§ Sir M. MACNAGHTEN
I beg to move to leave out the Clause.
There are various reasons in support of this proposal. One and perhaps a sufficient reason is that the Clause as it appears in the Bill seems to me to be unintelligible. I hope that the Chancellor of the Duchy, who is so much enamoured of this Bill that he will not have any alteration made in it at all, will do me the honour of giving me his attention and do his best to lighten the darkness in which I find myself over this Clause. I do not think that I can be alone in regard to this matter. I think most hon. Members who have read this Clause must find themselves equally in the dark as to what it means. It provides for a case where a summons has been granted under the principal Act as amended by this Act. Let us therefore suppose that the wife 1711 has obtained a summons calling upon her husband to show cause why a separation and maintenance order should not be made against him. It goes onand the person against whom the summons is granted cannot be found.Of course, one can imagine such a state of affairs. Very often people who are wanted cannot be found. Then it proceeds to say that in those casesThe Court may upon a sworn information by the applicant grant a warrant for the arrest of that person.That does seem silly on the face of it. The person cannot be found, and that is the reason for issuing a warrant for his arrest. If you cannot find him, what is the use of issuing a warrant for his arrest?
§ Sir M. MACNAGHTEN
I am glad of the interruption of the Noble Lady, because it explains the reason she does not see how silly is this Clause. Who are the persons to whom the service of a summons issued by a Court of Summary Jurisdiction is entrusted? Am I not right in saying the police? It is the police who have to serve the summons. May I put another question? Who are the people who, when a warrant for the arrest of a person has been issued, have to execute the warrant? Surely the Chancellor of the Duchy will agree with me that it is the police who have to execute the warrant. That is to say, it is the same person who has to execute the warrant as has to serve the summons. If the policeman cannot find the defendant, respondent, or husband, whatever you like to call him, when he is provided with a summons, why should he be able to find him when he is provided with a warrant? That is the conundrum which I present to the Chancellor of the Duchy. Let him tell the House why the policeman, having got a warrant in his pocket instead of a summons, should be better able to find the man he wants. I hope that I have made the question clear. I have not been very fortunate to-day, but on this occasion I do hope that I am making myself perfectly clear. I want to know why a policeman who cannot find a man when he has a summons should be able to find him if he has a warrant. If either the Chancellor of the Duchy or the 1712 Noble Lady can answer that question I shall be satisfied. If I am right in thinking that the giving of a warrant to a policeman will not enable him any better to find the person against whom it has been issued, then am I not also right in declaring that this Clause, as it appears on the Paper, is unintelligible and useless?
§ Sir M. MACNAGHTEN
That is to say it will be the duty of the police to search through the area covered by the address, for the purpose of finding the man.
§ Mr. R. RICHARDSON
They have to do more than that; the whole force is practically in search of the man, wherever he may be.
§ Sir M. MACNAGHTEN
Are we to take it then that the policeman can find the man when he has got a warrant for his arrest, although he may not be able to find him when he has merely got a summons? Is it merely a question of giving instructions to the police to go to the proper place to execute the warrant? Are there not great dangers in a Clause framed in this way? I hope I shall not be guilty of any offence if I suggest it is possible that a wife may not be right in this matter. You have really to suppose the possibility of a case where an applicant makes an application which is not justified. Are you going to assume that every application made under this Bill will be well founded? If so, why trouble about fresh legislation or about the Courts at all? Anybody who wants a separation order under such circumstances would be able to get it. But it must be admitted there may be cases where an applicant asks for an order to which she is really not entitled. Take the case of a wife who is maliciously-minded towards her husband. Can the right hon. Gentleman not conceive the case of a woman who has got into such a frame of mind that she is really malicious against her husband? She takes out a summons against him; she purposely gives a wrong address; the 1713 police, acting on the instructions of the Home Office, go to that address, and, being unable to find the man, return and report that they cannot serve the summons. Thereupon a warrant is issued.
§ Sir M. MACNAGHTEN
I am assuming a case in which the wife is maliciously-minded. Perjury is not altogether an unknown offence even in Courts of Summary Jurisdiction. The summons having been issued and attempted to be served at a wrong address, the wife then makes an application for a warrant which is issued. The man may be in some distant part of the country. It may be that his wife is a drunken, worthless person from whom he has fled, yet this poor man is going to be arrested and dragged back in custody to London because of the malicious feeling of this woman. Is that not an entirely unnecessary provision? Surely some method of substituted service might be adopted where it is found impossible to serve the summons. I venture to assert that this provision may be a cause of great injustice, and that it could be worked very improperly in the hands of a malicious wife.
§ Mr. GREAVES-LORD
I beg to second the Amendment.
I do so because I think that this Clause is one of the most serious attacks upon liberty which has yet been made. We have not yet arrived at quite the stage when, there being no allegation of crime, but merely a civil dispute between the two parties, one of those parties can cause an infraction of the liberty of the other merely in order that that other party may be before the Court when the suit is heard. That is an extremely dangerous principle to admit into our public life, and it is one which I hope the House will hesitate a long time before it sanctions. There is, as my hon. and learned Friend the Member for Londonderry (Sir M. Macnaghten) has shown practically no reason for this infraction of liberty, and it is, of course, a very serious infraction. May I point out exactly what the position is in which we are asked to give the Court the right to arrest a man? A summons is granted upon an unsworn information, and usually the particulars supplied are by no means full. An information is lodged and a summons is granted. Then this farcical 1714 process is gone through—because, after all, it might very well be a farcical process. There is no safeguard as to what is the meaning of "cannot be found." Does it mean cannot be found in the particular town? Does it mean cannot be found in the country? If it means cannot be found in the country, then, of course, the warrant will not matter very much, because, if the man is not in the country, there is no great advantage in getting a warrant, and it will not hurt him, except, perhaps, that it may prevent him from coming back to his native shores. It is not going to help in getting hold of the man when he is out of the country.
The summons is issued, and then there is a sworn information. What will that sworn information be? I suppose it will be a sworn verification of the complaint upon which the summons was issued, together with a sworn statement that the man cannot be found. That is not a very difficult oath for a great many people to take, and certainly it would not be a very difficult oath for a woman or a man who wanted to vent very serious spite against his or her partner in life. It has been assumed throughout the discussion, so far, that this merely affects the liberty of the man, and, therefore, there are chivalrous people in this House who think that, because it is only a man who may be arrested, it really does not matter. They have not really realised that a woman can be arrested under this Clause as well, and the circumstances in which a woman may be arrested are very serious. As we know, a man may get a Separation Order on the ground that his wife is an habitual drunkard, and, when this Bill is passed, he will be able to get an Order on the ground that she is addicted to drugs. When this Bill is passed, he will be entitled, if he proves his case before the magistrates, to get a Separation Order on those grounds. Suppose that a man has been a brutal husband, and, by reason of his brutality, has driven his wife to leave him. She has left him, and she has taken care to put herself in such a position that she cannot easily be found. What does the man do? One can quite imagine that, in these circumstances, some men would stick at nothing in order to put that wife to all the indignity that is possible. There are men of that description. What would happen? As this Bill stands, the man, in those circumstances, has merely to go before the magistrate and make a 1715 complaint that his wife is an habitual drunkard or a drug-taker. Then an effort is made to find the wife, but, by reason of the fact that she fears the brutality of her husband, she cannot easily be found.
The return will very quickly be made that she cannot be found, and the next step in the proceedings is that he goes before the magistrate and makes a sworn information—which a man of that character will not shrink from making—that, first of all, his wife is an habitual drunkard, and, secondly, that she cannot be found; and there and then a warrant will be issued for the arrest of the wife, and, as my hon. and learned Friend has pointed out, all the police forces of the country will be set looking for this woman, whose only desire is to keep away from the brutality of the man who is seeking to put indignity upon her. The warrant must be executed; the police must do all that they can to drag the woman from some place where, probably, she has gone for shelter from his brutality, where she is living with her children, where she is keeping her children as best she can, and where she asks nothing better than to be left in peace, sheltered from brutality. By reason of this Clause the man will be able to drag her from her haven and bring her into the full light of a Police Court, in order that there he may vent his spite upon her. It may be said that this is equal citizenship. I suppose it is, for it is an equal deprivation of liberty for women as well as men; but it is an equality that none of us wants. What we want is equal protection before the law, and not equal assaults upon liberty.
Take another matter—the case of the wife against the husband. Take the ground of desertion. It is an answer to a complaint on the ground of desertion that the woman has made the man's life intolerable. That has always been, and still is, an answer to a complaint on the ground of desertion. If a woman brings proceedings against her husband and claims that he has deserted her, that he has gone to live apart from her, the husband may say, "That woman made my life absolutely intolerable. It was impossible to live with her." Quite short of misconduct on her part, she may have behaved in such a way as to make his life absolutely intolerable and miserable, and that is a complete answer to a complaint 1716 of desertion. But that is a position which can only be arrived at by having the matter tried out before the police magistrates. Assume an instance of that kind, where a man's life has been made absolutely intolerable. He leaves his wife. She may be a woman with plenty of money to support herself. He goes away, and he asks nothing better than to be as far from her as he possibly can be. Under this Clause she can—and that is exactly the class of woman who would do it—go to the magistrates and lay a complaint that her husband has deserted her. There is no question of perjury involved; she lays a complaint saying that her husband has left her, that he went away on such-and-such a date, that she has heard nothing from him since, and does not know where he is or anything else.
She gets a summons, and the summons is returned "Not found." She then goes and swears an information. It is not a question of fact in these circumstances; it becomes a real question of law, and she can make that information without the slightest danger of being charged with perjury. It is a matter, very largely, of opinion whether it is desertion or not. Whether it is desertion depends upon the magistrates being convinced ultimately that the circumstances were such that the man was driven to leave his wife. In these circumstances all that she swears is, "This man left me on such-and-such a date, he has never returned to me, and I have never heard anything from him since." That is primâ facie evidence of desertion. She swears that, and also that she had a summons against him and that he cannot be found. Under this Clause, simply on that information, that man may be arrested and brought in custody before the Police Court. I venture to think that is a very serious inroad upon the liberties of the people of this country, and something which they will not sanction. I could understand it if there were any real advantage to be obtained from it, but let us see what the position is. Suppose that the summons is served. Then, if the man fails to obey, the case can be gone on with, and it would be properly conducted. The magistrates would inquire carefully into the matter and sift it as completely as possible in the man's absence, and they may then issue a warrant or an enforcement order. But, quite apart from that, if you want to deal 1717 with such a case and get the case heard in order that you may get a warrant to enforce it, then let some provision be framed for substituted service, which will, at any rate, give a real chance of getting the man before the tribunal first of all before the case is heard. Then if, in those circumstances, you fail, you will not have merely a sworn information, upon which there is no cross-examination. That is taken before a magistrate. He has no right to disbelieve the person who has made a sworn information. The sworn information is as to facts, and it may also be, in the case of desertion, something which is very much a question of opinion.
But he has no opportunity of cross-examining upon that sworn information. There is none of the material upon which there may be cross-examination or anything of that kind. But if the case comes before a magistrate and is going to be fully heard in the absence of a party, one's experience of magistrates is that under those circumstances, when they are dealing with a case in the absence of a defendant, they are extremely careful to cross-examine themselves, and the clerk to the magistrates will ask questions which will find out whether the woman or the man is speaking the truth, they will have a full opportunity of considering the demeanour of the witnesses, and what is more, before they can make an order, in many cases they will demand corroboration by witnesses, and therefore the matter, as far as it possibly can be in the absence of a defendant, may be practically and thoroughly sifted in a Court of Justice. When they have done that and have made the order you can get your warrant for the enforcement of it, and tinder those circumstances there is justification for getting the warrant. But the position that would result under this Clause is merely that you bring the defendant before the Court in order to have the case heard in his presence. You have no power to keep him in custody after the order has been made. Directly the order is made he walks out of the Court a free man. In fact I do not know exactly how long you are going to keep him in custody or what you are going to do. It says he may grant a warrant for the arrest of that person. What is going to happen then? You may arrest him. Have you to bring him before the Court under arrest? If so, having brought him before the Court are you to keep him 1718 under arrest while he is before the Court? It is a rather extraordinary thing that you should keep in custody a man against whom there is no charge of crime and who has committed no crime. It is a new principle in our law that you should bring a man who is merely a party to a civil dispute and keep him in custody while the case is heard. When is the custody to cease? It is perfectly clear that it must cease, if not before, the moment the order is made, because the magistrate has no power at all to keep him in custody after the order is made.
But take something else. Suppose he is brought in custody to the Court and the applicant is not present, because after all if you issue a warrant for a person who cannot be found you do not know exactly on what day he is going to be found, and therefore it may be that on the day he is brought before the Court the applicant is somewhere else altogether and cannot be found on that day. She may not be available next day or for a week.
§ Mr. SPEAKER
The hon. and learned Gentleman is repeating what was said by the mover of the Amendment.
§ Mr. GREAVES-LORD
I am merely asking what is going to happen. Is the man going to be remanded in custody or to be admitted to bail? But take a further case Take the case from the moment the order is made. There is no power then to keep him in custody. If he is the kind of man who is not going to obey an Order of the Court and who has been keeping out of the way solely because he does not want to support his wife, directly that order is made he can get out of the country, and the wife will have got no advantage at all by the procedure of bringing him up on warrant. That is exactly the class of man for whom a warrant of this kind will be necessary. The very fact that the woman has issued a warrant against him and has arrested him before proving the charge against him is all the more likely to make him stubborn and to make him come to the conclusion that under no circumstances will be obey the order. The result is that the moment an order is made in circumstances of this kind the man will clear out of the country, and then there will not be the slightest chance of enforcing 1719 the order. This Clause is stupid in its drafting and is entirely silly in any idea that it can ever be made practicable. It is hopelessly impracticable and the only purpose it can really serve is to enable spiteful people to use the machinery of the courts for the purpose of depriving people of liberties which they are entitled to enjoy, and under these circumstances I hope the House, which has always been the guardian of the liberties of the British people, will take a stand against a Clause of this kind and see that it is not put on the Statute Book.
§ Colonel WEDGWOOD
The mover of the Amendment has accused me repeatedly of being hard-hearted and refusing to make any variation of the Bill. I hope he will set it down to my credit that, having listened with the greatest attention to his arguments and that of his seconder, they have convinced me that a strong case has been made out. I hope they will realise that we are giving something away in accepting this, and will facilitate the remaining Clauses of the Bill being passed. We could spend a long time and make a strong case against the arguments put forward, but I do not want to waste the time of the House but to get on with the Bill. Therefore I accept the Amendment.
§ Question, "That the words proposed to be left out, to the word 'and' in page 2, line 26, stand part of the Bill", put, and negatived.