§ Sir ELLIS HUME-WILLIAMS
I beg to move, in page 2, line 2, to leave out the word "England" and insert instead there of the word "India."
After the interesting discussion in which the House has just been engaged, I fear this subject will seem rather dull, but I think I shall be able to move, in a very few words, the Amendments in my name, and I am particularly desirous so to do, because I do not want, if I can help it, to obstruct the speedy passage of the Bill into law. It is to us lawyers a question of very great importance, and it is an entirely new question which is raised in this Bill. The first Clause provides that the Courts in Indiashall have jurisdiction to make a decree for the dissolution of a marriage, and as incidental thereto to make an order as to damages, alimony, or maintenance.Those are the matters which follow a decree in the English Courts. They are matters which provide for the future of the innocent party at the expense of the guilty party—custody of children, and costs, where the parties to the marriage are British subjects domiciled in England or in Scotland.That is in our law an entirely new departure. The Courts have been very careful always in this country to confine their divorce jurisdiction to those who are domiciled in this country. The ques- 2047 tion of domicile is a matter which has received very careful consideration from the highest Courts of the Realm, and the accepted law which has emerged is this, that the Courts will exercise no jurisdiction except over people who are domiciled in this country, that is, who have made their home here, which is not an unjust provision. If a man lives in a place and has made his home there it is just that on questions relating to his domestic relations, his divorce and things that belong to his status, should be regulated by the laws of the country where he has made his permanent home.
This Bill contains a departure, and the first departure, from that rule, and it is included in Clause 1. When we come to the proviso in (1, a) we find that when an Indian Court is taking into consideration a divorce case brought before it by a British servant engaged in India, residing in India, they shall be allowed, for the first time, to ignore the law of this country, which is, that jurisdiction is confined to those who are domiciled in this country, and they shall have power to deal with British subjects domiciled in England or in Scotland. What is the law which they are to apply under this new departure, under this new law, to the people with whom they are dealing in India, although they are domiciled in England or Scotland? It provides that(a) the grounds on which a decree for the dissolution of such a marriage may be granted by any such Court shall he those on which such a decree might be granted by the High Court in England according to the law for the time being in force in England.The object of my Amendment is to leave out the word "England" and to insert instead thereof the word "India" in paragraph (a), so that the paragraph would read:The grounds on which a decree for the dissolution of such a marriage may be granted by any such Court shall be those on which such a decree might be granted by the High Court in India according to the law for the time being in force in India.The reason that underlies my suggestion is that it so happens that the law of divorce in England and Scoland is not the same. The Scottish Courts have a rather easier system of divorce than we have in England. If this Bill stands as it is drawn, the result will be that, supposing a Scotsman domiciled in Scotland, 2048 that is, a man whose home is in Scotland, but who resides in India, comes under the operation of this Bill in India, there will be applied to him the law of England, which is not the same as the law of his own country. It is not the same law that would be applied if he were at home in Scotland, and you have this curious result, when he, as a Scotsman, goes before the Courts in India, be will be dealt with according to English law, while if he can afford to come to Scotland he will be dealt with according to Scottish law, which is 'not the same. If he remains in India he will have one form of law, if he goes to Scotland he will have a totally different law. There seems to be a hardship in that, and there has been considerabe opposition in Scotland to the proposal.
If people invoke the laws of the country where they reside, it is only reasonable to say that they shall be subjected to the laws of that country. There is a divorce law in India. I have made inquiries and I understand that the Indian Courts have a law not unlike that of England, perhaps formed upon it, by which they can divorce people who are at present domiciled in India. That is the existing law. I believe the jurisdiction remains with the District Judges, and that there is an appeal to the Court of Appeal in India. Therefore, they are not without jurisdiction and a knowledge of the law. What I submit to the House is this, that if you are going to make this a really workable Bill, it is reasonable to say to Englishmen and Scotsmen who are domiciled at home but who are employed in India, that if they are going to resort to the Indian Courts, then they must submit to the law of the country of the Courts to which they go. It is always inconvenient for the Courts of one country to decide cases according to the laws of another country, and that would happen here if the Bill stands as it is.
Another curious position will arise under the Bill as it stands. In the first Clause it says that when the Court in -India has pronounced its decree, according to English law, it is to have the right to order alimony or maintenance. According to English law, that is to provide for the innocent party, and the allowance or the sum secured is to be paid by the respondent, that is by the 2049 guilty party. That is not the law of Scotland. In order to provide for the hardship that this will obviously entail, the Lord Advocate told us that rules are to be framed—it is in Sub-section (4, d).for preventing, in the case of a. decree dissolving a marriage between parties domiciled in Scotland, the making of an order for the securing of a gross or annual suns of money;In Clause 1 the Bill expressly states that the Court is to have the power to grant to the innocent party an order securing a gross or annual sum of money, and then in paragraph (d) you find that rules may be made preventing them doing so. That seems a very clumsy way of doing it, to allow it to be specified in terms that the Court which grants the decree is to be allowed to give the innocent party a sum of money, which is to be secured, and at the same time to form rules which are to provide that when the parties happen to be domiciled in Scotland they are not to do anything of the kind. That is one of the curious anomalies that results from the way the Bill is framed. Therefore, I submit that it is reasonable, where you are making this departure from the law, when you are granting the Indian Court a right which I think they should have —there are many public servants in India, and it is desirable that they should get their remedy in India, where the offence has been committed and where the evidence is to be obtained—it is desirable that they should resort to the Indian Courts, and, therefore, the Bill is much needed and has my entire support; but I think that if you make this serious departure from long-established and well-considered law, which is that the domicile of the parties should regulate their divorce—if you depart from that, it is only fair that you should submit to the laws of the country. Scotsmen have a very legitimate cause of grievance. They say, "You are going to allow people who are domiciled in England or Scotland to be treated—"
§ The CHAIRMAN
I think the hon. and learned Gentleman is now anticipating another Amendment which has been handed in, relating to Scottish juris diction as a separate issue.
§ The UNDER-SECRETARY of STATE for INDIA (Earl Winterton)
Perhaps it would be for the convenience of the Comittee if I replied at once to the point put by my hon. and learned Friend. I do not propose to reply to the reference which he made to the Scottish aspect of the Bill, which is to be raised on a specific Amendment later, and to which it is more appropriate that the Lord Advocate should reply. I think I can dispose of my hon. and learned Friend's Amendment in a very few words. In the first place, the Amendment, as drafted, would make nonsense of the Bill. It proposes to alter the words "High Court in England" to the words "'High Court in India." There is no one High Court in India. There are a number of High Courts in the various provinces. The Amendment should read "High Courts in India." Apart from that, I do not think that my hon. and learned Friend could have appreciated what the effect of his Amendment would be. The preamble of the Act contains the words:An Act to confer on Courts in India and other parts of His Majesty's Dominions jurisdiction in certain cases with respect to the dissolution of marriages, the parties whereto are domiciled in England or Scotland.That is to say, it applies to Europeans who are resident in India and are domiciled in this country. The effect of the Amendment would be exactly the opposite of that which my hon. and learned Friend is seeking, according to the speech which he made. It, would, for example, allow India to make its own divorce laws, without any control by this House, for Europeans not domiciled in India but resident in that country. That is the first point. Not only would it do that, but as the hon. and learned Gentleman has not moved to leave out Sub-section (3) of Clause 1 it would mean that these decrees given in India under a law over which we would have no control would have to be registered in this country and have effect in this country. My right hon. Friend and the Government of India have been careful not to invade the principle of domicile more than it has already been invaded by the Act of 1869. It is only by a judgment made in 1921 that we learned for the first time that these decrees are not valid in England; they are still valid in India. I think my hon. and learned Friend, 2051 will see that his Amendment does not secure what he has in mind. It would be the most extraordinary and inconvenient way to proceed, this particular departure from the principle of domicile never having been recognised before in this country or in the Empire. The other departure from the principle has been recognised by the Act of 1869, but his proposal has never been recognised in any Act of Parliament, and I certainly, on behalf of the Government, should not agree to it.
§ Amendment negatived.
§ Mr. NEIL MACLEAN
I beg to move, in page 2, line 3, after the word "England," to insert the wordsor the Court a Session in Scotland according to the law for the time being in force in Scotland.The last night when this Bill was before the House the Lord Advocate put forward certain pleas in defence of the Bill as it stands and against objections that were taken to the Bill as it stands by Members representing constituencies in Scotland. I want to submit that the two points he made against the objection raised to the Bill were, in his opinion, fundamental and sentimental. May I put it to him—he shakos his head. He can probably correct me if I have interpreted what his position was. It is not sentimental to the extent of the fact of a man being domiciled in Scotland. That becomes purely legal. It states in the Bill that this is for the purpose of parties who are domiciled in England or Scotland.
The purpose of this Bill is to bring an individual domiciled in Scotland outside the law of Scotland and inside the law of England so far as divorce goes. I want to put it to the Lord Advocate, who is here to look after the legal interests of Scotland, that he might just as well say that anyone who is living in Scotland at the present time, and who is seeking a divorce would have to appear before the Court of Session in Edinburgh when that individual ought, though domiciled in Scotland, to have his divorce settled by the Courts of England.
The right hon. and learned Gentleman smiles. I put it to him frankly that if he is going to destroy the law as it applies to an individual domiciled in Scotland, in a Bill intended to validate divorces in India, he might as reason- 2052 ably argue that the same principle could be applied to a person actually resident in Scotland who is seeking a divorce. The Bill as it stands is resented by lay and legal opinion in Scotland and if the Lord Advocate cares to canvass the advocates with whom he is acquainted in Edinburgh he will find the vast majority are opposed to the Bill as it stands. That view is held by the majority of the legal fraternity all over Scotland. They are in favour of bringing in a proposal of this kind in some way and if the Amendment which I move does net effect that purpose, then I hope other words will be found to bring this Bill into line with the law in Scotland as it applies in the Court of Session.
The Lord Advocate is doing this with his eyes open. He is a Scotsman, but he does not represent Scotland. He sits for an English constituency and he is supposed to represent the law of Scotland. I am not saying that in any belittling sense, but the right hon. and learned Gentleman is domiciled in Scotland and I suggest that he would take it very hard if, because he represents a constituency in England, he were, by a Bill of this sort, to be brought under the law of England. I put it to the Lord Advocate that he ought to take cognisance of and have respect for the opinion of Scotland, not merely sentimental but legal, and he ought to agree to insert such words in the Bill as will cover the point I am making. Scottish opinion is becoming restless because of the constant frittering away of Scottish rights established by ancient Scottish laws and customs. This is another attempt on the part of the Government to cut deeper into the laws of Scotland and the rights of the Scottish people, and I am convinced that sooner or later there will be a heavy reckoning. If the Lord Advocate is prepared to meet us by inserting words on the Report stage to cover this point I am prepared to allow the Bill to pass its present stage.
§ The LORD ADVOCATE
This point was fully debated on the Second Reading and the Committee will excuse me if I deal with it somewhat briefly. Some fresh reasons and some interesting ones have, however, been suggested on this occasion. It has been said, and I gladly accept the challenge, that I ought to protect the legal interests of Scotland.
§ 11.0 P.M.
§ The LORD ADVOCATE
It has further been suggested that my attitude in this matter is caused to some extent by my representation of an English constituency. It has always been a matter of pride to Scotsmen that their sway and their dominion are not confined to Scotland itself. Nowhere more than in India will you find a more striking illustration of that, and it is just because I am prepared to consider the interests of Scotsmen in not merely the narrow bounds of geographical Scotland that I am heartily supporting and helping to promote this Measure. I am sorry to observe there is still much misunderstanding as to the facts of the situation. I agree it may not have been made sufficiently clear on Second Reading, but I beg the Committee to observe that what this Bill does is to carry on something which has existed for years and is part of the existing law for domiciled Scotsmen. So far from cutting deeper into the existing system, we are keeping more back for Scotland, because the conditions on which this facility, which has existed since 1869, are being cut down and restricted under this Bill. Therefore, if this Bill does anything at all, it narrows the situation.
It is true that I referred to one of the points dealt with in the Second Reading Debate as mainly a sentimental objection, and to the other as a practical question, and it is a practical question that is raised here. This Amendment accepts that the Bill shall apply to domiciled Scotsmen, and the only question that it raises is whether the Scottish law of matrimonial relief is to be applied under the Bill in India. That is purely a practical question, as I endeavoured to explain the other night, and as we are advised by those who do know the conditions of the Courts and Bars in India, that it is not practicable at the present time and under present conditions to get the complete code of Scottish law administered in India, we are driven to continue the existing system: of the application of the principles of English law.
I agree that if it were practicable to have the full code of the Scots matrimonial relief administered in India, I would have been the first to have seen 2054 it put in the Bill, but no amount of sympathy and changing of words will get over the practical difficulty. I have no doubt that, if in the course of years the members of my profession, who have not apparently taken advantage of opportunities to the extent to which they might have done, do so, and the result is that you can get the full code of Scottish matrimonial relief administered, it may well be that we might alter the conditions and get it put on the most satisfactory basis,, but I beg the Committee to believe that this Bill continues, but on a narrower and stricter basis, an existing system.
only want to add this—and I do not think this has been fully appreciated by the Mover of the Amendment or the previous Amendment—that under Subsection (3) of Clause 1, the decree of dissolution en its registration in Scotland, has all the effects of a Scottish decree. Therefore, as soon as the decree acts to Scotland—and it cannot be effective in Scotland before—and gets registered there, it has the effect of the Scottish decree. Therefore, it is wise to make rules to see that in the intervening stage there is nothing put in with regard to something which would be consistent with Indian practice but inconsistent with Scottish practice. It is an obvious matter of machinery to prevent any complication when the decree comes to be registered in Scotland. This does not prevent a Scotsman resident in India from applying for a remedy in Scotland if he prefers it. Therefore, on the ground of impracticability, it is impossible for the Government to accept this Amendment.
§ Mr. MACLEAN
If a Scottish lawyer, one of the same standing in the legal profession in Scotland as the right hon. Gentleman were competent to take in hand a case in India, so far as the methods apply to the Courts of India permitted him to appear on behalf of the case, is he to be allowed to appear as a Scottish advocate in the Court in the case of a Scotsman being tried under Indian law?
§ The LORD ADVOCATE
No, of course not. Consider what the procedure would be to take a Scottish counsel in order to plead with members of a Bar unacquainted with the Scottish law!
§ Mr. MACLEAN
Then that settles the matter. The arguments of the Lord Advocate are not arguments against the Amendment, but are really arguments in favour of my Amendment.
§ Mr. MAXTON
Do I understand that members of the Scottish Bar are placed in an inferior position in India under this Bill?
§ Mr. MAXTON
Are the members of the Scottish Bar placed in an inferior position in comparison with the members of the English Bar in India?
§ The LORD ADVOCATE
No. I understand you must be a member of the Indian Bar before you can appear at the Indian Bar. Doubtless, if a member of the Scottish Bar, who has confidence in himself, goes out and satisfies whatever preliminaries are necessary to join the Indian Bar, he can do so.
§ Sir R. HAMILTON
I understand that the two main grounds stated by the Lord Advocate are that, since 1869, the law of England has been applied to Scotsmen
§ domiciled and resident in India, and that being so, we should continue that. I rather suggest that, if we have erred in the past, we should change that now. His second ground is that it would be impracticable for the High Court in India to take evidence under Scottish law. It seems to me to be rather a strange argument. There are plenty of Scottish barristers in India and the High Court in India could take evidence under Scottish law and apply it.
Supposing a couple in India, domiciled in Scotland, were married in India, and their marriage settlement was made in India. according to Indian law, then that a divorce decree was given, and that it was registered in Scotland, and, as the Lord Advocate has has told us, that has the effect of wiping out the erring spouse—
May I ask whether a divorce decree of this kind, registered in Scotland, would have what I might describe as the Scottish effect on the settlement which was made in India according to Indian law?
§ Question put, "That those words be there inserted."
§ The Committee divided: Ayes, 70 Noes, 144.2057
|Division No. 546.]||AYES.||[11.15 p.m.|
|Barr, J.||Hayday, Arthur||Riley, Ben|
|Batey, Joseph||Hayes, John Henry||Saklatvala, Shapurji|
|Benn. Captain Wedgwood (Leith)||Henderson, T. (Glasgow)||Scrymgeour, E.|
|Bromfield, William||Herbert, Dennis (Hertford, Watlord)||Short, Alfred (Wednesbury)|
|Bromley, J.||Hirst, G. H.||Sinclair. Major Sir A. (Caithness)|
|Brown, James (Ayr and Bute)||Hore-Belisha, Leslie||Sitch, Charles H.|
|Buchanan, G.||Hudson, J. H. (Hudderstleld)||Slesser, Sir Henry H.|
|Charleton, H. C.||Jenkins, W. (Glamorgan, Neath)||Smith, Ben (Bermondsey, Rotherhithe)|
|Compton, Joseph||John, William (Rhondda, West)||Stephen, Campbell|
|Cowan, D. M. (Scottish Universities)||Johnston, Thomas (Dundee)||Sullivan, Joseph|
|Dalton. Hugh||Jones, Morgan (Caerphilly)||Sutton, J. E.|
|Day, Colonel Harry||Jones, T. I. Mardy (Pontypridd)||Taylor, R. A.|
|Dunnico, H.||Kelly, W. T.||Thomas, Sir Robert John (Anglesey)|
|Edwards. C. (Monmouth. Bedwellty)||Kennedy, T.||Varley, Frank B.|
|Fenny, T. D.||Kirkwood, D.||Watson, W. M.. (Duntermline)|
|Graham, D. M. (Lanark. Hamilton)||Lindley, F. W.||Welsh, J. C.|
|Grenfell, D. R. (Glamorgan)||Lunn, William||Westwood, J.|
|Grundy, T. W.||Murnin, H.||Wheatley, Rt. Hon. J.|
|Guest, Haden (Southwark, N.)||Owen, Major G.||Wiggins. William Martin|
|Hall, F. (York, W.R., Normanton)||Paling, W.||Williams, T. (York, Don Valley)|
|Hall, G. H. (Merthyr Tydvil)||Parkinson, John Allen (Wigan)||Windsor, Walter|
|Hamilton. Sir R. (Orkney & Shetland)||Potts, John S||Young. Robert (Lancaster, Newton)|
|Hardie, George D.||Purcell, A. A.|
|Harris, Percy A.||Richardson, R. (Houghton-le-Spring)||TELLERS FOR THE AYES.—|
|Mr. Nell Maclean and Mr. Maxton.|
|Acland-Troyte, Lieut.-Colonel||Alexander, C. E. (Leyton)||Barnett, Major Sir Richard|
|Agg-Gardner. Rt. Hon. Sir James T.||Amery, Rt. Hon. Leopold C. M. S.||Bethel. A.|
|Albery, Irving James||Balfour, George (Hampstead)||Birchall. Major J. Dearman|
|Bourne, Captain Robert Croft||Headlam, Lieut.-Colonel C. M.||Roberts, E. H. O. (Flint)|
|Bowyer, Captain G. E. W.||Hendereon. Capt. R. R. (Oxford, Henley)||Roberts, Sir Samuel (Hereford)|
|Briscoe. Richard George||Hennessy, Major J. R. G.||Ruggles-Brise, Major L. A.|
|Broun-Lindsay, Major H.||Herbert,S.(York. N. R., Sear. & Wh'by)||Rye, F. G.|
|Burman, J. B.||Hogg, Rt. Hon. Sir D.(St.Marylebone)||Samuel, A. M. (Surrey, Farnham)|
|Carver, W. H.||Hope. Sir Harry (Forfar)||Samuel, Samuel (W'dsworth, Putney)|
|Cazalet, Captain Victor A.||Horlick. Lieut.-Colonel J. N.||Sandeman, A. Stewart|
|Charteris, Brigadier-General J.||Hume, Sir G. H.||Sanderson, Sir Frank|
|Chilcott, Sir Warden||Huntingfield, Lord||Savery, S. S.|
|Christie, J. A.||Hutchison, G. A. Ciark(Midl'n & P'bl's)||Shepperson, E. W.|
|Clayton, Q. C.||Jacob, A. E.||Slaney, Major P. Kenyon|
|Cochrane, Commander Hon. A. O,||Jephcott, A. R.||Smith, R. W. (Aberd'n & Kinc'dine. C.)|
|Cockerill, Brig.-General Sir G. K.||Jones, Henry Haydn (Merioneth)||Smithers. Waldron|
|Copt, Major William||Kennedy, A. R. (Preston)||Somerville, A. A. (Windsor)|
|Crooke. J. Smedley (Derltend)||Kidd, J. (Linlithgow)||Sprot, Sir Alexander|
|Cunliffe, Sir Herbert||King, Captain Henry Douglas||Stanley, Col. Hon. G. F. (Will'sden, E.)|
|Curzon, Captain Viscount||Lister, Cunliffe, Rt. Hon. Sir Philip||Stanley, Lord (Fylde)|
|Davies, Dr. Vernon||Little, Dr. E. Graham||Stanley, Hon. o. F.G. (Westm'eland)|
|Dixey, A. C.||Loder, J. de V.||Steel, Major Samuel Strong|
|Duckworth, John||Lougher, L.||Storry-Deans, R.|
|Edmondson, Major A. J.||Luce, Maj.-Gen. Sir Richard Harman||Streatfield, Captain S. R.|
|Edwards, J. Hugh (Accrington)||MacAndrew, Major Charles Glen||Stuart, Hon. J. (Moray and Nairn)|
|England, Colonel A.||Macdonald, Capt. P. D. (I. of W.)||Sugden, Sir Wilfrid|
|Everard. W. Lindsay||McLean, Major A.||Thorn, Lt.-Col. J. G. (Dumbarton)|
|Fanshawe, Commander G. D.||McNeill, Rt. Hon. Ronald John||Vaughan-Morgan, Col. K. P.|
|Fermoy, Lord||Macquisten, F. A,||Ward, Lt.-Col. A. L. (Kingston-on-Hull)|
|Fielden, E. B.||Maitland, Sir Arthur D. Steel.||Warner, Brigadier-General W. W|
|Finburgh, S.||Makins, Brigadier-General E.||Warrender, Sir Victor|
|Forestier-Walker, Sir L.||Mitchell, S. (Lanark, Lanark)||Watson, Sir F. (Pudsey and Otley)|
|Forrest, W.||Moles, Thomas||Watson, Rt. Hon. W. (Carlisle)|
|Foxcrott, Captain C, T.||Monself, Eyres, Com. Rt. Hon. B. M.||Watts, Dr. T.|
|Fraser, Captain Ian||Morrison, H. (Wilts, Salisbury)||Wells. S. R.|
|Frece, sir Walter de||Newman, Sir H. H. S. D. L. (Exeter)||Williams, Cam. C. (Devon, Torquay)|
|Fremantle, Lt.-Col. Francis E.||Nuttall, Ellis||Williams, C. p. (Denbigh, Wrexham)|
|Gault, Lieut.-Col. Andrew Hamilton||Oman. Sir Charles William C.||Windsor-Clive, Lieut.-Colonel George|
|Gibbs, Col. Rt. Hon. George Abraham||Ormsby-Gore. Hon. William||Winterton, Rt. Hon. Earl|
|Gilmour, Lt.-Col. Rt. Hon. Sir John||Percy, Lord Eustace (Hastings)||Wise, Sir Fredric|
|Goff, Sir Park||Perkins, Colonel E. K.||Withers, John James|
|Grotrian, H. Brent||Phillpson, Mabel||Womersley, W. J.|
|Gunston, Captain D. W.||Power, Sir John Cecil||Wood, B. C. (Somerset, Bridgwater)|
|Hacking, Captain Douglas H.||Radford, E. A.||Wood, E. (Chest'r, Stalyb'dge & Hyde)|
|Hannon, Patrick Joseph Henry||Rafne, W.||Woodcock, Colonel H. C.|
|Harland, A.||Ramsden, E.||Yerburgh, Major Robert D. T.|
|Harrison, G. J. C.||Remer, J. R.|
|Harvey, G. (Lambeth, Kennington)||Rhys, Hon. C. A. u.||TELLERS FOR THE NOES.—|
|Hawke, John Anthony||Richardson, Sir P. W. (Sur'y, Ch'ts'y)||Mr. F. C. Thomson and Captain Margesson.|
§ Sir E. HUME-WILLIAMS
I beg to move, in page 2, line 18, to leave out paragraph (d).
What is provided here is only to he enjoyed under certain conditions, and before they can plead their case they haveto show that by reason of official duty, poverty or any other sufficient cause, he or she is prevented from taking proceedings in the courts of the country in which he or she is domiciled.I submit that that is altogether superfluous and indeed unjust. If this is a just law, then it is just for all. If it is right that a man in the public service in India, who has cause of complaint in India and has to prove his suit in regard to what happened in India, should be allowed to bring his petition in India it is right for ail. It is very hard that some distinguished official in the service of the English Government, for example, should have to leave his duties and spend a considerable sum of money in going to England or Scotland, taking with him witnesses and evidence from 2058 India, instead of being allowed to bring an English suit in India where the cause of complaint has arisen and the evidence in the case is in India. I submit that this paragraph is totally uncalled for. We do not want any limitation of that sort. From the richest to the poorest, it should be open to every man to take advantage of this new law, which I confess I think is a just one, and, when his complaint is in India, and when he resides in India, he ought, under the circumstances of this Measure, to be allowed to bring his action in India, whatever his condition may be, and whatever his financial status, without being put to the trouble of proving to the Indian court that he is unable, either because he is too poor or for some other reason, to bring it in this country.
§ Sir HENRY SLESSER
I support this Amendment. I think the hon. and learned Member has made it quite clear that underneath this proposal there lies a very vicious principle which we should 2059 always attack, and that is that any discrimination should be made between the rights of any class of persons, rich or poor, to legal remedies. We had a reference yesterday, in connection with another Bill, to houses suitable for the working class, and all through this kind of legislation there is a growing tendency to give people different rights according to their financial status. I think the hon. and learned Member has raised a real point in this case. I agree that here it is the more wealthy who are affected, but the vice of the proposal is just the same, and, therefore, I hope that we on this side of the House will give him full support in endeavouring to get this paragraph deleted.
§ Earl WINTERTON
I appreciate the attitude of the hon. and learned Member for South-East Leeds (Sir H. Slesser), but I do not quite understand why my hon. and learned Friend the Member for Bassetlaw (Sir E. Hume-Williams) should desire the deletion of this paragraph. This is not the first time that a departure has been made from the well-established principle that jurisdiction in divorce depends on domicile; that well-established principle has been departed from in India since the Act of 1869. In this paragraph we are reducing the distance by which we have departed from that principle. In other words, we say that only to those who can show, to the satisfaction of the Courts in India, that they cannot get their divorce in England, shall the Bill apply. I may say that this paragraph has been inserted in the Bill as the result of the advice given to the Secretary of State and the Government of India by a Committee, to which I referred on the Second Reading, consisting of several high legal authorities, including Lord Merrivale. I hope that my hon. and learned Friend will see his way to withdraw his Amendment on my assurance that it reduces the distance of the departure, which has always existed, from the ordinary principle that jurisdiction in divorce depends on domicile, and is an attempt to make it apply only to cases where hardship would ensue if the parties had to come home. Incidentally, I may remark that my hon. and learned Friend made no reference to the hardship which may be suffered by the respondent he referred only to the petitioner.
§ Sir E. HUME-WILLIAMS
I suppose this Bill accomplishes something. It is dealing with the existing condition and therefore this new provision is inserted. It is that new provision that I desire to take out.
§ Sir R. HAMILTON
I am sorry the Government is not prepared to accept the Amendment. It is most undesirable that jurisdiction in the matter of status should depend on the poverty or the wealth of the petitioner. It is a proposition which I am sure must be repugnant to all members of the House. Further, it must result in a different law being applied to the poor man and a rich man. I think the Government should accept the Amendment.
§ Mr. DENNIS HERBERT
I should like to add my plea to the Noble Lord. There is no question about which horse I am going to back to win in this case because I should not have supported my hon. and learned Friend in his first Amendment if it had been pressed. The Noble Lord referred to the petitioner only having been mentioned and not the respondent. I do not quite see the point of that. It seems to me if there is any point at all in considering the question of the respondent as well as the petitioner it is against the Noble Lord's case. Take the case of one party to the marriage contract wishing to bring a suit in India. Under this Bill, if the Amendment is not accepted, he would have to come home at extra expense to himself, and that extra expense falls upon the respondent as well as the petitioner. It seems to me there are two absolutely unanswerable arguments. One is that if the case is one that should he brought at all, on every possible ground of expense it ought to he brought in the Courts of the country where the alleged misconduct has taken place, where the evidence can be obtained and where the witnesses reside. The other ground has been urged already, that you should not have one law for the poor and one for the rich. Here it seems to me it is almost archaic to suggest, in favour of the Noble Lord's points, that you are not to let this extend to any except poor people and those who are prevented by duty. He argues that it is only to apply to them because you are making a mistake, first of all in having 2061 the law of Scotland interpreted by an Indian Court, and then, having made that mistake, you are going apparently to make it worse by applying it only to a particular class of people, determined on a most extraordinary basis—either duty or means. It seems to me grossly unfair, and I hope the Noble Lord will consider this again very carefully and see whether something cannot be done. We know what a. poor person is who is entitled to certain free assistance or something of that sort. What is the kind of poverty that is to apply to a case where it is going to make a difference in the cost to the parties between £300 and £3,000? I suggest that this is a matter which ought to be considered and I hope the Amendment will he pressed to a Division and that a large number of Members will support it.
§ The LORD ADVOCATE
I would like the Committee to realise exactly what is the position in this case, because, judging from these speeches we have heard, some hon. Members have nut fully appreciated the terms of the Bill. In the first place, let me point out that paragraph (c) makes it clear that a decree of dissolution can be granted in a case where the marriage was solemnised in India even though the offence was not committed there, or in the alternative where the adultery or crime complained of was committed in India. Secondly, I wish to point out that while stress has been laid on certain words of paragraph (d) the Committee should recognise that the matter is governed from beginning to end by the closing words, and the whole purpose is to secure that where, in the interests of justice, it is desirable that the suit should not be determined in India, the Indian Court shall have discretion to refuse jurisdiction. If this Amendment he accepted the Indian courts will have no discretion at all, and if a petitioner appears before them in a case, where the offence was committed in England and the marriage took place in India, the court would be bound to try it. I do not think the, House desires that. We approach this matter from an entirely different point of view. We accept the desirability on general principles of sticking to the law of domicile as far as we can, but. at the risk of repeating a little of what I said before, I may say we 2062 found that there did exist a jurisdiction in India and obviously the reason for the existence of that jurisdiction was because there were people who could not easily or conveniently, or without great expense or hardship, bring their suits in the true court of their domicile. I have not the slightest doubt that the purpose of the Act of 1869 was to serve those people and not to serve people who in all fairness ought to bring their suits in the court of their domicile. Having that fact in view, and the expression of opinion by Lord Merrivale and the advice of the Committee to which the noble lord has referred, these limitations were put in. Let us read the whole of them:Any such court may refuse to entertain a petition in such a case if the petitioner is unable to show that by reasons of official duty, poverty, or any other sufficient cause, he or she is prevented from taking proceedings in the court of the country in which he or she is domicilled and—I ask the Committee to note that this would be cut out by the Amendment.—the court shall so refuse if it is not satisfied, that in the interests of justice it is desirable that the suit should be determined in India.Even in a case where the offence has been committed in England and the marriage has been solemnised in India, it will not be uncommon for at least one of the parties to be in India at the time when the proceedings are brought and it will be possible if this paragraph is taken away, for a person who thinks he will have an easier time in India or have less risk of opposition in India, to go out to India and bring proceedings there and the Indian court will have no choice but to try that ease. I ask the Committee to look at this matter in a broad spirit and from the angle which I suggest is the true angle, namely that we ought to preserve as far as we can, consistently with the need of this specially placed population in India, our domicile foundation for divorce. I suggest that these are quite fair safeguards, in the form of a discretion—except when it is made imperative with the closing words—to put into the hands of judges who, after all,, are—I say it without any offence—the hierarchy of judges in India. Anyone who knows the kind of Court which exercises discretion will see at once that it does not matter two-pence whether you say "shall" or "may" with these closing words, because if a Court is. satisfied that it is 2063 in the interests of justice that the suit should not be determined in India the Court will say that the ease must go back to its domicile. I do not lay any particular stress on the word "may." I urge the Committee to approach the question from a reasonable point of view.
§ Sir E. HUME-WILLIAMS
We were told just now that a person can go out to India for the purpose of bringing a suit. Paragraph (c) contains these words:No such court shall grant any relief … except in cases where the petitioner resides in India at the time of presenting the petition and the place where the parties to the marriage last resided together was in India …
§ The LORD ADVOCATE
That is my point. That is what happens. The parties are residing in India. A matrimonial offence is discovered, and they part, and both go home. It is the easiest thing in the world for the parties to make it a residence in order to bring a suit. That does not take much away from my argument.
§ point of view of paragraph (d), but from the point of view of the injustice of paragraph (a). Paragraph (a) says that a Scotsman shall be subject to English law. Paragraph (d) says that a rich Scotsman may evade that, but a poor Scotsman shall be subject to English law. Is that correct?
§ The LORD ADVOCATE
On the contrary, it says that he shall not be subject to it unless there is real necessity.
§ Mr. ALBERY
May we have a further explanation of paragraph (d)? It says:Any such court may refuse to entertain a petition in such a case if the petitioner is unable to show that by reason of official duty, poverty or any other sufficient cause …Does "any other sufficient cause" include any form of employment other than official?
§ Question put, "That the words proposed to he left out stand part of the Clause."
§ The Committee divided: Ayes, 121; Noes, 54.2065
|Division No. 547.]||AYES.||[11.46 p.m.|
|Acland-Troyte, Lieut.-Colonel||Hacking, Captain Douglas H.||Power, Sir John Cecil|
|Agg-Gardner, Rt. Hon. Sir James T.||Hannon, Patrick Joseph Henry||Radford, E. A.|
|Albery, Irving James||Harland, A.||Raine, W|
|Balfour, George (Hampstead)||Harvey, G. (Lambeth, Kennington)||Ramsden, E.|
|Barnett, Major Sir Richard||Hawke, John Anthony||Remer, J. R.|
|Birchall, Major J. Dearman||Headlam, Lieut.-Colonel C. M.||Richardson, Sir p. W. (Sur'y, Ch'ts'y)|
|Bourne, Captain Robert Crott||Henderson, Capt. R. R.(Oxt'd, Henley)||Roberts, Sir Samuel (Hereford)|
|Bowyer, Capt. G. E. W.||Hennessy, Major J. R. G.||Ruggles-Brise, Major E. A.|
|Briscoe, Richard George||Herbert, S. (York, N.R., Scar. & Wh'by)||Rye, F. G.|
|Broun-Lindsay, Major H.||Hogg, Rt. Hon. Sir D. (St. Marylebone)||Samuel, A. M. (Surrey, Farnham)|
|Burman, J. B.||Horlick, Lieut.-Colonel J. N.||Samuel, Samuel (W'dsworth, Putney)|
|Cazalet, Captain Victor A.||Huntingfield, Lord||Sandeman, A. Stewart|
|Charteris, Brigadier-General J.||Hutchison, G. A. Clark(Mldl'n & P'bl's)||Sanderson, Sir Frank|
|Chilcott, Sir Warden||Jacob. A. E||Savery. S. S|
|Christie, J. A.||Kennedy, A. R. (Preston)||Shepperson, E. W.|
|Clayton, G. C.||Kidd, J. (Linlithgow)||Slaney, Major P. Kenyon|
|Cochrane, Commander Hon. A. O.||King, Captain Henry Douglas||Smith, R. W. (Aberd'n & Kinc'dine.C.)|
|Cockerill, Brig.-General Sir G. K.||Lister, Cunliffe-, Rt. Hon. Sir Philip||Smithers, Waldron|
|Cope, Major William||Little, Dr- E, Graham||Sprot, Sir Alexander|
|Cunon, Captain Viscount||Loder, J. de V.||Stanley, Col. Hon. G. F. (Will'tden, E.)|
|Carver, W. H.||Lougher, L.||Stanley, Lord (Fylde)|
|Dixey, A. C.||Luce, Major-Gen. Sir Richard Harman||Stanley, Hon. O. F. G. (Westm'eland)|
|Duckworth, John||MacAndrew, Major Charles Glen||Steel, Major Samuel Strong|
|Edmondson, Major A. J.||Macdonald, Capt. P. D. (I. of W.)||Storry-Deans, R.|
|England, Colonel A.||McLean, Major A.||Streatfield, Captain S. R.|
|Everard. W. Lindsay||McNeill, Rt. Hon. Ronald John||Stuart, Hon. J. (Moray and Nairn)|
|Fanshawe, Commander G. D.||Maitland, Sir Arthur D. Steel-||Sugden, Sir Wilfrid|
|Fielden, E. B.||Makins, Brigadier-General E.||Thorn, Lt.-Col. J. G. (Dumbarton)|
|Finburgh, S.||Mitchell, S. (Lanark, Lanark)||Vaughan-Morgan. Col. K. P.|
|Foxcroft, Captain C. T.||Moles, Thomas||Ward, Lt.-Col. A. L.(Kingston-on-Hull)|
|Fraser, Captain Ian||Monsell, Eyres, Com. Rt. Hon. B. M.||Warrender, Sir Victor|
|Frece, Sir Walter de||Morrison, H. (Wilts, Salisbury)||Watson, sir F. (Pudsey and Otley)|
|Fremantle, Lieut.-Colonel Francis E.||Newman, Sir R. H. S. D. L. (Exeter!||Watson, Rt. Hon. W. (Carlisle)|
|Gault, Lieut.-Col. Andrew Hamilton||Nuttail, Ellis||Watts, Dr. T.|
|Gilmour, Lt.-Col. Rt. Hon. Sir John||Oman, Sir Charles William C.||Wells, S. R.|
|Goff, sir Park||Percy, Lord Eustace (Hastings)||Wiggins, William Martin|
|Grotrian, H. Brent||Perkins, Colonel E. K.||Williams, Com. C. (Devon, Torquay)|
|Gunston, Captain D. W.||Phillpson, Mabel||Williams, C. P. (Denbigh, Wrexham)|
|Windsor-Clive, Lieut.-Colonel George||Womersley, W. J.||TELLERS FOR THE AYES.—|
|Winterton, Rt. Hon. Earl||Wood, E. (Chest'r, Stalyb'dge & Hyde)||Mr. F. C. Thomson and Captain|
|Wise, Sir Fredric||Yerburgh, Major Robert D. T.||Margesson,|
|Withers, John James|
|Barr, J.||Hayes, John Henry||Sinclair, Major Sir A. (Caithness)|
|Benn, Captain Wedgwood (Leith)||Henderson, T. (Glasgow)||Sitch, Charles H.|
|Bromfield, William||Herbert, Dennis (Hertford, Watford)||Slesser, Sir Henry H.|
|Bromley, J.||Hirst, G. H.||Smith, Ben (Bermondsey, Rotherhithe)|
|Brown, James (Ayr and Bute)||Hore-Belisha, Leslie||Stephen, Campbell|
|Buchanan, G.||Hudson, J, H. (Huddersfield)||Sullivan, Joseph|
|Charleton, H. C.||John, William (Rhondda, Wist)||Sutton, J. E.|
|Compton, Joseph||Johnston, Thomas (Dundee)||Taylor, R. A.|
|Cowan, O, M. (Scottish Universities)||Jones, Henry Haydn (Merioneth)||Thomas, Sir Robert John (Anglesey)|
|Dalton, Hugh||Jones, T. I. Mardy (Pontypridd)||Townend, A. E.|
|Day, Colonel Harry||Kelly, W. T.||Varley, Frank B.|
|Dunnico, H.||Kirkwood, D||Watson, W. M. (Dunfermline)|
|Edwards, C. (Monmouth, Bedwellty)||Lindley, F. W.||Welsh, J. C.|
|Fenby, T. D.||Lunn, William||West wood, J.|
|Graham, O. M. (Lanark, Hamilton)||MacLaren, Andrew||Wheatley, Rt. Hon. J|
|Greenall. D. R. (Glamorgan)||Maclean, Nell (Glasgow, Govan)||Williams, T. (York, Don Valley)|
|Grundy, T. W.||Maxton, James||Windsor, Walter|
|Hall, G. H. (Merthyr Tydvil)||Paling, W.|
|Hamilton, Sir R. (Orkney & Shetland)||Potts, John S.||TELLERS FOR THE NOES.—|
|Hardie, George D.||Richardson, R. (Houghton-le-Spring)||Sir Ellis Hume-Williams and|
|Hayday, Arthur||Riley, Ben||Colonel Woodcock.|
§ Mr. B. SMITH
May I call your attention, Mr. Chairman, to the fact that in the Division which has just concluded five Members were in the Lobby whose votes had been taken, but the Tellers had left the door, and so their votes were not counted?. I want to know whether those votes cannot be registered. We have to wait for the doors to be locked before the Tellers leave.
§ The CHAIRMAN
The Tellers agree as to certain numbers, and those have to be reported. It is not in my power to give any redress.
§ The CHAIRMAN
I am afraid the responsibility is with the. Tellers. They agreed, apparently, on certain numbers, and I have no power in the matter.
§ Mr. N. MACLEAN
Is it not the case that those names can appear in the Division Lists in the OFFICIAL REPORT to-morrow? It appears that the Tellers left the Division Lobby exits before the Lobbies were cleared.
§ The CHAIRMAN
My duty is to announce the figures as given me by the Tellers. That is the limit of my duty. It may be that in the Division Lists tomorrow that discrepancy will appear. I presume that it will be in order on some 2066 occasion to put down a Motion of censure on the Tellers.
§ Mr. MACLEAN
While everyone will agree that that is the extent of your duty, Sir, at the moment, still, as Chairman in charge of the business, your business, ought to be to protect the rights of Members, and it is one of the rights of Members to have their votes duly recorded and counted in any Division in which they may take part. I want to put it to you, acting, not as the Chairman who has read out the figures as given to you by the Tellers, but as the Chairman in whose keeping lie the rights and privileges of Members of this House, and their protection, that there is surely some method by which the names of those who were in the Division Lobby, but who were not counted by the Tellers, can be included in the Division Lists to-morrow in the OFFICIAL REPORT.
§ The CHAIRMAN
I take it that they will be included, and that their names will duly appear there, but that is a matter that is not within my jurisdiction.
§ Mr. DENNIS HERBERT
If 56 names appear in the list, and the numbers are stated to be 51, can you tell me which five will be considered as not having voted?
§ The CHAIRMAN
I think any further questions on this point had better be put to-morrow to Mr. Speaker.
§ The CHAIRMAN
I believe there are precedents for the Tellers immediately correcting certain numbers. It appears that in this case the five hon. Members in question—I know nothing as to the facts but I am assuming the facts to be as stated—have not passed the Tellers. I do not think it is in my power to adjust the matter. I am afraid that I can only say it is another example of the inconsistency of human affairs, that the list of those voting may be more than the numbers given in the OFFICIAL REPORT to-morrow.
§ Mr. F. C. THOMSON (Lord of the Treasury)
The doors were locked a considerable time before we left.
§ The CHAIRMAN
I am afraid I cannot go into this matter further. The numbers have been given to me by the Tellers and I must take them as correct. Any question as to any further matters must be discussed later on.
§ Captain BENN
On a point of Order. May I ask whether the House or Mr. Speaker have any jurisdiction whatever over what happens in Committee, and whether it is not a fact that Mr. Speaker has repeatedly ruled that he can give no opinion about the happenings in Committee? May I submit that this is a matter within our jurisdiction as a Committee, and that, in the circumstances, it is within your power as Chairman to declare the Division void? If the numbers declared by the Tellers obviously disagree with the numbers who passed through the Lobby, do you rule that you have no power as Chairman to declare the Division void?
§ The CHAIRMAN
It would be a little dangerous to give answers to hypothetical questions. There is one definite question before me on which I have ruled. With respect to Mr. Speaker, I was dealing with the question of the Report. I presume that the names and numbers will be given in the OFFICIAL REPORT, which is 2068 under the general jurisdiction of Mr. Speaker.
§ Mr. KIDD
In the unavoidable absence of the hon. Member for West Edinburgh (Mr. MacIntyre), I beg to move, in page 3, line 29, after the word "Chancellor," to insert the wordsand after consultation with the Lord President of the Court of Session.As I listened to the hon. Member for Govan (Mr. Maclean) I had a good deal of sympathy with him. On the other hand, I could not but be impressed by the explanation given on the Second Reading and to-night by the Lord Advocate. He made it quite clear that the policy pursued in the Bill in regard to Scottish law was inevitable. I was glad to learn from the Lord Advocate that, while he was practical in his work, he shared the sentiments of Scotsmen who took exception to the Bill as it stands. I rely upon that sentiment now. I suspect that the law of India has been developed under the influence of English law, and certainly not under the influence of Scottish law. I hope the Lord Advocate will agree with me that the provisions under (1, 4) will permit. of the Amendment which I have proposed. Sub-section (4) provides thatProceedings before a High Court in India in exercise of the jurisdiction conferred by this Act shall be conducted in accordance with rules made by the Secretary of State in Council in India with the concurrence of the Lord Chancellor.12 M.
If the Amendment be accepted, I hope it will remove to some extent the displeasure some hon. Members feel towards the Bill. Better half a loaf than no bread. If the Lord President of the Court of Session, in consultation with the Lord Chancellor, has to do with the framing of the rules under which these divorces are to be conducted, then we may take it that if by any chance Scotsmen or Scotswomen would be in any way prejudiced by the Bill as it stands, that prejudice will be removed as far as possible by the intervention of the Lord President of the Court of Session.
§ The LORD ADVOCATE
I quite appreciate the sentiment which actuates 2069 this Amendment, but I think it is clear that it would be essential as an administrative matter for my Noble Friend the Secretary of State, in order to frame these rules in correlation with Scottish procedure for the purpose of registration, to consult some Scottish legal authority, and it seems equally obvious that the only appropriate authority for him to consult is the Lord President of the Court of Session. It did not, therefore, seem to me absolutely essential that this Amendment should be inserted in the Bill, but my Noble Friend has authorised me to give an undertaking on his behalf that he will consult the President of the Court of Session in making these rules, and I trust that my hon. and learned Friend will be satisfied with that.
§ Captain BENN
I beg to move, as an Amendment to the proposed Amendment, to leave out the words "after consultation with."
The Sub-section would then read, that the rules shall be madeby the Secretary of State in Council of India with the concurrence of the Lord Chancellor and the Lord President of the Court of Session.If the Secretary of State requires the concurrence of the Lord Chancellor of England, why should he not in this matter, which concerns a British population, 80 per cent. of which is Scottish, require the concurrence of the Lord President of the Court of Session? If the Amendment be a good Amendment, as I think it is, I think it is better if we put the Lord President of the Court of Session on exactly the same footing as the Lord Chancellor, and, I therefore propose to leave out the words "after consultation with."
§ Mr. MACLEAN
If an undertaking is given by the Secretary of State for India that he will act upon the principle of this Amendment moved by the hon. Member for Linlithgow (Mr. Kidd) and consult with the Lord President of the Court of Session—if he is authorised to 2070 give that undertaking to the Committee—why not include it in the Bill? I have been a Member of this House for some years, and I have heard similar undertakings given to the House and subsequently I have heard that we are not bound by verbal undertakings given in the House. If it is a solemn undertaking on the part of the Secretary of State for India, and he accepts responsibility by making that undertaking public, he must also share the responsibility so far as this House is concerned. Why riot, therefore, put it into the Bill itself and thereby make it absolutely beyond the shadow of doubt and not merely leave it to the caprice of any individual saying that we did not understand that this was the undertaking or that we forgot altogether what the undertaking actually was, and consequently we did not consult the President of the Court of Session. I suggest to the Lord Advocate, since he has said that he will, on the authority of the Secretary of State for India, give the undertaking to the House, let him put these words in the Bill itself, and then the matter will be at rest. I hope he will carry that into effect.
§ Mr. KIDD
I want to say to the hon. and gallant Member for Leith (Captain Benn), that I can appreciate the Amendment he proposes, but I think he will admit that having submitted an Amendment myself and having proposed to withdraw the Amendment on the undertaking given by the Lord Advocate, it is only fair that I should give my reasons. I was bound to recognise that the Lord Chancellor was the head of the House of Lords or the head, so to speak, of a Court which itself was the Appeal Court of Scotland. The Lord Chancellor is a British Judge and having that in view, if that British Judge on a peculiar Scotch matter was prepared to consult with the Lord President then I am satisfied. I hope I have given reasons sufficient to show that I have displayed a jealous regard for the position and the feelings of Scotland in this matter. If the Lord Chancellor, as head of the British Court, consulted the Lord President of the Court of Session, I am satisfied and I propose now to withdraw the Amendment on the Paper on the undertaking given by the Lord Advocate.
§ Mr. MACLEAN
I am surprised at the hon. Member putting forward this 2071 wonderful excuse. I would point out to him when talking about his great sentiment for Scottish legal rights and natural rights that he is only paying lip-service when he accepts this kind of undertaking. I am not in any way reflecting upon the honesty of the meaning behind it, but we know what undertakings have been in the past, and the hon. Member in his own recollection as a Member of this House, certainly knows of undertakings solemnly given to this House that have been broken, not perhaps wilfully but inadvertently. The spirit of the undertaking has been broken and the undertaking has gone for nothing. If we are going to have it definitely stated now that Scottish rights are to be protected merely by an undertaking hidden away in the records of the OFFICIAL REPORT, which may be turned up later on and repudiated by the Government that may be in power at that time because none of its Members are in any way responsible for the undertaking, I must say that I cannot trust memories, legal or political. I am hoping that the Committee will not allow the hon. Member to withdraw his Amendment, but will insist upon the spirit of the undertaking being put down definitely in words in the Bill itself, and if the Lord Advocate is not prepared to accept the matter of defining the undertaking and putting words into the Bill, that the hon. Gentleman will go to a division on the matter.
§ Captain BENN
If it is the fact that the Lord Advocate means that by not accepting the Amendments he will avoid a Report stage, I am glad to give him an undertaking on my own behalf that I shall not take advantage of the Report stage to move Amendments.
§ The LORD ADVOCATE
It is desirable that we should not have to return this Bill to the other House. My Noble Friend will consult with the Lord President of the Court of Session in the ordinary course. This Amendment is not necessary. I very much regret that it is feared that an undertaking given by a Secretary of State should not be observed.
§ Mr. MACLEAN
While we agree as to the avoidance of a Report stage, as this Bill originated in another place, that 2072 place, if it makes a mistake, ought to have that mistake corrected.
§ Mr. MACLEAN
The Lord Advocate knows perfectly well that a great deal of money has been spent because so many of our legal matters are left to assumption. If we could get the matter down definitely in words we should know exactly where we were.
§ Captain BENN
If it will assist further, I am quite prepared to withdraw the Amendment to the Amendment. The Lord Advocate must not think that this is an attack upon any Government if we say that it is desirable that these words should be put in the Bill. I never intended to reflect upon the honour of any Minister, but it is desirable that if we mean a thing we should say it. It is a very dangerous doctrine to say that, because a Bill comes from another place, we must not amend it, because it will involve sending it back.
§ The LORD ADVOCATE
The hon. and gallant Member put that question to me, and I merely pointed out that that would be the result.
§ Captain BENN
I do not want to labour the point if we are not at variance, but if it is to be said that, because a Bill originates in another place it is undesirable to amend it here, it is a dangerous doctrine. I suggest respectfully to the Lord Advocate that if I withdraw my Amendment, which I am quite willing to do, he should accept the words of the hon. Member for Linlithgow (Mr. Kidd), and then it will be a matter of two minutes only, and the Bill will become law with this desirable aspiration actually in it.
§ Sir E. HUME-WILLIAMS
We have the undertaking of the Government that the Lord President. shall consult with the Lord Chancellor, and is not that sufficient for all practical purposes?
§ Question, "That the words proposed to be left out stand part of the proposed Amendment," put, and negatived.
§ Question put, "That the words 'and the Lord President of the Court of Session' be there inserted."
§ The Committee divided: Ayes, 43; Noes, 109.2073
|Division No. 548.]||AYES.||[12.18 a.m.|
|Barr, J.||Hardie, George O.||Smith, Ben (Bermondsey, Rotherhithe)|
|Benn, Captain Wedgwood (uelth)||Hayday, Arthur||Stephen, Campbell|
|Bromfield, William||Henderson. T. (Glasgow)||Sullivan, Joseph|
|Brown, James (Ayr and Bute)||Hudson, J. H. (Huddersfield)||Taylor, R. A.|
|Buchanan, G.||John, William (Rhondda, West)||Thomas, Sir Robert John (Anglesey|
|Charleton, H. C.||Johnston, Thomas (Dundee)||Varlty, Prank B.|
|Cowan, D. M. (Scottish Universities)||Jones, T. I. Mardy (Pontypridd)||Watson, W. M. (Dunfermline)|
|Dalton, Hash||Kelly, W. T.||Welsh, J. C.|
|Day, Colonel Harry||Kirkwood, D||Westwood, J.|
|Duckworth, John||Lindley, F. W,||Wheatley, Rt. Hon. J.|
|England, Colonel A.||MacLaren, Andrew||Williams, T. (York, Don Valley)|
|Fenby, T. D.||Maclean, Neil (Glasgow, Govan)|
|Graham, D. M. (Lanark, Hamilton)||Maxton, James||TELLERS FOR THE AYES.—|
|Grenfell, D. R. (Glamorgan)||Paling, W.||Mr. Charles Edwards and Mr. Hayes.|
|Hall, G. H. (Merthyr Tydvil)||Potts, John S.|
|Hamilton, Sir R. (Orkney & Shetland)||Riley, Ben|
|Acland-Troyte, Lieut.-Colonel||Henderson,Capt. R. R.(Oxl'd, Henley)||Roberts, Sir Samuel (Hereford)|
|Agg-Gardner, Rt. Hon. Sir James T.||Hennessy. Major J. R. G.||Ruggles-Brise, Major E. A.|
|Albery, Irving James||Herbert, Dennis (Hertford, Watford)||Samuel, A. M. (Surrey, Farnham)|
|Balfour, George (Hampstead)||Herbert, S. (York, N. R., Scar. & Wh'byl||Samuel, Samuel (W'dsworth. Putney|
|Barnett, Major Sir Richard||Hogg, Rt. Hon. Sir D.(St. Marylebone)||Sandeman, A. Stewart|
|Birchall, Major J. Dearman||Horlick, Lieut.-Colonel J. N.||Sanderson, Sir Frank|
|Bourne, Captain Robert Croft||Hume-Williams, sir W. Ellis||Shepperson, E. W.|
|Briscoe, Richard George||Huntingfield, Lord||Slaney, Major P. Kenyon|
|Broun-Lindsay, Major H.||Hutchison,G.A.Clark (Midl'n & P'bl's)||Smith, R. W.(Aberd'n & Kinc'dine.C.)|
|Carver, W. K.||Jacob, A. B.||Smithers, Waldron|
|Cazalet. Captain Victor A.||Kennedy, A. R. (Preston)||Stanley, Col. Hon. G.F.(Will'tden. E.)|
|Charteris, Brigadier-General J||Kidd, J. (Linlithgow)||Stanley, Lord (Fylde)|
|Chilcott, Sir Warden||King, Captain Henry Douglas||Stanley, Hon. O. F. G. (Westm'eland)|
|Christie, J. A.||Lister, Cunliffe-, Rt. Hon, Sir Philip||Steel, Major Samuel Strong|
|Clayton, G. C.||Little, Dr. E. Graham||Storry-Deans, R.|
|Cochrane, Commander Hon. A. D.||Loder, J. de V.||Streatfield, Captain S. R.|
|Cockerill, Brig.-General Sir G. K.||Lougher, L.||Stuart, Hon. J. (Moray and Nairn)|
|Curzon, Captain Viscount||Luce, Major-Gen. Sir Richard Harman||Sugden, Sir Wilfrid|
|Dixey, A. C.||Macdonald, Capt. P. D. (I. of W.)||Thorn, Lt.-Col. J. G. (Dumbarton)|
|Edmondson, Major A. J.||Maitland, Sir Arthur D. Steel-||Thomson, F. C. (Aberdeen, South)|
|Everard, W. Lindsay||McLean, Major A.||Vaughan-Morgan, Col. K. P.|
|Fanshawe, Commander G. D.||McNeill, Rt. Hon. Ronald John||Warrender, Sir Victor|
|Fielden, E. B.||Maktns, Brigadier-General E||Watson, Sir F. (Pudsey and Otley)|
|Finburgh, S.||Margesson, Captain D.||Watson, Rt. Hon. W. (Carlisle)|
|Foxcroft. Captain C. T.||Mitchell, S. (Lanark, Lanark)||Watts, Dr. T.|
|Frece, Sir Walter de||Moles, Thomas||Wells, S. R.|
|Fremantle, Lieut.-Colonel Francis E.||Monsell, Eyres, Com. Rt. Hon. B. M.||Williams, A. M. (Cornwall, Northern)|
|Gault, Lieut-Col. Andrew Hamilton||Morrison, H. (Wilts, Salisbury)||Williams, Com. C. (Devon, Torquay)|
|Gilmour, Lt.-Col. Rt. Hon. Sir John||Newman, Sir R. H. S. D. L. (Exeter)||Windsor-Clive, Lieut.-Colonel George|
|Goff, Sir Park||Nuttall, Ellis||Winterton, Rt. Hon. Earl|
|Grotrian, H. Brent||Percy, Lord Eustace (Hastings)||Wise, Sir Fredric|
|Gunston, Captain D. W.||Phillpson, Mabel||Wood, E. (Chest'r. Stalyb'dae & Hyde)|
|Hacking, Captain Douglas H.||Power, Sir John Cecil||Woodcock, Colonel H. C.|
|Hannon, Patrick Joseph Henry||Radford, E. A.||Yerburgh, Major Robert D. T.|
|Harland, A.||Raine, W.|
|Harvey, G. (Lambeth, Kennington)||Ramsden, E.||TELLERS FOR THE NOES.—|
|Hawke, John Anthony||Remer, J. R.||Major Cope and Captain Bowyer.|
|Headlam, Lieut.-Colonel C. M.||Richardson, Sir P. W. (Sur'y, Ch'ts-y)|
§ Question, "That the Clause stand part of the Bill," put, and agreed to.