed in full Church circles, although of course Canon B.21 of Canonical Law operates right against it and it would therefore automatically fall to the ground because of that. Therefore a major Church and State confrontation must take place if this Bill is passed unamended. At least this particular amendment would be a modest attempt to contain the really big changes which this small Bill would in fact bring.

9.11 p.m.

The Earl of Halsbury

I cannot remember whether this Bill is before us now for the third or fourth time round, but I think it is quite possible that it will not get on to the Statute Book this year and it may be before us for a fourth or fifth time round. So I would not want anyone on that occasion to suppose that I had been a party to letting it go through on the nod. The noble Lord, Lord Houghton of Sowerby, whose characteristic vigour always enchants your Lordships when he addresses us in bellicose mood, has drawn attention to the fact that a certain very famous Bill took eleven times round before it got through this House. I have been consistently against this Bill from the start, and the voting on it—what the noble Lord calls "the bran tub" depends very much on what day of the week it comes forward, what time of day it comes forward and what was the previous Business before the House. That is what controls the composition and cross-section of those who debate it; so it may be that it will come forward for a fifth, sixth or seventh time.

I would encourage my noble friend Lady Saltoun not to be intimidated by any wealth of legal opinion that may be brought against her. When people go to court they go there as plaintiff and defendant and each has been advised that the case was worth fighting. They emerge as winner and loser, and on that basis I would say that the chance of any particular piece of legal advice being right was not better than evens. Therefore, since the noble Lady, Lady Saltoun, has been advised legally on this, I would advise her to stand by it and, if she chooses to divide the Committee, I will be glad to follow her into the Division Lobby.

Lord Denham

I wonder whether I may intervene very briefly here. I have got myself an extremely unpopular name over various Bills in trying to push business through, and I assure your Lordships that I have absolutely no axe to grind on this occasion because the Government are neutral. However, I rather wonder—we having spent 39 minutes on this amendment—whether a lot more talk will change a lot of minds, and whether perhaps your Lordships have almost made up your minds on this point and might fairly soon come to a Division. I have no interest, as I say, in the matter because this is a Private Member's Bill and the Government are neutral; but I just put that forward for the consideration of your Lordships.

Viscount Hanworth

I never speak for more than about one and a half minutes, and what I should like to say in a second speech will take just that length of time. We must recognise that this amendment, as it stands—and I said that I had some sympathy with it—would be a lawyers' paradise. We would not know which way it was going to go, until there had been a great deal of case law; and, of course, any case might be opposed by a number of interested parties. Finally, it is no good saying that the present situation has been there for a number of years. The trouble with Britain today is that we have not made the gradual changes when they were required. For those reasons, I think that we should vote against the amendment. I hope that that satisfies the noble Lord, because I have taken only one and a half minutes.

9.15 p.m.

On Question, Whether the said Amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 21; Not-Contents, 40.

Avon, E. Orkney, E.
de Clifford, L. Salisbury, M.
Drumalbyn, L. Saltoun, Ly. [Teller.]
Falkland, V. Southwell, Bp.
Gainford, L. Spens, L.
Greenway, L. Stamp, L.
Halsbury, E. Strathclyde, L.
Hylton-Foster, B. Swansea, L.
Lauderdale, E. [Teller.] Torphichen, L.
Newall, L. Trefgarne, L.
Norwich, Bp.
Airedale, L. Kilmarnock, L.
Auckland, L. Kirkhill, L.
Beaumont of Whitley, L. Listowel, E.
Blease, L. Llewelyn-Davies of Hastoe, B.
Boston of Faversham, L. Lovell-Davis, L.
Brockway, L. McGregor of Durris, L.
Craigavon, V. Monson, L.
David, B. [Teller.] Northfield, L.
Davies of Leek, L. Oram, L.
Elwyn-Jones, L. Peart, L.
Gifford, L. Perry of Walton, L.
Goronwy-Roberts, L. Ritchie-Calder, L.
Greenwood of Rossendale, L. Robbins, L.
Hale, L. Stewart of Alvechurch, B.
Hampton, L. Stewart of Fulham, L.
Hanworth, V. Tweeddale, M.
Hatch of Lusby, L. Underhill, L.
Houghton of Sowerby, L. Wells-Pestell, L.
Jacques, L. Winchester, Bp.
Jeger, B. [Teller.] Winstanley, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.23 p.m.

Viscount Ingleby moved Amendment No. 4:

Page 1, line 8, at end insert— ("Provided that the High Court has given its consent to the solemnization of the marriage.").

The noble Viscount said: I beg to move this amendment. In doing so, I should like to take this opportunity to pay tribute to the indomitable spirit of the noble Baroness, Lady Wootton of Abinger, whom I so much admire. I should also like to congratulate her, because I think that she has here tonight a very able deputy.

There is a presumption that the kind of marriages contemplated by the Bill are unseemly and should be prohibited for that reason. However, I accept that there are perfectly genuine hard cases. Although I had a lot of sympathy for the amendments which have been pressed to a Division I did not in fact support them. I believe that this is such a difficult field that one simply cannot lay down any ground rules other than the age limit of 21 to which we agreed earlier.

I feel that the best thing to do is to maintain a general prohibition against such marriages but to give to the court absolute discretion to grant permission where they see fit. I do not think that we can lay down rules in this sector. It would be wrong to abolish the whole thing lock, stock and barrel. Therefore my amendment proposes to give to the court absolute discretion as to whether or not to allow a marriage. I beg to move.

Lord Boston of Faversham

First, I should like to thank the noble Viscount, Lord Ingleby, very much indeed for his kind words and also to say that it is perfectly clear—and especially from what he has said—that this amendment was tabled with the best of motives and with the best of intentions. I think I should simply add this. Most of what I said on the last amendment on the principle of consent by the court and the applications to the court I should have said on this amendment, so I do not think there is any need to detain your Lordships so far as that is concerned.

Perhaps I should just add that the difficulty as I see it about this amendment, compared with the last amendment, is that it does not even contain the—admittedly to me—unacceptable guidelines of the last amendment, and therefore I think that we—and particularly the courts—would be in even greater difficulty in addressing our minds to these matters. Perhaps in view of the debate which has taken place the noble Viscount might feel able to withdraw this amendment, but if not it would be only fair to indicate to your Lordships that I would need to invite your Lordships to resist it.

Viscount Hanworth

I will add one brief note. Do people realise the cost of applying to the High Court, particularly if a case is opposed?

Viscount Ingleby

I should like to withdraw the amendment at this stage, but to reserve the right, if necessary, to bring it up at a later stage.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

I must tell your Lordships that if Amendment No. 5 is agreed to I shall not be able to call Amendment No. 6.

[Amendment No. 5 not moved.]

Lord Robertson of Oakridge moved Amendment No. 6:

Page 1, line 10, at end insert ("save in their application to a marriage not falling within the proviso to subsection (1) above.").

The noble Lord said: This is consequential on Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

The Lord Bishop of Winchester moved Amendment No. 7:

After Clause 1, insert the following new Clause:

("Saving for Clergy . No clergyman of the Church of England or of the Church in Wales shall be compelled (a) to solemnize a marriage contracted between a person and any of that person's relations by affinity; or (b) to permit the marriage of such persons to be solemnized in the church or chapel of which he is the minister.").

The right reverend Prelate said: As your Lordships well know, the law of England and Wales requires the clergy of the Church of England to solemnise marriages for any of their parishioners who request it and on whom there is no bar to marriage. That is the Marriage Act of 1949. This obligation is not imposed upon other religious denominations. As I have already stated, on the authority of the executive director of the Board of Deputies of British Jews, the Jewish community is distressed by this Bill, but Jewish rabbis will not be compelled to marry people related by affinity because citizens of this country have no inherent right to be married according to the usage of the Jewish faith. Roman Catholics have no inherent right to be married according to the usage of their Church but any citizen does have the inherent right to be married according to the ceremonies of the Church of England, with the one exception which was allowed in the Matrimonial Causes Act 1965. It is on that concession that the wording of my amendment is based. It does not prevent such marriages taking place in the church if the parish priest is willing to perform the ceremony or to allow another priest to do so in his church, but a priest who in conscience considers that such marriages are contrary to scripture or that they offend against natural justice and social health, will not be acting against the law if he refuses to marry, or to allow his church to be used for a marriage of his parishioners in such circumstances.

Because the clergy of the Church in Wales are in the same legal position as those of the Church of England, the Church in Wales has requested that the amendment be extended to them, in the same way as happened with the 1965 Act. In that Act, Parliament considered it right to respect the conscience of clergy and laity who felt unhappy about the terms of the Act. There are, of course, a variety of reasons; we would not all agree in the reasons we might offer. Some would be purely biblicist; it is in the Bible and we cannot go against it. Others would have a more critical view of the Bible but would say they believe that for social reasons the principle underlying that biblical injunction can be applied in new terms for our modern age. That is the position I myself adopt.

I regret very much that we have to ask for this concession, because it takes one more step in the direction of turning the Church of England into another sect in our country, but, so long as we are faced with what seems to me to be the irresponsibility of those who say that in these matters of private concern the courts cannot act, the Church has to take upon itself some such responsibility, and desires, where conscience demands it, the freedom to do so. I beg to move.

Lord Boston of Faversham

I should like to thank the right reverend Prelate the Bishop of Winchester for the clear way in which he has explained the purposes of this amendment to the Committee. But for his speech I should have had two querries. One would have been to invite him to inform your Lordships about the present law so far as matters of this kind, marriage generally and solemnisation by the clergy to whom he has referred are concerned. Secondly, I should have asked him to clarify the position so far as the solemnisation or otherwise of the marriages of divorced persons is concerned. From what he has said, your Lordships will appreciate, as you know from the statute the right reverend Prelate has mentioned, that this amendment would not involve any new departure; in other words, we should not be creating, by accepting this amendment, any new category of person. There is the precedent that he himself mentioned. So I certainly—and this is the spirit in which my noble friend Lady Wootton approached this amendment when she heard about it—should not wish to seek to compel anyone to do something of this kind against his conscience. Therefore, I would join with the right reverend Prelate in commending the amendment to your Lordships.

Lord Belstead

The Government also are certainly sympathetic to the intention of this amendment, which, as the right reverend Prelate has said, has precedent in a provision of the Matrimonial Causes Act 1965. But I think the amendment is defective in the sense that it does not quite achieve what the right reverend Prelates who have their name to it intend. As I understand the wording of the amendment, it would go too wide, inasmuch as it would enable a clergyman to refuse to marry, or allow another clergyman to marry in his church, persons related by affinity who, under the law as it stands today and as is also set out in Canon B.31 of the Church of England, are permitted to marry each other; for example, a man and the sister of his deceased wife I doubt whether that is what the right reverend Prelate really intends. I imagine that he would wish his proposal to be limited to cases of affinity in the direct line, whether ascending or descending, which, under this Bill, would for the first time fall outside the prohibited degrees of marriage. May I make a suggestion to the right reverend Prelate? It is that, if the Committee agree to the amendment, perhaps it could be moved into the Bill, and then could be further slightly amended at Report stage.

The Lord Bishop of Winchester

I shall be very happy for it to be handled in that way.

On Question, amendment agreed to.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Drumalbyn

May I make a short observation, with the consent of my noble friend on the Front Bench? It is simply in relation to Scotland. How does this Bill affect Scotland? What is the situation when two Scots come down to England and get married here within what used to be called forbidden relation ships? What happens when they go back to Scotland? Are they there married, or are they not? This seems to be a kind of Gretna in reverse.

Lord Boston of Faversham

I am grateful to the Minister, the noble Lord, Lord Belstead, for inviting me to respond. I have resolutely resisted throughout my legal life becoming involved and embroiled in what are to me the abstruse complexities of Scottish law and I hope that the noble Lord will forgive me if I adhere to that principle.

Lord Belstead

There is a serious point here in the sense that I put it to the noble Baroness, Lady Wootton, who is not here this evening, that, of course, the Bill does not extend to Scotland and that this could cause certain problems. I ask the noble Baroness if she would perhaps consider whether it ought to extend to Scotland and, if so, the services of the Home Office, so far as we are able to make them available, would be at her disposal. The noble Baroness has not been able to respond, but maybe it is right for me to say a second time that perhaps the noble Baroness, advised by the noble Lord, Lord Boston, would like to think about this matter again before the Report stage.

Lord Boston of Faversham

I am very grateful to the Minister for that generous offer, and on behalf of my noble friend I would say I am sure that we should like to take advantage of the guidance and advice from the noble Lord's department.

Clause 2 agreed to.

House resumed: Bill reported with the Amendments.