§ may in any case if the judicial authority thinks fit, and shall, if so desired by the person to whom the petition relates, be conducted in private, and in that case no one except the petitioner, the person to whom the petition relates, any two persons appointed for the purpose by the person to whom the petition relates, and the persons signing the medical certificates and the statutory declaration accompanying the petition shall, without leave of the judicial authority, be allowed to be present.
§ (3) If the judicial authority is satisfied that the person to whom the petition relates is a defective and is also satisfied that he is subject to be dealt with under this Act, the judicial authority may, if he thinks it desirable to do so in the interests of such person, make an order either ordering him to be sent to an institution the managers 198 of which are willing to receive him, or appointing a suitable person to be his guardian, and the order shall state the class of defectives to which he belongs, and the circumstances which render him subject to be dealt with under this Act:
§ Provided that—
- (a) where the petition is not presented by the parent or guardian, the order shall not be made without the consent of the parent or guardian, unless in the opinon of the judicial authority such consent is unreasonably withheld; and
- (b) nothing in this section shall prevent an order being made, notwithstanding that the person to whom the petition relates does not appear to the judicial authority to belong to the class of defectives to which he is in the petition alleged to belong, if the judicial authority is satisfied that he is a defective.
§ (4) If the judicial authority is not satisfied that the person to whom the petition relates is a defective, and subject to be dealt with under this Act, or that it is desirable in the interests of such person that an order should be made, the judicial authority may, if he thinks fit, adjourn the case for a period not exceeding fourteen days for further evidence or information, and may order that the person to whom the petition relates shall submit himself to medical examination, or may dismiss the petition:
§ Provided that, unless the petition is dismissed, the judicial authority shall order a medical examination in any case where the petition was accompanied by a certificate that a medical examination was impracticable.
§ Mr. WEDGWOOD
I beg to move in Sub-section (2) to leave out the words "may in any case if the judicial authority thinks fit, and." The Clause gives the details of the procedure for the hearing of petitions. The first Sub-section provides:(1) Upon the presentation of the petition and such documents as aforesaid, the judicial authority shall either visit the person to whom the petition relates, or summon him to appear before.In the ordinary course of events the person will be summoned to appear before him. The first notification a defective will get of the probability of his being put away will be a summons to appear before the judicial authority, and if the judicial authority thinks fit the petition shall be conducted in private. There has been a good deal of protest against hearing these petitions in private, and the hon. Member for North-West Durham (Mr. Atherley Jones) has some Amendments down on this point, but unfortunately he is not able to be present. If my Amendment is carried, the Clause will then read:(2) Proceedings before the judicial authority shall, if so desired by the person to whom the petition relates, be conducted in private.That removes from the judicial authority the power to hold a public inquiry if the person to whom the petition relates desires it to be conducted in private, and at the same time it prevents any hole-and-corner business, and that is important. I do not think I need labour the importance of having public hearings in these cases. The mere presence of the Press acts as a 200 deterrent against any hole-and-corner and unjust proceedings. Although the Press may not report the case the presence of the Press is a safeguard against any injustice being done because directly a case appears in the newspapers where there has been any injustice hon. Members, as well as the friends and relatives of a defective, can make whatever protest is possible and get the matter rectified or reversed.
§ Mr. ELLIS GRIFFITH
This is a controversial point as to whether the proceedings shall be public or private. Under the Clause as it stands, normally, the proceedings shall be public, but if the judicial authority thinks fit or if so desired by the person to whom the petition relates the inquiry shall be conducted in private. In this Clause we are very nearly following the recommendation of the Royal Commission. It is not an easy point to decide. There are some who suspect the judicial authority and some who suspect the doctors. We have to consider the interests of the patient. The proceedings under the Lunacy Acts are conducted in private, and I submit that it is really in the interests of the alleged defective and of the alleged defective's family that these proceedings should be in private, if the judicial authority or the defective himself desires it. I do not know why it should be considered a slur upon the family, but we know perfectly well that parents are not anxious to publish the fact that they have a defective child, both for their own sake and for the sake of the defective's brothers and sisters, and therefore, although publicity is a safeguard it is also a danger. I suggest that when we say that normally the proceedings should be public, but that when the judicial authority or the alleged defective desire it it shall be in private, we are making the best provision possible as well as following the recommendation of the Royal Commission and the procedure under the Lunacy Act.
§ Mr. H. TERRELL
Personally. I strongly support this Bill, and I hope to see it on the Statute Book before very long, but I support the Amendment, because the proceedings before a judicial authority ought always in my opinion, to be public. I speak from some experience of judicial proceedings of various kinds, and I have never, except in the case where the interests of 201 infants are concerned and where private matters are gone into known any advantage to be gained by a private judicial inquiry. Here, where you have a judicial inquiry into the question whether a man's liberty should be restrained or not, it is essential that publicity should be accorded rather than stifled. I also very strongly object to the judicial authority being the body that should have the power against the wishes of everybody concerned of hold-an inquiry in private. I could quite understand the inquiry being in private if the parents or the immediate relatives for some good cause shown desire it, but to give an unfettered discretion, which is not subject to correction by any other tribunal, to the judicial authority which is to investigate and determine the matter is to my mind an innovation which, if adopted, may have very serious consequences. It would be a precedent which would possibly be followed in other cases with very disastrous consequences. I do not see that the slightest benefit either to the lunatic or to his family is to be gained by giving this great unfettered discretion to the judicial authority which is to determine this matter. I think this Amendment should be accepted and that the only case in which the inquiry might be held in private should be where the parents of the patient on good cause shown desire it. I would strongly urge upon the Home Secretary, who himself has had considerable experience in judicial investigations, to realise the importance of not introducing a-precedent for holding these judicial inquiries in private. The Under-Secretary has suggested that lunacy proceedings are analogous. A lunacy inquiry is with the object of determining whether or not a person is a lunatic, and those proceedings are before, a jury. You cannot have a man declared a lunatic otherwise than by the inquiry of a jury.
§ Mr. ELLIS GRIFFITH
In 1911 and last year we had twenty or thirty thousand petitions, and in only four did they want a jury.
§ Mr. H. TERRELL
The parties interested are entitled to have a jury, but you are here introducing a very serious innovation in judicial practice and enabling the Court to determine finally, against the wishes of everybody, the lunatic included, that the inquiry shall be private. Under the Bill as it stands, the lunatic and everybody concerned may object to a private inquiry, and yet you are giving power to the judicial authority to say that the in- 202 quiry shall be private and the proceedings concealed from the public.
§ Mr. WEDGWOOD
It must be understood that if this Amendment is carried the relations of the defective will still be able to have the case heard in private. We are not interfering in any way with the friends of defective persons. All we are doing is to say that the Court shall not against the wishes of the defective and his friends hold the inquiry in private. This inquiry is not similar to an inquiry in lunacy; it is an inquiry as to whether a person comes within the different categories set out in the Bill, and it is a case in which the presence of the Court may help very materially.
I think that when you are having, as in this case, an officer of the local authority as petitioner—and, I suppose, in years to come, in at least nine out of every ten cases the petitioner will be an officer of the local Mental Defectives Committee of the borough or county council—it is far more important the inquiry should be held in public than it is when the petition is laid by the friends and relatives of the lunatic. There ought to be the keenest criticism of the action of the officer of the local authority. In future you are going to have a black list drawn up of mentally defectives persons in the country, and whenever any person whose name is on that list is brought before a Court the officer of the local authority will submit a petition in order to have that person confined. Therefore, in dealing with such cases it is ten times more, important to have them heard in public than in the way an ordinary lunacy inquiry is conducted. Even now, where the officer of an education authority summonses people for not sending their children to school or for some other infraction of the Education Act the cases arc fully reported, and the fact that they are so reported acts as a restraint on the local authority proceeding against too many people. You have through the mere menace of publicity alone a large check upon arbitrary and despotic action on the part of a local authority, and if ever publicity is necessary, surely it is required in cases where you will be inflicting the rigour of the law upon the poorest class of the population who do not know their rights as we do, and who, if the inquiry is held in private, will be absolutely at the mercy of the local authority.
Therefore I protest that we ought to pass this Amendment. I hoped that 203 the Government were going to accept it, and I am sorry some influence has supervened which has induced them to decide to keep it out of the Bill. I am certain that this provision will make the Bill far more of a hardship to the lower classes than it would prove with the Amendment in it. You are storing up for yourselves an evil day when the people of the country realise the sort of legislation which you who are not affected by this law are passing. Can anybody doubt the statement the Bill will not affect Members of this House? The law is only meant for the lower orders, and anyone who reads the Bill cannot fail to see that the means through which it is going to be enforced is through the ordinary elementary school, from which mentally defective children are to be gradually weeded out. This Clause will, without doubt, inflict considerable hardship upon poor people who have mentally defective children, who love them and wish to keep them with them. These are the people who are going to be penalised by this Clause, and when you start penalising them like that you are touching them in the most intimate feelings, and you will infallibly evoke a great burst of unpopularity.
§ Lord HUGH CECIL
I am inclined to agree with the hon. Member that publicity is an advantage in these matters as well as a certain safeguard, but I think he I overrates its value when he thinks it will; make people conduct their business in a just and reasonable manner, or that it will prevent arbitrary and despotic decisions. The House of Commons always sits in public, but it cannot be said that its business is reasonably conducted, or that it is free for arbitrary and despotic procedure. The Home Secretary might do worse if he sat in private, and therefore I am inclined to agree with the hon. Member
§ that this Amendment would be an improvement. I shall therefore support it.
§ Mr. SANDERSON
The last thing I want to do is to take up time, but I really do think this is important. I agree with what was said by my hon. Friend the Member for Gloucester (Mr. Henry Terrell). I cannot imagine what is the object of giving the judicial authority power to sit in private. The Under-Secretary based his speech principally on the argument that he could understand cases where the persons concerned would be likely to wish that the cases of their children should be heard in private. That is already safeguarded by the subsequent provisions of the Sub-section. Let me give a case which is in my mind. Supposing you take a town where the magistrates are administering this Act and an opinion gets about that they are not administering it in accordance with the provisions of the Act, and then they have it in their power to do this. What a very unsatisfactory thing. Perhaps there is a good deal of discussion as to whether one particular person is one who ought to be shut up—and I can quite imagine a great amount of feeling being raised in a small place like that about one particular case—and if the justices are aware of that feeling and have perhaps made up their minds, to a certain extent—as we know justices do sometimes make up their minds—as to how they are going to decide the case, and they are going to decide it against the popular opinion they may decide to hear it in private, and that is a very unsatisfactory thing. This is a very important matter and there is no reason to give this power. I certainly shall support the Amendment.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The House divided: Ayes. 172; Noes, 56.205
|Division No. 217.]||AYES.||[12.33 a.m|
|Abraham, William (Dublin, Harbour)||Brace, William||Davies, Ellis William (Eifion)|
|Acland, Francis Dyke||Brady, Patrick Joseph||Davies, Sir W. Howell (Bristol, S.)|
|Addison, Dr. Christopher||Brunner, John F. L.||Dawes, James Arthur|
|Allen, Arthur A. (Dumbartonshire)||Bryce, J. Annan||Delany, William|
|Allen, Rt. Hon. Charles P. (Stroud)||Buckmaster, Stanley O.||Devlin, Joseph|
|Arnold, Sydney||Burns, Rt. Hon. John||Dickinson, W. H.|
|Baker, Harold T. (Accrington)||Cawley, Harold T. (Lancs., Heywood)||Doris, William|
|Baker, Joseph Allen (Finsbury, E.)||Chapple, Dr. William Allen||Duffy, William J.|
|Baring, Sir Godfrey (Barnstaple)||Clancy, John Joseph||Duncan, C. (Barrow-in-Furness)|
|Barton, William||Clay, Captain H. H. Spender||Duncan, J. Hastings (Yorks, Otley)|
|Beauchamp, Sir Edward||Clough, William||Edwards, A. Clement (Glamorgan, E.)|
|Beck, Arthur Cecil||Clynes, John R.||Edwards, Sir Francis (Radnor)|
|Benn, W. W. (T. Hamlets, St. George)||Condon, Thomas Joseph||Elverston, Sir Harold|
|Bennett-Goldney, Francis||Cornwall, Sir Edwin A.||Esmonde, Dr. John (Tipperary, N.)|
|Boland, John Pius||Crumley, Patrick||Esmonde, Sir Thomas (Wexford, N.)|
|Bowerman, Charles W.||Cullinan, John||Essex, Sir Richard Walter|
|Boyle, Daniel (Mayo, North)||Davies, David (Montgomery Co.)||Ferens, Rt. Hon. Thomas Robinson|
|Ffrench, Peter||MacNeill, J. G. Swift (Donegal, South)||Robinson, Sidney|
|Field, William||Macpherson, James Ian||Roch, Walter F. (Pembroke)|
|Fiennes, Hon. Eustace Edward||MacVeagh, Jeremiah||Rowlands, James|
|Fitzgibbon, John||McGhee, Richard||Samuel, J, (Stockton-on-Tees)|
|Flavin, Michael Joseph||McKenna, Rt. Hon. Reginald||Sanders, Robert Arthur|
|Furness, Sir Stephen Wilson||Marks, Sir George Croydon||Scanlan, Thomas|
|Gladstone, W. G. C.||Meagher, Michael||Scott, A. MacCallum (Glas., Bridgeton)|
|Goulding, Edward Alfred||Meehan, Francis E. (Leitrim, N.)||Seely, Rt. Hon. Colonel J. E. B.|
|Griffith, Ellis Jones||Meehan, Patrick J. (Queen's Co., Leix)||Sheehy, David|
|Gulland, John William||Middlebrook, William||Simon, Rt. Hon. Sir John Allsebrook|
|Gwynn, Stephen Lucius (Galway)||Millar, James Duncan||Smyth, Thomas F. (Leitrim, S.)|
|Hackett, John||Molloy, Michael||Stanley, Albert (Staffs, N.W.)|
|Harcourt, Robert V. (Montrose)||Morgan, George Hay||Stewart, Gershom|
|Harvey, T. E. (Leeds, West)||Muldoon, John||Strauss, Edward A. (Southwark, West)|
|Hayden, John Patrick||Munro, Robert||Sutherland, John E.|
|Hayward, Evan||Murray, Captain Hon. Arthur C.||Taylor, John W. (Durham)|
|Hazleton, Richard||Nolan, Joseph||Taylor, Theodore C. (Radcliffe)|
|Helme, Sir Norval Watson||O'Brien, Patrick (Kilkenny)||Tennant, Harold John|
|Henderson, J. M. (Aberdeen, W.)||O'Connor, John (Kildare, N.)||Thorne, G. R. (Wolverhampton)|
|Henry, Sir Charles||O'Doherty, Philip||Trevelyan, Charles Philips|
|Higham, John Sharp||O'Dowd, John||Ure, Rt. Hon. Alexander|
|Hills, John Waller||O'Grady, James||Verney, Sir Harry|
|Hobhouse, Rt. Hon. Charles E. H.||O'Malley, William||Wason, John Cathcart (Orkney)|
|Hughes, Spencer Leigh||O'Neill, Dr. Charles (Armagh, S.)||Webb, H.|
|Illingworth, Percy H.||O'Shee, James John||White, Major G. D. (Lancs., Southport)|
|John, Edward Thomas||Parker, James (Halifax)||White, J. Dundas (Glasgow, Tradeston)|
|Jones, H. Haydn (Merioneth)||Parry, Thomas H.||White, Sir Luke (Yorks, E.R.)|
|Jones, J. Towyn (Carmarthen, East)||Pease, Rt. Hon. Joseph A. (Rotherham)||White, Patrick (Meath, North)|
|Jones, Leif Stratten (Notts, Rushcliffe)||Phillips, John (Longford, S.)||Whitehouse, John Howard|
|Jones, William (Carnarvonshire)||Pollock, Ernest Murray||Wiles, Thomas|
|Joyce, Michael||Ponsonby, Arthur A. W. H.||Williams, John (Glamorgan)|
|Keating, Matthew||Price, C. E. (Edinburgh, Central)||Williamson, Sir Archibald|
|Kelly, Edward||Pryce-Jones, Colonel E.||Wilson, Hon. G. G. (Hull, W.)|
|King, Joseph||Rea, Walter Russell (Scarborough)||Wilson, Rt. Hon. J. W. (Worcs., N.)|
|Lambert, Rt. Hon. G. (Devon, S. Molton)||Reddy, Michael||Wilson, W. T. (Westhoughton)|
|Lambert, Richard (Wilts, Cricklade)||Redmond, John E. (Waterford)||Wing, Thomas Edward|
|Lardner, James C. R.||Redmond, William (Clare, E.)||Wood, Rt. Hon. T. McKinnon (Glasgow)|
|Levy, Sir Maurice||Redmond, William Archer (Tyrone, E.)|
|Lewis, Rt. Hon. John Herbert||Roberts, Charles H. (Lincoln)|
|Lundon, Thomas||Roberts, George H. (Norwich)||TELLERS FOR THE AYES.—Mr. Geoffrey Howard and Captain Guest.|
|Lynch, A. A.||Roberts, Sir J. H. (Denbighs)|
|Macnamara, Rt. Hon. Dr. T. J.||Robertson, John M. (Tyneside)|
|Adamson, William||Gilmour, Captain John||Perkins, Walter F.|
|Agg-Gardner, James Tynte||Goldsmith, Frank||Peto, Basil Edward|
|Baird, John Lawrence||Goldstone, Frank||Pointer, Joseph|
|Banbury, Sir Frederick George||Gordon, Hon. John Edward (Brighton)||Rawlinson, John Frederick Peel|
|Barlow, Montague, (Salford, South)||Greene, W. R.||Roberts, S. (Sheffield, Ecclesall)|
|Barnston, Harry||Guinness, Hon.W. E. (Bury S. Edmunds)||Ronaldshay, Earl of|
|Booth, Frederick Handel||Gwynne, R. S. (Sussex, Eastbourne)||Rutherford, Watson (L'pool, W. Derby)|
|Boyton, James||Hamilton, C. G. C. (Ches., Altrincham)||Samuel, Samuel (Wandsworth)|
|Bridgeman, William Clive||Henderson, Major H. (Berks, Abingdon)||Sanderson, Lancelot|
|Burn, Colonel C. R.||Hodge, John||Stanley, Hon. G. F. (Preston)|
|Cassel, Felix||Hogge, James Myles||Terrell, Henry (Gloucester)|
|Cecil, Lord Hugh (Oxford University)||Hope, Major J. A. (Midlothian)||Thynne, Lord Alexander|
|Chancellor, Henry George||Horner, Andrew Long||Weston, Colonel J. W.|
|Clive, Captain Percy Archer||Jessel, Captain H. M.||Whyte, A. F. (Perth)|
|Craig, Herbert J. (Tynemouth)||Lewisham, Viscount||Wood, John (Stalybridge)|
|Dalrymple, Viscount||Locker-Lampson, O. (Ramsey)||Younger, Sir George|
|Denison-Pender, J. C.||Macdonald, J. Ramsay (Leicester)|
|Dickson, Rt. Hon. C. Scott||Morrell, Philip||TELLERS FOR THE NOES.—Mr. Wedgwood and Mr. Martin.|
|Falle, Bertram Godfray||Morrison-Bell, Major A. C. (Honiton)|
|Gibbs, George Abraham||Mount, William Arthur|
Question, "That those words be there inserted," put, and agreed to.
§ Mr. GOLDSMITH
I rise to move: "That further consideration of the Bill, as amended, be now adjourned."
We have been considering this Bill now for about nine hours, and I really think the time has arrived when this Debate should be adjourned. Most of the time we have been listening to the very excellent speeches delivered by the hon. Member for Newcastle-under-Lyme (Mr. Wedgwood), and at the present moment the Home Secretary seems no longer 206 inclined to hear any arguments either in favour of or against the Bill. All that is being done at present is for a number of Clauses to be put until we reach a Clause on which the Home Secretary himself has an Amendment down. On a Bill of this importance, which the House is discussing for the first time—because the House so far has had no opportunity of discussing the details of the Bill—the most careful consideration ought to be given to the various Clauses in the Bill, and 207 therefore I hope the right hon. Gentleman will see his way to agree to the Adjournment of the Debate and give us another day on which we can discuss some of the important proposals contained in the next few Clauses.
§ Sir FREDERICK BANBURY
In seconding the Amendment, I would appeal to the right hon. Gentleman to make some proposal which we can accept. I think he will agree with me that it is not wise to keep the House sitting up during the small hours of the morning. I do not know whether I am speaking for everyone on this side or not, but, so far as I am personally concerned, I should be quite willing to meet the right hon. Gentleman if he would make some reasonable proposal. I do not think it is possible for him to obtain the whole of the Bill to-night, or rather this morning, and it is perfectly true, as my hon. Friend says, that this is the first time the House as a whole has had the opportunity of considering this most important Bill. The House ought to have some opportunity of expressing its opinion, at any rate, upon some of the Clauses. I do not rise to second this Amendment in any hostile spirit, but rather in the hope that we shall come to some sort of agreement that will be mutually advantageous to everybody and really in the interest of the House itself.
§ Mr. McKENNA
I recognise fully the sympathetic spirit in which the Motion has been made and seconded. I must, however, appeal to the House to support me in going on with this Bill. At this period of the Session it is only reasonable to remind the House that every day given to the further consideration of a Bill like this which is going to be passed, simply moans encroaching more and more into the holidays, which I know my hon. Friends are as anxious to have as I am. If we have this Debate now, with a little effort we ought to get through the Report stage, remembering also that the strenuous opposition to this Bill only comes from a mere handful of Members, to meet whose views, I would like to remind them, I have been doing everything I can for a period of two years. They will not be satisfied unless or until this Bill is turned from a Bill representing the views of the great majority of the House into a Bill representing the views of the smallest minority. That we cannot do. This Bill has got to represent in 208 principle the views of the House. The House has been very willing to assist me in meeting the reasonable objections of hon. Members who take a particular view in dealing with matters of this kind, and I would beg them not to press their opposition to an unreasonable extent, but allow us now to make substantial progress with the Bill. There is so little left of controversy that with a little good-will we might get the whole Bill at this one Sitting.
§ Lord HUGH CECIL
I do not think the right hon. Gentleman takes up a wholly reasonable line. It is not the fault of the opponents of the Bill or the non-official supporters of the Bill that the measure comes before the House so late in the Session. The Government have had control of the time of the House, and it was quite possible for them to have brought it under consideration at an earlier period in the Session and give reasonable time for its consideration. I do not think it is very reasonable to ask the House to take the Report stage of a Bill containing seventy Clauses, even if the opposition is confined to a small number of Members, at a single Sitting. It is certainly propounding a standard of progress different from that to which either party has been accustomed since I have been in Parliament. I do not think the right hon. Gentleman will be able to recall a single instance of a Bill of this complexity and length being passed through its Report stage at a single Sitting of the House of Commons. It appears to me that if you are to have a Consideration stage at all you really mean a Bill to be considered. I do not think the discussion up to now has been of unreasonable length. [HON. MEMBERS: "Clause 1."] The first Clause passed quite easily through the House and no one used obstruction.
§ Lord HUGH CECIL
It is an exceedingly important Clause, containing the definition of feeble-minded persons. The first two Clauses are the most important in the Bill. I am putting it to the right hon. Gentleman that it is not really a reasonable thing to pass a Bill of this length and complexity in a single Sitting. After all, we are supposed to be doing useful work in reviewing this Bill in the House. I presume that the right hon. Gentleman does not suggest the we are not entitled to discuss the Bill at all; and, if we are entitled to discuss it, then we are entitled 209 to discuss it at a reasonable hour of the day. If the right hon. Gentleman could say that he wanted two or three more Clauses I do not suppose that anybody would be inclined to resist him, and if he would make a reasonable proposal we could come to an understanding. But to ask that the whole Bill should be carried through the consideration stage at a single sitting is, I submit, to treat the House with contempt. The Government might as well have put down a Motion to dispense with the whole stage. If they do not think it right to move that sort of Motion, it is presumed that they think there should be a proper consideration of the Bill, and it is perfectly absurd to say that you can have anything like a proper consideration in the early hours of the morning.
Therefore, I hope the right hon. Gentleman will now seriously consider the propriety of adjourning the Debate. We ought to treat legislation in a serious spirit, and it is impossible for the Government to say they are doing so if they expect members of this House to review the remainder of the seventy Clauses at this Sitting. This is not a matter of party controversy. It is not a Bill which divides the House on ordinary party lines, and the right hon. Gentleman has only to conduct the Bill in a reasonable and conciliatory spirit in order to make more rapid progress than he has already achieved. He has made no appeal to the House to assist him, and he has been content with the arbitrary Motions he has made from time to time, which have had the effect of shutting out discussion on matters that some of us think should not have been passed over without consideration. But even so, he has made very good progress. Why should ho not be satisfied with a moderate, but nevertheless very real, measure of progress, and adjourn the further consideration of the measure at a point which could be agreed upon by arrangement with all concerned? If such Bills as this are to pass through the House of Commons, they can only be properly debated if there is a certain amount of give and take between Members and the Government. I certainly do not think the course which the Government propose to take on this occasion is a reasonable one, and I shall therefore support the Motion for the adjournment of the Debate.
§ Mr. WEDGWOOD
I beg to support the Motion for the adjournment of the discussion, and I do so, first of all, on purely 210 personal grounds. I have had to sit here during practically the whole time since a quarter to four o'clock yesterday afternoon with the result that I have not been able to go to the dining room or even to the tea room to get a meal. I think it is rather hard that one should be overwhelmed by the mere physical impossibility of remaining in one place without a meal for such a long period, and I trust, that the Government will be reasonable in the matter. But I support the adjournment for an even stronger reason which I will state shortly to the House. This is the first occasion on which the Government have made use of the Kangaroo to closure a Bill which is not opposed officially by the Opposition. It is also the first occasion on which a non-controversial Bill in the ordinary party sense has been forced through the House when it has not been obstructed. [HON. MEMBERS: "Oh, oh."] I notice that some hon. Members do not agree with my statement, but I venture to say that any Member who has been here during the whole of the Debate will bear me out when I say that there has been no sort of obstruction to the Bill. The Amendments moved by my Friends and I have been Amendments of real substance, and they have been debated seriously. It is true that since the use of the Kangaroo Closure began a change has taken place, but I defy anybody to say that previous to that there was obstruction of any kind. On the other hand the discussion has been of a practical, a business-like, and a useful character. When the Home Secretary says that the first Clause took six hours to get through he forgets that an hour-and-a-half was taken up with the discussion on new Clauses. There is one other thing to remember. The Secretary of State talks about those who have sought to improve this Bill by all the means in their power as being only a small minority opposed to the Bill. He knows perfectly well that there would be an even smaller minority if the Bill had been framed on voluntary lines.
We all know that something must be done to deal with the problem of mentally defective people, and if the Bill had been cast on voluntary lines I am certain that there would have been an overwhelming majority in favour of it. You would in fact have had a unanimous House, anxious to frame-the best sort of measure and to place it on the Statute Book. There is one other thing that I want to say. However over- 211 whelming the majority in this House, I have always understood that it was a ruling principle that minorities were given fair play. I want the House to realise that the minority to-day may be the majority to-morrow, and that the minority may be right and the majority be wrong. You cannot make things right or wrong by Act of Parliament, whether legislation is carried by majorities as great as 200 or 300 or not. This Bill, if it is made into an Act of Parliament, will be a wrong Act, and it will be right for anybody to resist that Act by the best means in his power. It is a measure which is contrary to the conscience of humanity, and whether you pass it by a triumphant majority here or not, you will not make the Act binding on anybody. It is, I submit, an iniquity that a Bill of such tremendous importance should be passed through the House of Commons by means of a drastic use of the closure in the small hours of the morning, and in any case it shall not be said that the minority, small though it may be, gave way in their perfectly legitimate opposition to these proposals, however great may be the strain imposed on them.
§ Captain JESSEL
As a supporter of the Bill, I feel that I must support the appeal which has been made to the Home Secretary either to adjourn or to come to some bargain with hon. Members on this side of the House as to the amount of further progress which is to be made during the present sitting. It is not the fault of the Opposition that this Bill has come down to the House so late in the Session. We are not masters of the time of the House, and the Government might have managed to bring the Bill on earlier in the Session. The Home Secretary says that there are very few points of substance left to be discussed, but it must be remembered that this is a very important Bill. It has to do with the liberties of the subject, and there are, I submit, a great many points worthy of discussion in the House if we are to try to make it as good a Bill as possible. Yet, here we are solemnly asked to dispose in one sitting of a Bill of seventy Clauses. I wish to point out to the Home Secretary that there are certain Amendments on the Order Paper which we regard as important. We cannot at the present time tell whether they are going to be jumped over or not under the process of Closure which the Home Secretary has adopted.
212 In these circumstances I should like to ask whether the right hon. Gentleman could not give us some indication as to the Amendments that he is willing, after consultation with us, should be discussed. As my hon. Friend behind me (Mr. H. Terrell) said, with one exception every Amendment that has not been closured since a certain period of the evening has been an Amendment which the Home Secretary has moved himself or of which he had approved. There are certain Amendments of substance which do require a good deal of discussion, and if the Home Secretary would indicate that he would to-night go down only as far as a certain Clause in the Bill, then we might have another day to finish the discussion. I do not think that is too much to ask, and I believe if such a course is adopted it will be in the interests of the Bill. I appeal to the Home Secretary not to rush the Bill for the sake of the honour and glory of getting it through at a single sitting. Hon. Members opposite—I should be the last to wish to complain of it—took up a great deal of the time before dinner. No doubt the subject matter of the Clauses with which they dealt was very important, but the fact remains that very few Members on this side of the House had a chance to get a look-in in the Debate. Hon. Friends behind me had various important Amendments on the Paper which they wished to move, but the Home Secretary became impatient, and closured the whole Clause. That was not very fair to some of my hon. Friends behind me, and I, as a supporter of this Bill, and hoping it will get into law, beg the Home Secretary not to try to attempt to rush it and to take the whole Bill to-night, but to indicate what he thinks is a reasonable proposition as to what proportion he proposes to take tonight, and what we may discuss on another day.
§ Mr. McKENNA
I have had so much support on this Bill from the hon. Gentleman who has just spoken, from the hon. Gentleman behind him who moved this Motion, and from other hon. Gentlemen opposite, that I feel most reluctant to seem to be unduly oppressive in my demands on the time of the House, but when the hon. Member and the Noble Lord speak of an arrangement, they forget that my hon. Friend who sits behind me (Mr. Wedgwood), and who has taken the greatest part in opposing this Bill, is not prepared to make any sort of arrange- 213 ment of any kind. In view of what has been said—and I recognise the force of the appeal that has been made—if we went this morning to the end of Part I—that is to Clause 19—and then took the remaining Clauses of the Bill to-morrow after Eleven, then I think that would be a reasonable division of the Bill, and I hope it will be acceptable to my hon. Friends, to the Noble Lord the Member for Oxford University, and his hon. Friends.
§ Sir F. BANBURY
I hope that the hon. Member for Newcastle-under-Lyme will accept this arrangement. It is a very reasonable proposal on the part of the right hon. Gentleman, and I trust the hon. Member will accept it.
§ Mr. WEDGWOOD
The only thing is that the only two subjects which I wish to debate come before this second part. One is on Clause 6, which deals with the question of the parental veto on sending children to institutions, and the other is on Clause 11, as to whether these orders should be permanent, or should last only for the year, and that after the year is over the inmates are to be free, so that they can go if they like. Those two points seem to me to be the most important things, from my point of view, as affecting the liberty of the subject, and yet they are to be discussed in the middle of the night, in this way! The remainder of the Bill deals with the constitution of the authorities, and with matters of that sort, which do not interest me materially, and no doubt they will be disposed of on a Friday afternoon. I should regret very much, however, if those other two points were discussed at this time. I am quite certain they are the questions in which people outside take the greatest interest, but I am quite prepared to sit up, if hon. Members opposite are prepared to sit up and finish these Clauses, only I do not see much bargain in the case, and I do not see how we can possibly get through these Clauses before six in the morning.
§ Mr. GOLDSMITH
I am quite ready to withdraw the Motion, on one condition— namely, that the right hon. Gentleman will give me an informal undertaking that he will not move the closure more than is absolutely necessary —[HON. MEMBERS: "No"]—as, in that case, I certainly shall persist in my Motion.
§ Mr. GOLDSMITH
If the right hon. Gentleman tells us he is going on to Clause (19), and is going to move the closure, and to put two or three Clauses at the same time, I shall certainly stick to my Motion.
§ Mr. McKENNA
I can assure the hon. Member that I certainly would not presume to ask Mr. Speaker to allow me to move the closure, or put the question to him, unless I had been, personally, through every individual Amendment. No Amendments were passed over last night which had not either been dealt with, in principle, before, or were really material ones. I can assure hon. Members that that has been literally the case, in regard to all the Amendments which have been passed over. The Amendment of the Noble Lord the Member for Oxford University, which was an important one, in Clause (5) should be discussed on Clause (6), and we hope to discuss it now.
§ Mr. WEDGWOOD
It must be understood that there is no bargain, and that I am not bound not to move my Amendments.
§ Mr. RAWLINSON
The real question is whether what we are doing now can improve this Bill. I will not keep the House one minute, but I do submit that we arc not doing good work at this time of night. We are debating a very important question—and we have a lot more important questions before us—and if we get Clause (19) to-night, this House will not be doing good work as a revising body at all. We have very big and important matters before us, and the Government ought to give us a morning sitting to deal with them.
§ Sir NORVAL HELME
May I ask if it would be possible to come to an understanding by which we could adjourn earlier to-night, guaranteeing that the Bill should go through on Friday at a reasonable hour?
§ Mr. H. TERRELL
With a view to getting this Bill through, we might take it on Friday, as that day, which was given to the consideration of the Marconi Committee, is now free. But if we take part of it to-morrow evening, and finish it on Friday, we should get through the Bill. 215 But there are things of such importance that they do require very careful consideration at a reasonable hour of the day
§ Lord HUGH CECIL
I may only speak by the indulgence of the House, but I hope my hon. Friend will not press the Motion for the Adjournment. Though I do not think the Home Secretary has made a very generous offer, I think it would be unreasonable to press him much further. I understand that we shall adjourn, making the Debate as short as we reasonably can, at Clause (19), and that the rest of the Bill will be taken to-morrow.
§ Mr. GOLDSMITH
After the last statement made by the right hon. Gentleman, I am perfectly willing not to move my Motion.
§ Motion, by leave, withdrawn.
§ Mr. WEDGWOOD
I beg to move in paragraph (a), after the word "consent" ["made without the consent"] to insert the words "in writing."
§ Mr. McKENNA
I beg to move in paragraph (a) to leave out the words "unless in the opinion of the judicial authority such consent is unreasonably withheld," and to insert instead thereof the words "unless it is proved to the satisfaction of the judicial authority that the parent or guardian is unable or unwilling to make suitable provision for the care of the defective."
My primary object in making this change is in order to throw the onus of proof upon the petitioner, instead of leaving it upon the parent. I frankly confess to the House that, although my officers and my hon. Friends and I have given a very great deal of care to these words, we are not particularly satisfied with them. They do effect their primary object, but they are open to the objection that the parents or guardians might profess themselves able or willing to make suitable care or suitable provision for the care of the defective, and that then there would be no guarantee that such suitable care or suitable provision would be actually forthcoming. The Noble Lord the Member for Oxford University has an Amendment down, which is printed as referring to Clause 5, but which should 216 be Clause 6. He proposes to insert at the end of paragraph (a) of Sub-section (3) of Clause 6, after "withheld," the words, "Provided that such consent shall not be deemed to be unreasonably withheld if the judicial authority is satisfied that the parent or guardian in good faith desires the well-being of the defective person." That again, if I may say so, errs, like my own Amendment, in not giving any security that the parent or guardian is capable of carrying out his intention in the interest of the defective. I will formally move my Amendment and I shall keep a perfectly open mind as to what hon. Members suggest as an alternative or better form of words.
§ Mr. POLLOCK
I hope the Home Secretary will not press these words, but that he will keep the words as they stand in the Bill and accept the Amendment of the Noble Lord the Member for Oxford University. The effect of altering the words as they stand in the Bill is this. That there is one thing and one thing only required by these new words, namely, proof that the parent or guardian is unable or unwilling to make suitable provision for the defective. These are words of limitation, and, to my mind, it is much more satisfactory to leave the words which are in the Bill because they are much wider words—"unless in the opinion of the judicial authority such consent is unreasonably withheld." That may be for various reasons. You have only to consider whether the consent has been properly given or improperly withheld, and there, is the end of the proviso. Various considerations may arise as to whether or not that consent ought to be given or has been unreasonably withheld, but these new words limit the whole question to whether or not suitable provision is made or will be made for the care of the defective. That may be promised, but never carried out, as the Under-Secretary himself allowed, and the reason I object to the new words is that I do not want the only question to arise to be whether suitable provision is offered or undertaken on behalf of the defective.
I want a much wider basis to be maintained—namely, that the judicial authority should consider all the various grounds that may make that consent a good consent or an unreasonable consent, and act accordingly. In the words of the Noble Lord, "provided that such consent shall not be deemed to be unreasonably-withheld if the 217 judicial authority is satisfied that the parent or guardian in good faith desires the well-being of the defective person," he ensures something like good faith on the part of the parent or guardian, and that is really all the Home Secretary is looking for. I remember this question was very carefully considered previously, and I do not really see any good ground for altering it. I want the judicial authority to have as wide a range for considering the question of consent in all its bearing as possible, and therefore the words in the Bill are happier than the words proposed by the Home Secretary, and I hope the right hon. Gentleman will leave the Bill as it is, subject to accepting the Amendment of the Noble Lord the Member for Oxford University.
§ Mr. H. TERRELL
I do not think the words in the Bill very happy or calculated to have the result which is desired. What is meant by the words in the Bill as originally framed—"unless in the opinion of the judicial authority such consent is unreasonably withheld "—it is very difficult to say. We intend to provide for a case that often happens of parents who have a defective child and who use that child as a drudge. We want to protect that child. The parent in that case would not consent, but how could it be proved that the consent was unreasonably withheld? That would be impossible under the ordinary practice to satisfy a Court as to that. Then as to the words the Home Secretary proposes to introduce, I think they fall short of what is desired to be accomplished. May I ask the House, because this is a very important matter, to read the Clause as in the original Bill, and as it is now proposed to be Amended—"Where the petition was not presented by the parent or guardian the Order shall not be made without the consent of the parent or guardian." That gives the parent or guardian an absolute veto on the making of the Order. It is proposed to limit that veto by the Amendment and the way in which it is proposed to limit it is by saying that that veto shall not be absolute if it is proved to the satisfaction of the judicial authority that the parent or guardian is unable or unwilling to make suitable provision for the case of the defective. That only deals with the ability or willingness of the guardian or parent to make provision.
Take the case, which frequently happens, of a parent, a mother, who has a, small income, lives in a home, has a 218 defective child and uses it as a drudge. She would be able to show that she was able to make suitable provision for the child. She would say she was willing for the child to live in the house, and how could you say: "How do we know that you will take proper and suitable care of the child, and will not use it as a drudge?" That would be impossible. The mother would say: "I have the means and am willing to make provision for the child," and the Court would have to say that the veto was absolute. I venture to suggest to the Home Secretary that if at the end he would add the words: "and that the defective would be adequately attended and cared for "that would leave the situation better. The Clause would then declare that the Order shall not be made without the consent of the parent or guardian, but the consent of the parent or guardian shall not be required if it is proved that the parent or guardian is unable to maintain the child or unless it is proved that the defective will be adequately and properly cared for. That is exactly what we want to provide for. We want to limit the veto of the parent in two respects, first by making him show that he is able and willing to maintain the child and, secondly, by satisfying the Court that the child will be adequately and properly, cared for. This is a very clumsy Clause, I agree, because you get a negative and then an exception to the negative, but if you read the Clause, adding the words I have suggested, I think the House will see it meets the case in those two respects. I have considered the drafting, and I think if you will simply add these words to the Amendment, and then read the whole Clause with the Amendment and these words together, you will find that it will have the effect which I have suggested, and, if so, I would venture to ask the Home Secretary to add these words to the Amendment, which would then carry out what I believe is the, intention of the House, and give adequate protection to a defective child.
§ Mr. WEDGWOOD
I hope the Home Secretary will not listen to the blandishments of the hon. Member opposite, and accept his Amendment, or in any way move in that direction. I hope the right hon. Gentleman will withdraw his Amendment and accept the Amendment moved by the Noble Lord opposite. It seems to me the best form of words. If the right hon. Gentleman insists on his Amendment. I propose to leave out "unable or." I 219 have the strongest possible objection to the Amendment, which, as it stands, merely means that if a person is poor his veto is to have no effect at all whatever, and only the veto of the fairly-well-to-do middle-class people will be considered. It seems to me that if we were to have the Amendment of the Noble Lord opposite, although it does not do everything, and still leaves the onus of proving good faith upon the parent or guardian, it gives much more safeguard to the right of parental veto than the Amendment of the Home Secretary. I have myself got down an Amendment which I think the best of all, but I do not propose to move it. My Amendment is to leave out "unless in the opinion of the judicial authority such consent is unreasonably withheld; and'' and to insert "the parent or guardian has been convicted of an offence under the Children's Act, or under any of the Acts for the prevention of cruelty to children." That seems to me to be far and away the best safeguard for parents. If parents have done something wrong and have been convicted, then by all means let them lose their parental rights, but, if they have not done anything wrong, I contend that the right of the parent to say whether his child should go to one of these institutions or not ought not to be tampered with. But I recognise that, being in the small minority to which the Home Secretary referred, I have no right to get an Amendment accepted. The Noble Lord opposite, however, does represent a considerable party, and if his Amendment, which does go rather further than the Home Secretary's, and does, at the same time, safeguard the interests of the parents, were carried, I think we might get on to the next Amendment and go ahead.
§ Lord HUGH CECIL
I confess to thinking that the Amendment of the Home Secretary, as it stands, would not be an improvement to the Bill, and it would be better to keep the Bill in its original form than accept the Amendment. But, perhaps, it would be convenient to state the point of substance at issue. The Bill as it stands is ambiguous. It does not quite definitely say what would be deemed to be unreasonable refusal of consent, and there are two classes of refusal, one of which I think ought to be classed as unreasonable and the other ought not to be so classed. There is the indifferent parent, and the grossly negligent or cruel parent, or the parent who has become so weary by the 220 infirmity of the child that no proper effort is made to look after the child. I have heard of the case of a child who was tied up by a leg. That is the sort of case in which a parent ought not to refuse consent to the child being taken elsewhere where it would be well treated. But there is another class of case where the parent is often really passionately attached to the feeble-minded child. We must not forget what has been frequently pointed out by great writers, that an infirm or feebleminded child often excites more affection than a child that is sound, and that is the sort of sentiment which has not always received the respect which often from the mere point of view of health it ought to receive.
There is a tendency to think that a well-managed asylum with proper nurses and proper medical attention is more important to a child than an affectionate parent. I am sure that is profoundly untrue, even from the point of view of health, and it is extraordinarily cruel. It is hardly possible to overstate the cruelty that might be inflicted if a doctor or magistrate, or cranks about this thing, were to take away from an affectionate parent a feeble-minded child which a parent loved to have at home by him or her, and loved to look after. I do not want at all to excite class prejudices, but it is a simple fact that poor people are very defenceless in these matters. One does not suppose there would not be a desire to treat them fairly, but they do not know how to work the law in their own interest. They do not understand how it is done. They are perfectly defenceless before an authority who says, "you must do this," or "you must do that," and they cannot help themselves in the presence of the authority. I think we ought most scrupulously to guard against such a danger. I think there are two ways, but I do not think you could possibly guard against it if you accept the view contained in the Home Secretary's Amendment and also contained in the proposal of my hon. Friend that ability to provide for the child should be a necessary qualification, because the moment you put in this the question arises: What is the suitable provision which the parent ought to be able to make? It leaves room for the discretion of the doctor or magistrate, or both, "which might lead to the very kind of oppressive treatment I am anxious to stop.
If you make the rule that an affectionate parent is not to be interfered 221 with, such an affectionate parent will not wish to keep the child in misery when the child can manifestly be much better treated in an asylum. The affection of a parent is the safeguard where suitable provision cannot be made that the child will be handed over, but unless you make the character of the parent and not the resources of the parent the test your Bill is in my view defective. I think my object might be reached in two ways. One is the way I propose in my Amendment on the Paper, but which should be put in a slightly different form because you do not need the proviso, namely: "Such consent shall not be deemed to be unreasonably withheld if the judicial authority is satisfied that the parent or guardian in good faith desires the well-being of the defective person." Or you might do it by amending the Home Secretary's Amendment by leaving out the words "unable or unwilling to make suitable provision for the care" and adding instead thereof "is culpably indifferent to the well-being."
§ Lord HUGH CECIL
I conclude, as a matter of form, by moving that Amendment. I do not wish to take up time in discussing both Amendments if the Home Secretary would be good enough to say that he would consider either of them. On reflection, I would prefer this last form of words. It would make the Clause read, "unless it is proved to the satisfaction of the judicial authority that the parent or guardian is culpably indifferent to the well-being of the defective." I need not say I do not attach any special importance to the particular words, but the point is I am anxious to make the character of the parent the test, and that the parent who is really doing the best for his child should be allowed an absolute veto, and that a negligent, cruel, or drunken parent, or one who is not doing his best for the child should not be allowed an absolute veto. In order to bring the matter to an orderly conclusion I beg to move the Amendment to the Amendment which I have read out, namely, to leave out "unable or unwilling to make suitable provision for the care," and to insert "is culpably indifferent to the well-being."
§ Mr. McKENNA
I am going to make a suggestion if I may be allowed to do so, before the question on the Noble Lord's Amendment is put from the Chair. As I 222 expected would be the case, I have had considerable assistance from speeches which have been made with regard to this Amendment, and it appears to me, on reflection, that on the whole I should do better to keep a modified form of the words as they now stand in the Bill, and not move to leave out those words in order to substitute my own words. With the consent of the House I would rather the Clause should read as follows:—"Unless it is proved to the satisfaction of the judicial authority that such consent is unreasonably withheld, or that the parent or guardian cannot be found." If the House agrees to put in those words it would meet the wishes of my hon. Friend (Mr. Wedgwood), who desires in the first instance that the onus of proof should be put on the petitioner. We could then discuss whether, by taking the Amendment of the Noble Lord the Member for Oxford University, or some other Amendment, we could define what is unreasonable. Therefore, I beg to ask leave to withdraw my original Amendment and to leave out the words as before, but to substitute "it is proved to the satisfaction of the judicial authority that such consent is unreasonably withheld, or that the parent or guardian cannot be found." I therefore move to leave out the words from "unless" to "and" ["unless in the opinion of the judicial authority such consent is unreasonably withheld, and."]
§ Question, "That the words proposed to-be left out stand part of the Clause," put, and negatived.
§ Mr. McKENNA
I now beg to move to leave out the words "in the opinion of the judicial authority such consent is unreasonably withheld; and," and to insert instead thereof the words, "it is proved to the satisfaction of the judicial authority that such consent is unreasonably withheld or that the parent or guardian cannot be found."
§ Mr. WEDGWOOD
I do not quite understand where we are. If these words are put in then I think we must have the Amendment suggested by the Noble Lord the Member for Oxford University, because without it the Bill, in my opinion, would be no better than it was before, and I should have to oppose my right hon. Friend's Amendment. At present we have had no assurance that we shall have some such words as the Noble Lord has suggested, and as the matter has been shifted about so often I should like to know 223 definitely what we are going to get before we vote to put in the words now moved lay the Secretary of State.
Sir F. BAN BURY
I would suggest that it would be in order to move my Noble Friend's words as a proviso.
§ Mr. WEDGWOOD
Yes, but if the words be not accepted by the Government they will not go in the Bill. The present words of the Home Secretary are not anything like so good as the Amendment which the right hon. Gentleman had on the Paper.
§ Mr. McKENNA
If my hon. Friend wishes to have an assurance I can give it him. If the Noble Lord agrees, the following words can be added to the Amendment: "Consent shall not be deemed to be unreasonably withheld if withheld with the bonâ fide intention of benefiting the defective."
§ Lord HUGH CECIL
I must confess that it is rather late at night to attempt to appreciate the exact force of the words, but on the face of it the Amendment does make a decided improvement in the Bill, and I think I see no reason for resisting it.
§ Mr. McKENNA
I will move after the words last proposed to add the words "but consent shall not be deemed to be unreasonably withheld if withheld with the bonâ fide intention of benefiting the defective." I think that fairly carries out the purpose of the Noble Lord.
§ Mr. McKENNA
I think my hon. Friend will find the form of words satisfactory. I think I had better move the whole words in an inclusive form as follows: After "unless" to insert "it is proved to the satisfaction of the judicial authority that such consent is unreasonably withheld, or that the parent or guardian cannot be found, but consent shall not be deemed to be unreasonably withheld if withheld with the bonâ fide intention of benefitting the defective."