§ Order for Second Reading read.
§ 11.6 a. m.
§ Mr. Petherick
I beg to move, "That the Bill be now read a Second time."
In 1933 I was so fortunate as to obtain a high place in the Ballot for Private Members' Bills, and on that occasion I introduced a Measure which subsequently became law. The odds against a Member drawing a high place in the ballot are considerable, and the odds against the Bill which he introduces becoming law are even greater. The odds against two such Bills becoming law within five years can safely be left to the calculations of actuaries, senior wranglers and bookmakers. But such are the merits of this Bill that I believe there is a good chance of the double event coming off, in spite of the fact that the jockey was and still is a lightweight. I begin by saying a little about the origin of the Bill. A Bill was introduced in another place by Lord Listowel in 1934 which was similar to this Bill in certain important respects and as a result of the introduction of that Bill, my right hon. Friend the Member for the Pollok Division of Glasgow (Sir J. Gilmour), who was then Home Secretary, set up a Departmental Committee, the terms of reference of which were subsequently widened by the present Home Secretary. The Departmental Committee was under the very able chairmanship of Mr. Harris of the Home Office. It sat for a considerable time and made some very important recommendations. It was directed to inquire into the social services in the courts of summary jurisdiction with special relation to matrimonial disputes and the whole system of probation and conciliation. In March, 1935, Lord Merrivale also introduced a Bill in another place. Lord Merrivale, as hon. Members know, has very long experience and immense knowledge of these subjects. That Bill also was withdrawn when, as I understand, Lord Merrivale was satisfied that the terms of reference of the Departmental Committee were sufficiently wide. Both those Bills were fully considered by the Departmental Committee and very much influenced their recommendations. Mr. Harris's committee reported in March 1940 of last year. It did its work carefully and well. It examined 136 witnesses, held 47 meetings and produced an ably-written and exhaustive report on the proceedings in these summary courts—with which the Bill, of course, only deals —and its recommendations, as far as the first part is concerned, are being acted upon in the Bill. The report, which is of great interest, is 15o pages long but one can say that there is hardly a word too many in it.
This Bill, as I say, gives effect to the first part of the Committee's report and recommendations. Hon. Members may wonder why I did not go further in this Bill and give effect to some of the other recommendations, but after careful consideration it was decided that a separate Bill would be necessary to give effect to those other recommendations. I claim, however, that this Bill does carry out in full as far as legislation is concerned the first part of the recommendations. The subject is a large one, and I must beg the indulgence of the House if I exceed the time, to which I should ordinarily wish to confine myself, though I shall endeavour not to do so. It is necessary, however, to say something about the history of probation officers and of conciliation and of this class of legislation in general. We have to know something about these matters in order to realise the full purport of the Bill.
Fifty or sixty years ago in the courts of summary jurisdiction in this country the justices did not normally take into consideration the social implications of the law as they were administering it, so far as it affected private persons in matrimonial disputes. At that time also the system of probation was practically unknown. About that time police-court missionaries, agents of voluntary societies, began to attend the courts and these men and women became so valuable that they ultimately achieved official recognition by the Home Office and also statutory recognition. The Bill, so to speak, underlines the recognition which these men and women have received. They have done magnificent service as probation officers, and I think the country realises that they are a hardworking and often underpaid body of men and women who help greatly to bring sympathy into the administration of justice in this country.
May I say a few words about the history of the legislation on which the 1941 Bill is to a certain extent based? The first Act of Parliament on the subject which I need mention is the Matrimonial Causes Act, 1878. By that Act justices were empowered to make orders for non-cohabitation, maintenance and custody against a man for aggravated assault on his wife. In 1886 the Married Women (Maintenance in Case of Desertion) Act was introduced. In it justices were empowered to grant maintenance orders against a husband in a case where he had deserted his wife. The Summary Jurisdiction Act, 1895, re-enacted and consolidated those two previous Acts, and that is now the principal Act. In addition, I should mention the Licensing Act, 1902, which added habitual drunkenness to the causes for which a separation could be granted. In this case it is interesting to note that the wife as well as the husband can be considered the guilty party—the first time, I think, in which the possibility of the wife being at fault in this respect was considered in our legislation. There was also the Married Women (Maintenance) Act, 1920, which made provision for the custody of the children and their maintenance, and, finally, the Summary Jurisdiction Act, 1925, which amended and extended the previous Acts. The results of these Acts, so far as they affect matrimonial disputes, has been satisfactory, and I think in general it may be claimed that they are working very well. Relief may be granted under the law as it stands in the following forms—non-cohabitation orders, maintenance orders, custody of the children orders, and, of course, court costs. In addition to that, the wife may be committed to an inebriates' home in certain cases where her drunkenness causes danger to the children.
But it should be pointed out that the relief does not always apply to both parties. A wife can obtain relief for assault, desertion, persistent cruelty by her husband to herself or children, neglect to maintain her, drunkenness, addiction to drugs, certain cases of venereal disease, and if the husband obliges the wife to submit herself to prostitution. The husband can get relief for habitual drunkenness on the part of the wife, for addiction to drugs, or for persistent cruelty to the children. As I have said, I think it can be said that these Acts are working well, though the Royal Commis- 1942 sion on Divorce in 1912 did recommend that the summary courts should only grant separation orders for a period of two years and that permanent ones should go to the High Court.
The Departmental Committee, on whose report this Bill is based, disagreed, for obvious reasons, with the recommendations of the Royal Commission on Divorce, which, after all, were publishes' some 25 years ago, and I only mention that Royal Commission because I would, if I may, read two extracts to the House from their report. They said:We find that a very large percentage of the persons separated by such orders become reconciled afterwards … largely through pressure caused by the increased cost of living separately; by some witnesses this percentage is placed as high as 5o and even, in some cases, as high as 75.Thus it will be seen that even in 1912 a great deal of reconciliation during the progress of these cases did in fact take place. Later on the report reads as follows:These courts form part of the judicial system for administering the criminal law in case of petty offences. We think there is a serious objection to a court, whose main duties are of a criminal character, entertaining applications, which are of a civil nature, concerning the domestic relations of men and women and their children, applications which, if granted, may produce the practical although not the legal dissolution of the marriage tie.The reason I quote these extracts is that in this Bill we appreciate the value of that criticism and separate the matrimonial jurisdiction from the criminal business of the ordinary courts.
This brings me to the very important question of conciliation. Middle-aged bachelors very often appear in the pages of our more excitable novelists as home wreckers and serpents in the house, and I am trying to belie that general and unreasonable aspersion by introducing this Bill, which I think will go far to bring about conciliation in these summary courts. On the question of conciliation in general, the law is completely silent. One thing is quite clear, however, and that is that it is widely practised in the courts. It is certainly not illegal, and there is at least recognition by implication and, I think I may say, in the provisions of the Bill, too. In some cases on the Continent of Europe conciliation has to be attempted before any orders at all can be made. In this country, as hon. Members will know, conciliation is 1943 left purely to the discretion of the magistrates, and I think there is no reason to believe that in this country the justices of the peace are less aware than they are abroad of the immense importance of trying to maintain the permanence and sanctity of the home, and it is clear that they fully realise the absolute, necessity of doing everything they can to maintain the marriage tie.
There is still a very wide diversity in the general practice of conciliation in this country. Some magistrates are very interested and do their utmost in suitable cases to bring about conciliation, but in certain courts it is hardly practised at all, and in some courts not at all. The vast majority of the courts, however, do in fact make some attempt at conciliation. The Departmental Committee made a very careful inquiry through some 6o courts, Metropolitan and otherwise, as to the extent to which conciliation is practised and as to its effects. They asked three questions of these courts, namely, to what extent is conciliation practised, who acts, and what are the results? The replies were to the effect that nearly all the benches in fact practise conciliation at some stage, that generally the probation officer is used as the conciliator, that in certain cases the agents of voluntary societies act, and that in some cases actually the magistrates themselves attempt conciliation. The answer to the third question—which was, How successful is it?—was that apparently, so far as the information goes, in about two-thirds of the cases in which conciliation has been tried it has been found to be successful, but I think possibly the evidence may be somewhat inconclusive there, because in fact the inquiries of the Committee covered only a comparatively short period, and therefore it was not possible to know how many people who appeared to be reconciled in fact remained together.
I have given a general background of the Bill, and I must now ask the House to allow me to go into a few details, but first I would like to make two very important points. The first is that conciliation, as I think all hon. Members would agree, must not be forced, but it must be done with the consent of the parties, and the magistrates must not attempt to insist on conciliation being practised in cases where 1944 they know it is hopeless. Furthermore, the legal rights of the parties must be maintained, and the House will find, on examining the Bill, that there is no single word or syllable in it which in any way detracts from the existing rights of parties in matrimonial disputes in going before the courts. In dealing with the courts of law, therefore, we must, I think, remember that justice should come first, because they are courts of law, and conciliation only second.
I will say now a little about the Bill itself, and if I may begin at the end, a rather odd way of doing it, hon. Members will see in the Schedule the class of cases which the Bill covers. They will notice that there is a provision that proceedings for enforcement of an order or variation in the provisions of an order do not come under the Bill, and the reason for that is that such proceedings may partake of a criminal character and the defendant may in fact be sent to prison, and consequently it would not be right, where a dispute of that kind is involved, to subject the proceedings to the provisions of this Bill. If hon. Members will turn to Clause 1, they will see that it provides that these domestic proceedings mentioned in the Schedule must be heard before three justices. At the present time, apart from stipendiary magistrates' courts, a quorum is two, but occasionally, I am told, as many as 3o magistrates sit on a bench, and the House can well understand that it is a source of very great embarrassment to women and men perhaps to have intimate family details tried before these very large benches, some of the members of which may have no sympathy with or understanding of that class of case at all.
Under Clause r the magistrates will choose from their body those who are known for their tact and their knowledge of and interest in this kind of case. Ardent masculinists will note that at least one of the three justices must be a man.
The first Sub-section of Clause 2 provides for the hearing of such cases at different times from other cases, but a certain discretion is left to the justices in cases where it is difficult to fulfil this provision. The object of it is to remove these civil cases affecting two people, and perhaps the children, from ordinary criminal cases. These cases are often heard in the middle of other proceedings when there are crowds of witnesses and 1945 other people about the court, and obviously that is undesirable. Women are unwilling very often to speak up, particularly where intimate details of their family life are involved. Some courts do have special times, and I think that that is highly desirable whenever possible.
Sub-section (2) provides for the exclusion from the court of people who are not directly connected with the case. The reason is obvious, and the same argument applies to this Sub-section as to Sub-section (1). There are great evils from undue publicity. Women will not speak out, and all the evils which follow from modern publicity may arise from such a procedure. These hearings will not be heard in camera, because in the ordinary case the Press will be present, although there are restrictions on Press publicity in a later Clause. Similar provisions to those in Clause 2 are in the law of the land under the Children and Young Persons Act, 1933. Clause 3 deals with Press publicity, and has been drafted very closely in accordance with the Judicial Proceedings Act, 1926, which dealt with reports of divorce proceedings. My hon. Friend the Member for Bodmin (Mr. Rathbone), who is seconding the Motion for the Second Reading, will deal more fully with the evils of publicity.
Clause 4 provides for a new procedure. If conciliation fails a nd an application is renewed, the court may receive from the conciliator a statement of allegations. The object is simply to arrive at justice. There are a number of people who go to these courts who are nervous, tongue-tied, perhaps ill-educated, and occasionally almost illiterate, and they are generally not legally represented. It is very difficult to arrive at the truth, because they are generally unable to cross-examine and to conduct their own cases, and it is naturally difficult for the magistrates to find out what is the truth behind the cases. The magistrates under this procedure will be able to elicit the truth by means of a statement of allegations obtained from both sides by the probation officer. It should be pointed out that the probation officer must obtain the consent of the parties to his statement of allegation, and they must approve it before it can he used. These statements cannot be used as evidence.
Clause 5 enables the court to receive a report with regard to the ability of a 1946 person who has had a maintenance order made against him to pay. I need not stress this point, but it is, of course, in the interests of both parties to the case. If a special investigation were not made by the probation officer a man might be ordered to pay too little or too much. Clause 6 must be read in conjunction with Clause 4 because it has the same general implications. The object is to avoid the parties to the case being confined too closely to question and answer, and it alters to a certain extent the rules of evidence in this connection. May I ask my hon. and learned Friends in the House who practise in the High Court to consider whether it is not advisable to make some alteration in the procedure of the summary courts, because the parties are not legally represented, and the important thing is not a legalistic quibble but to arrive at the truth and to administer justice? I, therefore, commend this Clause particularly to hon. and learned Members who have such great experience in the administration of the law.
Clause 7 authorises the probation officers to perform duties which are given to them under the Criminal Justice Act, 1925. Clause 8 makes special provision for the stipendiary magistrates' courts and the City of London. Sub-section (2) provides that the city magistrates can make their own provisions. Hon, Members may wonder why that was done, but I can only say in defence that it always has been done, and that it is also in the Children and Young Persons Act, 1933. Procedure by Order in Council is provided for in Sub-section (3) in order to allow a certain flexibility in measures to be taken. A Departmental Committee is now examining this matter and will report in due course. Sub-section (4) makes it clear that the Orders in Council for the purposes of this Bill shall not be restricted by the ancient Metropolitan Police Courts Acts.
I must apologise to the House for having spoken rather too long. My hon. Friend the Member for Bodmin will draw attention to other points with which I have not had time to deal, and my hon. Friend the Member for South East Essex (Mr. Raikes), if he is so fortunate as to catch your eye, Mr. Speaker, will at a later stage deal with questions that are raised during the Debate. During the 1947 Committee stage, if the Bill is sent upstairs, I shall be perfectly ready to listen to any reasonable Amendments which may be proposed. I shall look upon them with an entirely open mind, though I believe I may claim that the Bill is well drafted and does carry out in full the first part of the report of the Departmental Committee. I believe that if the Bill becomes an Act it will provide a modest though extremely useful measure of social reform, and if it brings a little happiness to, or removes a little unhappiness from, the married life of this country I, for one, shall be quite satisfied.
§ 11.36 a.m.
I beg to second the Motion.
I think that I shall be expressing the feeling of the whole House when I congratulate my hon. Friend the Member for Penryn and Falmouth (Mr. Petherick) on the admirably clear way in which he has outlined the background, the history and the origin of this Bill. He has also outlined, roughly, the objects of the Bill, the chief of which is to provide machinery for conciliation. I think it is deplorable that this admirable work should be going on without proper encouragement, and, indeed, to a great extent without even legal recognition, and it is with that as the chief aim in view that this Bill has been drafted. He has explained the objects of the Bill, and I wish to explain to a certain extent the justification for the Bill and the need for it.
First I want to say a few words about the extent of the work which is going on and which this Bill will affect. According to Command Paper 4977, in 1933, 13,603 summonses in matrimonial cases were heard by courts of summary jurisdiction and 9,718 orders were made. That does not give any idea, really, of the amount of work that is done, because the Committee, as is shown in their report, were convinced that a very much greater number of people go to see the clerks to the courts, the probation officers, and the various other officials- with a separation order in mind but do not proceed with their application, because they are convinced either that they cannot afford to live apart or that, rightly or wrongly, they have not got legal ground for an application. The type of applicant has been found to be almost entirely 1948 the wives of manual workers and artisans, and also, to a much lesser extent, wives of clerks and shopkeepers, and therefore the work of these Courts is definitely to help the poorer people. They are poor men's courts in more senses than one, because not only are they poor people who go to the Courts but, to a very large extent, indeed almost entirely, they are the wives of those people, and I think that even in these modern topsy-turvy days it is generally the husband who has the control of the money.
I wish to compare the numbers of people who go to courts of summary jurisdiction with these matrimonial cases with the number of cases which start in the High Courts. In 1934 there were 5,046 matrimonial suits in the Divorce Division, of which 1,931 were begun through the Poor Persons' Committee of the Law Society, London. The proportion of poor people who sue in the High Courts has been rising fairly sharply, since 1922 at all events. I am using only the figures which are to be found in the report of the Committee on Social Services in the courts of summary jurisdiction. In 1922 there were 3,004, of which only 843 were under the Poor Persons Rules, and if we compare the higher figure in the year 1934—the figure of 1,931—with the 13,603 applications in courts of summary jurisdiction we realise that these latter are quite definitely the courts which poor people do use. There is, I admit, a provision in the Summary Jurisdiction (Married Women) Act, 1895, Section 10, which enables a court of summary jurisdiction to refuse to make an order on the ground that the matter in question would be more conveniently dealt with by the High Courts, but this power appears to be very rarely, in fact, practically never, used. Therefore, the matrimonial disputes of the poor are for the most part determined by magistrates. So much for the scope of the Bill. It affects large numbers of persons who have, after all, equal rights to justice with other people but who have not necessarily always the means.
I wish to come now to the point which my hon. Friend who moved the Second Reading suggested that I should deal with—the restrictions involved in the Bill. The very word "restrictions" rings most unpleasantly in the ears of any Englishman, and for that reason I 1949 want to show that if possible they are reasonable restrictions, and not very great restrictions at that. The first occurs in Clause and restricts the numbers on the bench to three, instead of there being a full bench to which my hon. Friend referred. In that matter he hoped that we should be preaching to the converted, as I hope that I shall find eventually that I am doing with regard to the whole Bill. The next restriction, which comes in Clause 2, is a restriction on the numbers of persons who may be present in court. A list is given in the Bill of those who may be present and it is, on the whole, a reasonable and a generous list. The main point in creating this list at all is to try to prevent a host of busybody neighbours of the parties to the dispute going along to the court for, very often, purely morbid reasons. [HON. MEMBERS: "Hear, hear!"] That, I see, meets with approval from the House.
There is also this other point of view. The aim of this Bill is to make conciliation as easy as possible, and where a crowd of inquisitive neighbours who may know, perhaps, very little about the story, but who hear that the case is coming up, go to the court, the various unpleasant details of the case may be the subject of gossip for weeks afterwards. It is obvious that with all this talk going on the chances of conciliation between the parties are bound to be very considerably reduced. There is this other point to be considered in the interests of justice, that it is less likely that the parties to the dispute will speak with freedom and lack of restraint in front of an enormous crowd of strangers and of neighbours or, indeed, in front of a large bench, when giving the details of some of the very personal matters which so very often underlie the grounds of application for a separation order. In sub-section (6) there is a provision whereby the witnesses in a case may be excluded from court while the evidence of other witnesses is being taken. This is obviously in the interests of justice, to prevent collusion, and so that witnesses shall not trim their evidence according to the evidence that has been given by other witnesses. What is perhaps more important is the restriction on reports in newspapers, which are dealt with in Clause 3.
Before I go in greater detail into the subject of newspaper reports, it might be 1950 as well to point out that these cases are civil cases; they are personal, and in no way criminal, cases. For that reason the justification for a full press report, which is undoubtedly good in criminal cases, because it shows other people the effects of criminal action and the punishment that will ensue, does not hold good in cases of matrimonial dispute. I have here a bundle of newspaper cuttings. People who read newspapers know that one of the best-known and most efficient magistrates, Mr. Claud Mullins, has continually pleaded in the newspapers against the making of headline news of matrimonial cases. The report of the Committee gives various instances:Husband denounces wife as adventuress and gold digger; other woman threatens suicide.And so on. I have picked up one or two of the actual clippings which I have here with me. Some of the headlines are:Marriage turns out disappointing: rotten husband'and things like that. In some cases, remarks which have been let slip, perhaps not in all seriousness, are exaggerated to an unimaginable degree so as to turn them into headline news. Here is a case, which I will cite in support of my argument, in which a statement was made but was not taken very seriously, that one party to a dispute had not spoken to the other for five years. The result of it was a headline:Twenty years' silence.That obviously, is undesirable. Here is another case:'You want a fresh start?' said Mr. Mullins. 'On one condition', said the defendant, 'that she does not throw up my Army career at me.'Perhaps hon. Members may not know that one of the applicants had had an Army career. He was an ex-service man and, as far as I know, he may not have had a particularly successful Army career; but that sort of report makes both applicant and defendant the laughingstock of the entire neightbourhood, and their estrangement is likely to become greater.
There are more serious cases, in which certain newspapers—few of them, I am happy to say—insist upon an interview with one of the applicants, who may be very young, or buy the story so as to make a splash feature of it. I have one case here, in which real hardship ensued 1951 to the applicants, in spite of the fact that they had become reconciled. They had got behindhand with the instalment payments on their furniture. They were a young couple recently married; they had had their quarrel, and it was probably because of the quarrel that the instalments got behindhand. The case came up, and reconciliation was granted, most successfully, and the couple went back home. No sooner were they home again than the furniture van arrived. The company, strictly in accordance with their rights, because the payments were in default, claimed the furniture, but not because the payments were in default; it was because, they said, all this unpleasant publicity was bad for their business and they did not want it thought that theirs was the sort of business which supplied furniture to that sort of person. This case shows the extraordinary and unforeseeable length to which that type of publicity goes.
The Clause is taken straight from the Judicial Proceedings (Regulation of Reports) Act, 1926, which applies, I believe at present, to divorce cases. Here, again, the restrictions are not oppressive. The Bill provides for the names and addresses and occupations of the parties; a statement of the charges, defences and countercharges; submissions on any point of law, and decisions and any observations made by the court. The Clause gives plenty of latitude, but it does, I hope, prevent the splash headlines to which so much objection can so reasonably be taken. The Bill is not full of new restrictions; it contains one or two Clauses in which a certain amount of restriction is removed. I think Clause 6 is particularly valuable. It deals with people who are not legally represented and who, for that reason, may not be able to put questions in cross-examination with any great degree of efficiency. The Clause says:Where in any domestic proceedings, or in any proceedings for the enforcement or variation of an order made in domestic proceedings, it appears to a court of summary jurisdiction that any party to the proceedings ho is not legally represented is unable effectively to examine or cross-examine a witness, the court shall take such steps as may be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness in the interests of that party, and shall put those questions, or cause those questions to be put, to the witness.1952 That Clause connects with Clause 5, under which probation officers have directionto furnish to the court a statement in writing as to his investigation.Those two Clauses go very closely together. The whole point of the probation officer being allowed to provide the report of his investigation is not that the report shall be used as evidence but that the magistrate, or whoever is to put the questions, shall have some kind of idea of the questions that ought to be put in the interests of the parties concerned. The whole idea, as hon. Members will see from the Bill, is to make conciliation easier.
One more point with which I should like to deal concerns interim orders. It was stated by the Committee to be surprising how few was the number of interim orders that were issued. It is stated on page 17 of the report that of the 6,222 cases with which the Committee specially dealt, 1,776 were heard, but only 68 interim orders were made, compared with 846 final orders. The reason is, to a great extent, because the court has been so busy dealing with every kind of case jumbled up together. The Bill provides that cases shall be heard at particular times, after or before the ordinary business, or whenever it is most convenient. I hope that courts will, therefore, be able to deal more sympathetically with these cases. If they have more time they may not have the same inclination to award final orders and so get rid of the cases, but rather to provide interim orders which will give the parties time to think over what they are doing. There must be many of us who, when faced with important decisions, have been very glad afterwards that we did not take those decisions hastily. An interim Order will give the parties time to think the matter over without the hardship of absence of maintenance, and will enable them to decide how much, after all, one partner in the marriage is going to miss the other. In many cases one does not realise, until one's wife or husband perhaps goes away on holiday, or perhaps has to stay in hospital, or something like that, how necessary they are to one another, and it seems to me that there may be great value in their having an opportunity of trying to see, not only how well they can get on, but 1953 whether they can afford to maintain the two ends of the business separately.
In conclusion, I should like to say that surely there is no doubt in anybody's mind that the family home is the all-important institution in this country, and to its betterment and safety all our thoughts and all our legislation are ultimately directed. Therefore, it follows that any legislation such as this Bill, which is aimed at preserving that family home at a time when it is in real danger of breaking up, deserves the very fullest support. The findings of the Committee show how necessary this Bill is. I would like to confirm the statement of my hon. Friend that the Report makes very easy reading. I feel sure that anyone who has read it is convinced that this Bill should be encouraged, and, to those hon. Members who have not read it, I would suggest that their free moments between now and the Committee stage would be well and enjoyably spent in reading the first part of the Report with which the Bill deals. In the meantime, while they are reading it, I do not hesitate to ask them to give the Bill a Second reading.
§ Mr. Liddall
On a point of Order. May I be permitted to ask my hon. Friend if he would explain one point which he has stressed?
§ 11.57 a.m.
§ Mr. Messer
I should like to congratulate the Mover and Seconder of the Bill on speeches which, I think, have been of the utmost value to the House. The Bill, in my view, is one possessing great social value. Those of us who have had any experience of sitting on the bench in a court of summary jurisdiction must all be aware of the feelings with which they deal with cases of matrimonial discord. 'There can be no doubt that from the very outset people who bring their cases to a criminal court are at a disadvantage from the standpoint of having their differences reconciled, and that arises at the beginning from the atmosphere of the court. If there is one minor criticism of the Bill that I would make, it is that in separating 1954 the business it does not go far enough. To deal with a domestic case prior to the ordinary cases being dealt with, or after the ordinary cases have been dealt with, does not entirely remove that atmosphere, and I would have preferred to see cases of this description dealt with, as so many children's cases are, in an ordinary room where there is no evidence of its being a court of justice. These people are not criminals; they have not done anything beyond discovering that there is an absence of suitability, that there is something in one or the other of them which may make it difficult for them to live together.
During the 12 years I have been on the bench I have learned that the very fact of giving evidence in a case of this description tends to militate against conciliation. If one of the parties is eager to prove his or her case, and in that eagerness is led to exaggerate differences which have existed, the consequence may be the development of a degree of bitterness which makes reconciliation more difficult. If it were not necessary for that evidence to be given in the way that it is, I think a great step forward might be taken, and I approve, therefore, of the provisions that make it possible for bringing into direct contact with the parties an officer such as the probation officer. We are finding more and more in the courts that the social aspect of the court is of value when cases are handled by tactful probation officers, and in many of these cases of matrimonial difficulty reconciliation is by no means impossible when the matter is handled by people who know how to handle it. Often a bench of magistrates seem to be seized with the idea that their job is to find that one party is in the wrong, and to make an Order accordingly, rather than to put in motion machinery which might render unnecessary the making of any Order at all.
The point next in importance that strikes me is that of granting assistance to the party who is not legally represented. Here again experience helps us. Usually we find that, when a woman takes out a summons for persistent cruelty, failure to maintain, or desertion, the man is legally represented, because he is the wage-earner and is able to afford a solicitor, but that the woman, who has been deserted or has been badly treated or kept without money, is not able to afford legal assist- 1955 ance and when a lawyer gets on the job, and his business is to prove that his client is right, in doing that he does not study the feelings of the other party in the case. We often find that a woman under cross-examination will hastily answer a question, and later on will contradict herself in answering another question. A discerning and discriminating magistrate can see the reason why she has appeared to contradict herself, but the fact remains that she is not shown up in the best light when she is in the hands of a trained lawyer whose job it is to prove that she is wrong. I am glad, therefore, that the Bill contains a provision that a party who is not legally represented may be given assistance, though I should have preferred the provision of the same type of legal defence as the other party in the case is able to have.
There is one other point which, perhaps, can be dealt with in Committee, and that is in regard to the panel of magistrates who deal with the case. I do not know how the situation is going to be dealt with in the light of the words "so far as practicable." That is a very wide phrase, and may mean anything. It might mean that, when the bench are deciding on the panel that is to sit to hear these cases, they may for some reason think it is not practicable that the panel should include a women member. I should like to see every such panel include a woman member, unless there is no woman magistrate on the bench at all, because I think it gives a sense of confidence to a woman who is the plaintiff in a case to know that there is a woman there. She is able to talk to a woman with greater fullness than to a man, who may be getting on in years and whose very appearance bears an air of austerity which is not calculated to enable the woman to state her case to the best advantage.
It is most important that, just as we have decided in regard to children's courts that there must be a definite panel, so we should decide in courts of this description. I should like these cases to be heard in the evening, in an ordinary room, without policemen in attendance, and without the officers of the court. We who speak in this House have some experience of the difficulty of saying what we want to say in the way we should like to say it at the time when it ought to 1956 be said. If that is true of those of us who are experienced in putting our point of view and expressing our opinions, how much more true is it of a woman who, probably, has never done anything in the way of talking other than to her husband, which may have been the cause of the trouble—an entirely different type of talking from that which is expected in a court. Many clerks of courts are very particular that the rules should be observed with an almost scrupulous regard that they shall not be departed from in any degree. I have received private information in regard to one of the supporters of the Bill which I am not going to make public, but I wish him every happiness, and trust that he will obtain the fulfilment of his hopes in the passing of the Bill.
§ 12.8 p.m.
§ Mr. Liddall
The point on which I attempted to intervene a short time ago has reference to Clause 2 (2) the desirability upon which we all agree, of having the court kept as clear as possible from the curious and from partisans. I was anxious to know how the hon. Member was going to bring that about under the Bill in its present form. Paragraph (b) of the Subsection says:and other persons whom either party desires to be present.—At times in certain cases the man or woman has quite an army of followers. They come to the court and, if the man or woman goes to a policeman at the court door and says, "I desire all these people to come into court," what is to stop them under the Bill?
§ 12.10 p.m.
I congratulate the hon. Member for Penryn and Falmouth (Mr. Petherick) not only on the able way in which he has introduced the Bill, but in being able to bring forward a Measure which, obviously, has such support from all parties. I think every one will wish him success and will congratulate him on carrying off a double event before five years' membership of this august assembly. The hon. Member for South Tottenham (Mr. Messer) was discreet in his reference to one of the people who are connected with the Bill. I am not going to follow his example. I am going to say that we offer to the seconder our congratulations on being able to produce such a marvellous political birthday present for 1957 himself. I have no expert knowledge of any of these cases but, as one of the backers of the Bill, I should like to say that outside in the country it has the support of very many who have experience of dealing with the cases that come within its ambit; indeed, people who through various voluntary organisations spend their lives in dealing with cases of this kind are extremely glad that the Bill is now before the House. It must be a source of great satisfaction to the mover to know that he has introduced a Bill which is so needed, and which has the support of all who are thoroughly qualified to speak on matters of this kind.
I should be very sorry if the hon. Member for South-East Essex (Mr. Raikes) had no question to answer so, lest he should find himself in that untortunate position, I propose to ask him a question in order to have the pleasure of hearing his reply. It relates to Clause 3, which deals with the restriction on the publication of proceedings in the Press. Specific reference is made to proceedings in relation to the Guardianship of Infants Acts, 1886 and 1925, and the Summary Jurisdiction (Separation and Maintenance) Act, 1895 to 1925, but there is no specific mention of the Bastardy Acts, whereas in the Schedule the Bastardy Acts are mentioned and they, as well as the other Acts, form the basis of the Bill. I should very much like to know whether that omission was intentional. I have no doubt that there is a reason but, if it was an omission, there will be an opportunity in Committee of putting it in. If it was left out for some good and specific reason, perhaps my hon. Friend will inform the House of the reason.
I am particularly glad of the permission given to people to obtain evidence through probation officers. I particularly welcome that Clause in relation to affiliation orders, because it must be obvious that the unmarried mother is in a particularly defenceless position in obtaining evidence of the means of the man concerned with her case. That is a most valuable addition to the Bill which will be widely welcomed throughout the country by all who deal with the cases of unmarried mothers. I am also extraordinarily glad that Clause 6 has been inserted dealing with the provision of legal aid.
1958 As a Member of Parliament I have had experience of cases in which the defendants have been unaware of their rights. In this country we make every possible attempt to see that justice is accorded to the poorest people and those who have no opportunity of getting proper legal advice, but sometimes I think that those who have the power of giving information to people do not appreciate the necessity of stressing that poor man's legal aid is obtainable. We do not always realise how very frightened are people who are called to court. I remember very well a case in which one of my constituents received, on behalf of her small boy, a certain charge. She thought that she was taking her boy to court to appear as a witness. She had no idea that the boy was in fact to be prosecuted, and she was so dumb with fright when she got to the court that she did not even take in what was said to her about her right to obtain a poor person's legal aid. She had no witnesses. The case was decided and her child was sent to an approved school for two years. She came to me, and when I heard her story I realised that she had in fact very valuable witnesses who had never appeared on her behalf in court. I was able to get poor man's legal aid for her, the case was reheard, and the boy was brought back from the approved school and reunited with his mother.
I instance that only because I appreciate that it is necessary sometimes to tell people over and over again what their rights are, and I feel that the inclusion in the Bill of this particular Clause will make it certain that people who are frightened and who are not capable of knowing what their rights are under the law, will be told, and that there will be no fear of their giving evidence in court without their being properly and legally advised. I shall not detain the House any longer. I wish the Bill the very best of success. I am very glad indeed that my hon. Friend has introduced it and that he has the support of all parties in the House.
§ 12.19 p.m.
§ Mr. Kingsley Griffith
I congratulate the supporters of this Bill both on their choice of subject and on the admirable way in which they have introduced the Bill. I and my friends intend to support the Bill at every stage, and I think that 1959 the best service I can do at this stage is to make as short a speech as possible. I want to call attention to one matter which arises out of the question put to the hon. Member for South-East Essex (Mr. Raikes) by the hon. Lady the Member for Wallsend (Miss Ward). In Clause 2 Sub-section (2, b) there are the words:and other persons whom either party desires to be present.I appreciated the purpose of the question, but it seems to me that we cannot altogether exclude that class of persons. A woman particularly might desire to be accompanied by her mother or aunt or some friends in order to give herself confidence. I extend my observation rather farther and say that I approached this Bill in the first instance with a prejudice against Clauses 2 and 3 only because I have always desired all matters connected with the administration of justice to be accompanied by the greatest possible publicity. I am convinced by the arguments put forward by the Seconder of the Motion that the proposals in the Bill are necessary and desirable because of the special class of case with which we are dealing, but I should not like it to go out from this House that we lightly accept restrictions upon the fullest publicity in matters relating to the administration of justice. Let it be clearly understood that it is the very special nature of this particular kind of procedure which impels us to accept provisions such as are inserted in the Bill, and I hope that in Committee we shall not have a series of Amendments which will make still more stringent the necessary restrictions, as I believe them to he, which are at present included in the Bill. Once again I congratulate those who have brought the Bill forward, and I wish them the greatest success.
§ 12.22 p.m.
§ Sir John Withers
I would also congratulate the Mover and Seconder of the Bill. They explained its provisions most admirably, and on the whole I think the Bill as it stands is very good indeed. There are, however, Clauses which will have to be very carefully considered in Committee, and dealt with by the Law Officers of the Crown if they will attend. There are one or two things that I would mention. I thoroughly approve of Clause r, which provides that there shall be one woman in courts of summary juris- 1960 diction for domestic proceedings. I hope very much that there will be no question about that. In Clause 2, which deals with sittings of the court, I think there ought to be a provision that the sittings ought not to be at the beginning or end or middle of the ordinary court, but ought to be a quite separate thing on a separate day, so that there may be no possible question of mixing the proceedings with ordinary business and getting the ordinary crowd present. That is very important. In Committee a provision might be inserted to ensure that arrangement.
I thoroughly sympathise with what was said by the last speaker about the exclusion of people, the ordinary public, from courts of justice generally. There is not only the difficulty raised by Clause 2 in Sub-section (2, b), which refers to "other persons whom either party desires to be present," but also in Sub-section (2, e) there is a reference to those "who appear to the court to have adequate grounds for attendance." I do not quite know how that is to be arranged. Have these people to apply beforehand and what are "adequate grounds?" Personally, I have the greatest reluctance to shut out the general public from courts of justice, because I think the attendance of the public is a great deterrent against evil doing. A man who behaves badly to his wife wants to be shown up, so to speak, but at the same time this domestic jurisdiction has to be carried on in an atmosphere of privacy. It is not uncommon in the High Court for a great deal of work relating to infants to be done by judges in chambers for the purpose of privacy. My hon. and learned Friend the Member for North Hammersmith (Mr. Pritt) will confirm me in that statement. There is no difficulty whatever about it and no miscarriage of justice occurs.
Clause 3, which deals with the question of the publication of reports, is also good; there is no possible doubt that that is right. There is no reason at all why that restriction should apply only to the High Court. One of the principal reasons against reporting evidence in full is the great difficulty of getting independent witnesses to come and speak. If what they say is to be reported, along with the cross-examination and so on, they are very reluctant to come to the Court, and it interferes with the course of justice if all 1961 the evidence is published. Clause 4, which deals with the procedure in certain domestic proceedings, ought to be very carefully looked into in Committee. The "statements of allegations" have to be very carefully drawn up. Probation officers are, no doubt, extremely helpful to the people who are parties to the suit, but the statements will have to be very carefully scanned. I am very glad to see that they are not to be received as evidence. I am not quite sure what is meant in Clause 6 by the words—take such steps as may be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness in the interests of that Party.This ought to be very carefully explained in Committee. I hesitate to say anything about the poor person's procedure in the presence of the hon. and learned Member for North Hammersmith, because on the last occasion he was very angry with me and said that I had been rude to him. I apologise, because I do not wish to be rude to anybody. At the same time, this Bill and the Marriage Bill, if they become law, will open up a very great vista for poor persons, and will facilitate matters and enable them to obtain their rights, and also save an immense amount of time. I agree with him that, if it is to be effective, very much more will have to be done than is done at present. Some new organisation will have to be set up. The other parts of the Bill, on the whole, are all right, but, as I have said, they will have to be looked at very carefully. Subject to these remarks, I have very great pleasure in supporting the Second Reading of the Bill.
§ 12.28 p.m.
§ Mr. Macquisten
I, also, wish to add my congratulations to the promoters of this Bill. It is a very sensible Bill, and shows a profound knowledge of human nature on the part of those who have instigated and presented it, especially in regard to the Clause about restricting the public from the Courts. The hon. Gentleman said that a woman might require her mother, but the mother may be at the bottom of the dispute. I think that there is something to be said for the man or woman who might have one or two friends but not free access to all and sundry. That could be avoided quite easily by putting in a Clause restricting 1962 to one or two friends, but I would certainly not allow them to bring down to the Court supporters to sit at the back. It is very often neighbours who cause the trouble between the parties. A wife may have been dejected because of a fancied neglect, and she gets neighbours to sympathise. with her, and before you know where you are, trouble arises.
I remember the case of a very wealthy citizen in Glasgow who left his country house to live in Park Terrace, which is the Carlton House Terrace of Glasgow. He was a person not too refined, but had a great deal of money. His friends said, "How do you like living among the aristocrats of the place?," and he replied "They are very interfering." He said, "The wife and I were having a bit 'tuilzie,' that is, a quarrel, on one occasion, and they had the cheek to send for the police. I have now bocht the twae houses on either side, and I keep them empty so that my wife and I have leave to quarrel in peace." Those houses then cost 10,000 or £15,000 apiece. As to a statement by the probation officer, this might not be evidence or proof in a case, but if a man or woman sat down and were talked to in a friendly fashion, it might do a great deal of good. The strain of giving evidence is very great, and even members of the legal profession do not like to go into the witness box themselves any more than surgeons like being operated on. In cases of this kind, where there is much human nature and sensibility, some provision to prevent publication of evidence is necessary.
The Clause which deals with reasonable grounds for attendance should be withdrawn. It is far too wide. After all, these disputes are between the parties themselves, and the less the public have to do with them the better. It is a question of privacy entirely, and that is why I object to authorising the presence of representatives of newspapers and news agencies. Why should they be there to get cheap copy out of headlines, as the seconder of the Motion has shown? They should not be there at all. It is none of their business. It is a dispute between husband and wife. It is not a criminal offence. Why should they be there for the purposes of the Press? In some cases recently we have seen a great lack of respect for the sanctity of the domestic life of people suffering from serious 1963 trouble. Why should the Press obtain this privilege? It does not interest them in the least. It is usually only the neighbours next door who know about these cases, and, therefore, why should people be pilloried by having their names and addresses and occupations published? There is no reason for it. There is no necessity even for the names of witnesses in these cases to be mentioned. They should be referred to as "A" or "B", and so on. The publication of these cases make it much more difficult for the parties to come together again.
A very wise suggestion was made that all these alimentary allowances should be made interim. It is not in the Bill, but should be put in, so that the parties can come up again after six months. After a year or two they might get awfully tired of the expense and trouble of living separate and they might well become reconciled again. But if you put details in the newspapers, and they are pilloried; if the names and addresses and occupations of witnesses, the cause and grounds of the application, and countercharges upon which evidence is given are published, you have no chance of bringing about a reconciliation. Why should we make this sort of provision? It does not help the administration of the law. In cases of crime, and civil conduct, other than marriage, there may be reason for publication, but in cases which are purely disputes between the parties, why should representatives of newspapers or anyone else sit round the table and hear what the row has been about? It is not good for any of them. It is often only out of idle curiosity. I would exclude them entirely. There is no need for it.
With regard to Clause 6, I agree with the provision that ifit appears to a court of summary jurisdiction that any party to the proceedings who is not legally represented is unable effectively to examine or cross-examine a witness, the court shall take such steps as may be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness in the interests of that party.The court ought to ask such questions as it thinks fit. I recall that on one occasion a celebrated Scottish Judge, Lord Young, in the Court of Session, thought that counsel on one side had not handled the case properly, so His Lordship took the 1964 matter in hand and proceeded to put questions. After his Lordship had finished, counsel on the other side remained silent, and His Lordship said: "What are you waiting for?" Whereupon counsel replied, "I am waiting for your Lordship to call your next witness." But that was where there was a real litigation. Here there can be no objection to the court asking questions; indeed it is right and proper that they should do so, not for the purpose of showing any sympathy with one side or the other, but in order to bring out the real facts. There is nothing more pathetic than to think how antiquated, how difficult and how hard our courts of justice are on the ordinary litigant. On one occasion an American said to me, that one of the greatest solvents of difficulties and one of the greatest social cements was to have ready and cheap access to the courts of law, but he pointed out that in America the cost of even the initial writ was beyond the reach of more than 25 per cent. of the citizens.
It is a great pity that that state of things exists in this country to a large extent. The cost, the delays and the difficulties of legal proceedings are such that very often people will submit to great injustice rather than go to court. My hon. Friend the Member for Cambridge University (Sir J. Withers) will agree with me that the first business of a lawyer who knows his business is to keep his client out of the law courts, because of the cost and the difficulties that arise.!In these disputes arising out of ordinary domestic relations, very often the result of friction or temper between the parties, there ought to be some vehicle, some means of reaching conciliation apart from the ordinary judicial proceedings, somewhat on the lines of the intervention of the wise friend who is sometimes called into council in family disputes. This Bill takes a step towards that end, but the procedure under it ought to take place without any publicity, because it is an affair between the man, his wife and the conciliation court, and is nobody else's business. These Clauses might be very much strengthened in Committee.
§ 12.38 p.m.
§ Mr. Cecil Wilson
I should like to join very heartily with other speakers in congratulating the Mover and Seconder of the Bill, which I regard as a very 1965 valuable provision towards an improvement of the law. Those of us who have sat on the magisterial bench must have been impressed by the changes that have come over them gradually for some years past in the kindlier way of looking on these distressing cases which come before us. At the same time we must recognise that there is a great deal more that could be done, and I think this Bill will contribute greatly in that direction. I join with what has been said in regard to the presence of officers of the court, and I hope that it may be possible to get as far away as is reasonably practicable from the idea that the procedure is that of a court of summary jurisdiction. The more the procedure can be of the nature of a court of reconciliation, which I am sure is the intention of the promoters of the Bill, the better.
I suppose that all of us at different times have been conscious in certain cases that when a witness has been giving evidence it has not infrequently happened for the witness to keep his or her eye upon somebody else in the court who would make signs or give a wink or a nod as the case proceeded. If it were practicable for the proceedings to be something in the nature of a preliminary interview with the two parties concerned, and for the so called court to interview the applicant alone and then to hear the other party, without the presence of any one else, it would really tend to reconciliation being brought about. Whether or not that may be practicable I am sure that the whole tendency of the Bill is very valuable, and I have no doubt that the House will give it such support as it deserves.
§ 12.42 p.m.
§ Sir Edward Campbell
May I, also, be allowed to congratulate the Mover and Seconder of the Bill? We who are getting on in years are always delighted to find that there are men coming on who not only have a good case but know how to express it. The way that the Second Reading of the Bill was moved to-day was admirable, and in keeping with the highest traditions of the House. I am very much interested in the Bill. I occasionally sit on the magisterial bench, especially in the juvenile courts, and am particularly interested in anything that has to do with young people. I agree with what has been said, that the people concerned in these cases and who appear 1966 in the courts are not criminals. They go there to put their case before the court, and I should like such proceedings to be heard in a private room round a table with as few people present as possible. On that point I am afraid that I must disagree with my hon. Friend, because when there are Nosey Parkers, busybodies about, one does not get the real feelings of the people concerned, although perhaps on other occasions when things are more serious it may be good to have publicity.
For a year or two I was chairman of the Staffs Appeal Committee of the London County Council and when people came before us I often found that when they had no representatives to speak for them they entirely misstated their case, not that they wished to tell untruths, but they did not really know what they were saying. They contradicted themselves to such an extent that as chairman I often had to intervene and say "I presume that what you meant to say was so-and-so." "Yes, Sir," they would reply, whereupon I remarked: "Well you have said quite the opposite." These cases should be carried on more in the nature of intimate discussions, in which the people might be considered to be chatting rather than making a speech. If that course were adopted, the procedure would be very helpful. It might be advantageous from time to time to adjourn the proceedings and allow the interested parties to come back a month or six months later after they have considered any advice which may have been offered to them.
Perhaps I may be allowed to give a personal incident which happened in my career. At one time I was British Consul in the Far East, and when I was leaving a Scotsman said to me, "Mr. Campbell, we are really sorry that you are leaving us. You are the finest consul we have ever had." I said: "Do not talk nonsense, but seeing that you have made that statement, I should like to know why you think that I am the finest consul you ever had." "Well, he replied, we of the British community here come to you from time to time with our troubles; it may have been about our business, or about our families, or about a row with the wife or the children, and you have said" sit down, have a cigarette, and we will talk for five minutes. We used to sit down and tell you our troubles. Then you 1967 would say, Very good, I will think it over and see what I can do for you? And you never did a darn thing." I think it was meant as a compliment. At any rate, I have always remembered it, and I think there is a good deal of truth in it.
People like to go to someone who, they know, has sympathy with them and that what they have said will not be passed on to anybody else. In our difficulties it is always helpful to be able to go to someone and talk them over. From what I have seen of them I think the probation officers will be very helpful. I hope that as much use as possible will be made of them, provided you have the right person. The Bill deals with the kind of cases which might very well be heard in a manner similar to juvenile cases. People who have got a little bit apart from each other for one reason and another, if they can find two or three sympathetic people discussing their difficulties, and are given a certain amount of time to consider the advice which may be offered will, I think, come to realise that they are like many of us, very foolish.
§ 12.47 p.m.
§ Mr. Pritt
Like most hon. Members, I support the Bill. I do not want the House to look upon it as a modest Bill. I regard it as a Bill which has some formidable but very valuable innovations in it. It is more a revolutionary than a modest Bill, and that may be why I have pleasure in supporting it. Hon. Members, particularly hon. Members of the Conservative party, have pointed out the extreme difficulty which poor men have in making their cases understood in our courts of law. I have been writing that for years and years, and half of my profession hate me like poison for having done so.
§ Mr. Pritt
I am afraid that when I was writing I did not obtain easy access to the journals which the hon. Member probably reads. But, at any rate, I tried and failed, and I shall never trouble to write these articles again. I shall buy a few copies of the OFFICIAL REPORT of 5th February and send them to anybody who wants to write articles, saying that the sentiments expressed by Conservative hon. Members are my sentiments, and that they need not worry any further. 1968 A very great deal has been said this morning about reconciliation. I agree, and I was glad to hear the hon. Member for Penryn and Falmouth (Mr. Petherick) say that while reconciliation was a very good thing, and that these people were not criminals, yet if conciliation did not succeed, they were litigants and had a right to have their cases decided by the courts. In saying that I do not mean to raise any objection to the informality and easiness introduced into our procedure, indeed, I think Clause 2 might carry the matter a little further than it does. With regard to what the hon. and learned Member for Argyllshire (Mr. Macquisten) has said, I think that it is desirable to have the place cluttered up with busybodies and Nosey Parkers and to have things splashed across the newspapers, but for the reasons given by the senior Member for the Cambridge University (Sir J. Withers) some of these cases may involve litigation of a serious kind, concerning the status and happiness of people and large sums of money, and it may be that if these cases take place without any public ventilation at all, the procedure may lend itself to all sorts of evils, casual misbehaviour and gross licence on the part of witnesses who may think that they will never be discovered. That may be a greater evil.
There is a valuable provision in Clause 4 regarding "statements of allegations." I want to utter a word of criticism in regard to Sub-section (3), which says:Where statements of allegations have been furnished to the court and delivered or sent to the applicant and the defendant under this section, the court may, if it thinks fit, make use of the statements of allegations for the purpose of asking questions of any witness, so, however, that nothing contained in a statement of allegations shall be received by the court as evidence.That means that you give a magistrate in effect a sort of proof, and he uses this sort of proof as of very great assistance to him in eliciting the story from the witness, but if the witness does not follow the proof, or other evidence is given against it, the magistrate is to eliminate the proof entirely from his mind. I am very sorry, but he will not. A trained lawyer finds it difficult, and an untrained magistrate finds it impossible. In this choice of evils, however, I would rather see the Sub-section in the Bill, and I hope it will be made to work, because if it works tolerably well it will be better than if it were not in the Bill. The hon. Member 1969 for Wallsend (Miss Ward) will forgive me if I make one or two criticisms on the points she made. I am not sure that the Bill does what she thinks it does. She welcomed Clause 4 as being of great value in affiliation cases. Textually the Clause may apply to affiliation cases, but a great many courts will think that the idea of effecting reconciliation between the parties is primarily intended as between married couples and not as between unmarried couples. There is no reason why it should be, but they will be reluctant to effect a reconciliation between unmarried mothers and the fathers of their children.
Sub-section (4) of Clause 5, providing that statements made by probation officers, even in the limited area of the Clause, shall be received by the court as evidence, is a highly revolutionary provision. It is a thing, quite frankly, for which I have been longing for a very long time. It may be a most valuable experiment, but it is a pity that the experiment should be made on the poor. Experiments are always made on the poor. But I think it will prove that our laws of evidence, which have a valuable side as well as a bad side, will be demonstrated to be more bother than they are worth, and that this will be the beginning of the death blow to the rigidity of our rules of evidence. I welcome that.
With regard to Clause 6, I think the hon. Lady the Member for Wallsend thought that Clause meant that the court was to take such steps as might be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness by getting some legal representation for the witness. I wish that were so. I hope the Clause will be amended so that it does have that effect, but I feel confident that it does not have it as it stands. I think that any magistrate's clerk will tell the magistrate that what he must do in those circumstances is to be as patient and careful as he can in order to get the witness to give any sort of hint he can as to what he is driving at, so that the magistrate may examine the witness and see whether he can get to the bottom of the story.
It is almost a denial that this is a civilised country when a large part of the population has to get its litigation done in that way. People who can afford to hire lawyers do not have their litigation done in that way. Lawyers may have 1970 their defects, but they must be of some use or they would not survive in such numbers, and one of their uses is that a person can go to a lawyer's chambers before the case comes on, the lawyer can discover what the facts are and what is the best way of meeting the facts that are likely to be advanced on the other side, and he can go into the court and ask a fairly good number of right questions and not too many wrong ones. But the magistrate will not have looked at the case beforehand, he will not have read any documents about the case, he will not know the facts, and he may put the most fatal questions. Probably if he tried to make a living as a lawyer, he would break down. Why should any litigant have inflicted upon him that utterly inadequate method of conducting his case?
§ Sir J. Withers
Would not the magistrate have the reports of the probation, officers in these particular cases?
§ Mr. Pritt
They would in some, but not in others. I hope that at a later stage some Amendment will be brought forward on this Clause which will lead to some form of representation being provided for these people whenever it appears reasonable or necessary. If one of these cases is taken into court, as it is proposed, either now or after this Bill is passed, and someone suggests that a poor man's lawyer should be obtained to represent the person concerned, let it be remembered, to the eternal shame of this country, that there is no machinery and no power of any description—it is a private charity—which can get that person a lawyer for five minutes. Th3t is one of the reasons I welcome this Bill.
I believe that if this Bill becomes law, that iniquity will be exposed so much more than it has been exposed in the past that it will lead, in the near future, to proper machinery being supplied for the provision of poor men's lawyers. I welcome this Bill because it is a good one, but an additional reason for my welcoming it is that I believe that, if it is passed into the law and worked properly, the defects of our magisterial system, the severe limitation in numbers and occasionally also in quality of our probation officers, and the deplorable lack of opportunities for the provision of legal assistance for poor people will be so exposed that those defects will be 1971 remedied much more quickly than would otherwise be the case. If we can add to that also the fact that we demonstrate to the world that we can still litigate, while enormously simplifying our procedure and rules of evidence, the Movers of this Bill may come to the conclusion in ten years' time that, not only have they benefited a few people, but have done a very great deal for all poor people.
If the hon. and learned Member will allow me to correct him, I did not refer to Clause 4, but to Clauses 5 and 6, which deal with investigation of means and the appropriate means for magistrates to deal with the examination of witnesses. I did not refer to conciliation with regard to affiliation orders.
May I say that if I did refer to Clause 4, it was in error? The context of my speech made it plain that I was really speaking about Clause 5.
§ 1 p.m.
§ Mr. Storey
In joining in the general support of this Bill, I wish to deal briefly with those Clauses which have relation to newspaper reports. These provisions are a regrettable necessity which ought never to have become inevitable. If newspapers generally would, as many newspapers do, deal with matrimonial cases in the police courts in the spirit, if not in the strict letter, of the Judicial Proceedings Act, no necessity would have arisen for further restrictions. Freedom of the Press is an essential condition of the successful working of the modern democratic state, but that freedom must be exercised with a full sense of its responsibilities and privileges, and must not be construed as licence. Unfortunately, a section of the Press, comparatively small in numbers but large in terms of circulation, has built up that circulation not by fulfilling its duty of informing the public, but by satisfying the public appetite, which undoubtedly exists, for sensation and for the seamy side of life. To pander to the public in that way is to construe freedom as licence, and it is because this Bill restrains licence rather than restricts freedom that I welcome it.
1972 I turn now to the actual proposals of the Bill. I can raise little objection to Clause 3; in fact, I would like it to be widened so as to prevent the unedifying and growing practice of interviewing those persons who have been through the divorce courts or have been concerned in matrimonial cases in the police courts. If we could find some means of stopping that practice, it would be all for the good. I think that some definition of the phrases used in the Clause could be included with advantage. Some small additions to the facts which might be published, which would add to news value without offending against the spirit of the Bill, might also be usefully made. There might also be some slight changes in drafting to secure that what has become the established practice under the Judicial Proceedings Act, namely, that no evidence should be reported until the evidence has been completed, should apply in this Bill. However, those are matters which I feel can better be raised in the Committee stage.
I think it would be desirable to widen the provisions of Sub-section (1, b) so as to secure the proper treatment of cases under the Guardianship of Infants Act. Under the Sub-section as drafted, I can see some difficulty in reporting fairly such cases as an application for consent to marriage, for although it is possible to state the grounds for the application, it is not possible to give a concise statement of the facts. The concise statement allowed is limited to "charges, defences and counter-charges" and in such cases as I have mentioned there is none. Therefore at a later stage I would like to see this Sub-section widened in order to permit a concise statement of the relevant facts. Clause 2, Sub-section (3) lays down that the Press can be excluded "in the interests of the administration of justice or of public decency" during the taking "of any evidence of an indecent character." I think this raises an important point of principle. I regard that provision as an unnecessary and harmful restriction of the freedom of the Press. It not only introduces a new reason for the exclusion of the Press which up to now is only possible in the interests of the administration of justice, but it is not, in my opinion, in the best interests of the public. His Majesty's judges have frequently expressed dislike of legislation which tends to the hearing 1973 of cases in camera, and the length at which judges in the divorce court sum up and deliver judgment and by so doing enable the Press to report facts which they could not otherwise report, is an indication that in their judgment it is in the public interest that the full facts should be known. The deterrent effect of fair publicity should have full play.
Then, too, I think the presence of the Press is a valuable corrective to magistrates with strong personal views, religious or otherwise, on these matrimonial matters, particularly as not only do magisterial temperaments vary but they are sometimes inclined to be arbitrary. Further, no two magistrates are likely to agree on a definition of public decency. There is another good reason why the Press should not be excluded. Under the Bill, a concise statement is permissible of the charges, defences, and counter-charges in support of which evidence is given. If the Press is excluded during part of the evidence, the concise statement can easily include facts about the charges allowed under the Bill, but rebutted by evidence which is given while the Press is excluded and which may not be referred to by the court in summing up or giving its decision. In such circumstances where will the Press stand? Is it debarred from subsequently doing justice to the aggrieved party by publishing an explanation, or is it liable to an action for libel on the ground that its report is not fair and accurate? I submit it would be better to allow the Press to be present, and to know the facts and to be able to weigh the evidence and prepare a fair and accurate concise statement. If that were allowed, then you could strengthen Clause 3 by prohibiting, as in the Judicial Proceedings Act, the publication of any indecent evidence.
Subject to what I have said, I feel that the Bill does not harmfully restrict the freedom of the Press. It will certainly curtail the licence of a section of it. I hope, however, that the promoters will at a later stage endeavour to meet the views which I have expressed. After all, the larger section of the Press desires to and does perform its functions with decency and moderation. That section ought to be encouraged and not penalised for the faults of others. It is very difficult for that section of the Press to find any means of controlling the defaulters. In practice, 1974 control can only be exercised by the weight of public opinion, or by the action of the legislature. Failing the exercise of control by public opinion by a refusal to buy the newspapers that do these things, the legislature must take action. I only ask that, in taking such action, it shall not penalise the innocent with the guilty.
§ 1.10 p.m.
§ Mr. Raikes
I support the Bill with particular pleasure because I spend so many Fridays in opposing Private Members' Bills of a different type. Almost all Bills are bad, and it is a pleasant thing to find that we have before us to-day a Bill which everybody in the House seems to regard as being, on the whole, a good Bill. I wish to deal briefly with certain points which have been made in the Debate, and first, with what the hon. Member for Sunderland (Mr. Storey) has just said in regard to the presence of the Press at the hearing of these cases. The provision in Subsection (3) of Clause 2 is that during the taking, in any domestic proceedings, of any evidence of an indecent character, the court may exclude the Press and others. I think the real object of that is to assist the parties to a domestic dispute to have the greatest opportunity of saying with ease to themselves everything they wish to say in regard to that dispute. I agree that a considerable section of the Press take a very high line and a very proper line in regard to the reporting of cases of that character. It is only when a certain sensational section of the Press have taken these matters up that difficulties have arisen. At the same time if you are, for instance, asking a woman to give very intimate evidence in regard to her married life it does not make matters easier for her if she knows that she is speaking in the presence of people who are not actually concerned with the case. I hope, therefore, that this provision will be retained simply for the benefit of the people who are giving evidence.
The hon. Member for South Tottenham (Mr. Messer) stressed the view that these matrimonial cases should not only be taken at a different time from the other business of the court, but that they should also be heard in a different room which would be more informal than the large court-room. There is a good deal to be said for 1975 that when you have proper accommodation, but there are many courts, particularly in the country, where there is practically no accommodation available outside the ordinary court-room. In the court where I act as a magistrate, there is only a very small room apart from the court-room. You could, at a pinch, squeeze a number of people into it, but if any considerable number of persons were present it would be necessary to squeeze them rather too tightly to be comfortable, and although we all want informality I am not sure that in a domestic case it is desirable to have the husband and wife too much cheek by jowl when one or other is giving evidence. Indeed, I have known of cases in the ordinary court in which it has been just as well for the peace of the court that the parties have not been within striking distance of one another.
A further point was made in regard to the panel of magistrates. It is suggested that it would be advisable in every case that a woman magistrate where available should be one of the three magistrates to hear these cases. The way in which the Bill is framed makes it practically certain that where there happens to be a woman magistrate who is an ordinary member of the court, she will be appointed almost automatically to the panel of magistrates dealing with domestic cases in that area. If it were made obligatory you might be put in a difficult position. Undoubtedly, a good many more women magistrates will be appointed in the next few years which will be all to the good, but while at the present time you have a number of courts in which you have extremely energetic and intelligent women who would obviously be selected as members of the panel and you have on occasions a court where there is only one lady member who, as a matter of fact, for one reason or another, hardly ever turns up, if you made a woman magistrate obligatory under this Bill, it would mean that a magistrate who would not usually attend and had little experience would be compelled to be brought in for perhaps the most difficult sort of case that justices have to consider, because these domestic cases are much the most difficult of the cases that come before the ordinary courts of summary jurisdiction. If the number of women magistrates increase, you will 1976 find it quite easy to have a woman magistrate in every court, and I think we need have no fear on that score.
A limited court has a further advantage, and again, speaking from some personal knowledge of summary jurisdiction courts, I should like to call attention to this point. As I say, domestic court business is far the most difficult that we have to do, because the slightest slip in regard to a domestic case may mean years of unhappiness for the persons who come before us. In the ordinary way I think our summary jurisdiction courts are quite good, and I do not think it very much matters if you do happen to have a large number of magistrates sitting on the bench in those cases, but there are certain courts where the presiding chairman may be growing very old. He may have been there for a very long time, and he will never be deposed so long as he continues to come, because he is very much respected, although he is getting deaf, it may be, and a little bit past the work. If you simply bring your domestic cases before the full court, you will have as presiding magistrate at times somebody who will not be able to hear a great deal of the evidence, and who will not be the best person to direct the cross-examination of witnesses which is suggested in the Bill. If you have a special, small panel for domestic cases, I think that the presiding chairman, if he is very old, will not be called upon to preside in these cases, so that I think that a panel, if for that reason alone, might very well be justified.
The hon. Member for Lincoln (Mr. Liddall) raised the question of other people to be present in court. I think a reply was given by the hon. Member for Middlesbrough (Mr. K. Griffith) you are bound to have domestic cases where a woman will wish to have the moral support of some close relative such as her mother while she is giving evidence. The hon. and learned Member for Argyll (Mr. Macquisten) suggested that the mother might be the cause of the domestic trouble, but, that would be an additional reason why she should be there, for after all the court is there to discover all the facts in relation to these disputes. The hon. Member for Wallsend (Miss Ward) raised the question on Clause 3 as to why, although reference was made to the Guardianship of Infants Act and to the Summary jurisdiction (Separation and 1977 Maintenance) Act, no reference at all was made to the Bastardy Acts. The reason is simple. In those cases it has always been the custom to permit a certain amount of Press publicity of a kind which would not be permitted in ordinary cases coming under this Bill, and the reason is obvious. You get bastardy cases, I do not say criminal cases, where the man himself may be a public menace in the district, and the Press serves a very useful purpose in showing such a man up, and it is very wise that it should be done in the interests of innocent girls.
I would like, before resuming my seat, to take the opportunity of paying my own tribute to the hon. Member for Penryn and Falmouth (Mr. Petherick) for introducing this Bill. It is a good thing that Parliament should now and again be called upon to discuss Measures which are not controversial and which do not in any way provide sensational copy for ale Press, but which nevertheless do real good and prove that you have in Parliament not simply different sections of men sitting opposite to one other and fighting one other on every occasion, but that when Parliament gets down to fundamentals, men of all parties are prepared to co-operate where they conscientiously can for the common good. I believe that this Bill, if it passes into law, will accomplish a great deal of good and that the hon. Members who introduced it will not be forgotten by posterity.
§ 1.21 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Geoffrey Lloyd)
I think hon. Members will agree with me that we have had this morning a most interesting discussion on a most important matter. The hon. Member for Penryn and Falmouth (Mr. Petherick) opened the debate with a most interesting and valuable speech, and he gave a valuable survey of the past history of this matter. He traced the development of the courts of summary jurisdiction in matrimonial cases and the growth of conciliation in these courts, and, therefore, it is not necessary for me to go over that ground, but perhaps I might be allowed to make a general comment.
The House will, I think, agree that during recent years there has been in this country a great movement towards what one might call the humanising of the administration of justice and of mat- 1978 ters connected therewith. In the criminal courts the offender is now treated, much more than he used to be, in the light of his own individual circumstances, as well as of the formal provisions of the law, and the civil courts have tended to move away from the position of being merely austere administraters of the law, and to take, in addition to that, an attitude in which they desire, if possible and in suitable cases, to be helpful advisers of those who come before them. From a very broad point of view, one may regard the great movement for the improvement of conditions in the prisons as part of this broad, general, reforming movement. The courts of summary jurisdiction have fully participated in this movement, as was shown by the hon. Member for Penryn in his detailed survey. It is perhaps just as well to remember that a great deal of the motive force behind that improvement has come from the justices themselves, arising out of their experience in the work of the courts.
This process in the courts of summary jurisdiction has special features, arising out of the fact that they have a mixed jurisdiction, both criminal and civil, and I think it is as well at this point just to mention the unfortunate effects that arise from time to time from the popular use of the term "police courts" in regard to courts of summary jurisdiction. Even the hon. Member for South Tottenham (Mr. Messer), with his experience, referred to people coming before "the criminal courts." The position is that these courts have both civil and criminal jurisdiction, and in recent years there has been a great addition to their powers in both spheres of the law. That makes it particularly essential to have special arrangements for the treatment of certain departments of the work of the courts. The work of humanising these courts has been carried a considerable step forward by the work of the Harris Committee. As a result of their report, the Home Office issued a circular to magistrates last July drawing their attention to those aspects of it which could be put into operation without legislation. The greater use of conciliation and of interim orders were two of the important points in the circular.
This Bill really completes the process by bringing into operation Part I of that Report, in that it treats of the matters in that Part in which legislation is necessary. 1979 It deals with the procedure of the courts. I should like to turn to the actual subject matter which comes before the courts, with which the alterations of procedure in this Bill are concerned. Broadly speaking, the matrimonial causes relate to complaints of neglect to maintain, desertion or persistent cruelty, and various orders, such as separation and maintenance orders, are very often made in regard to them. Before the court can satisfactorily deal with these matters it has to find out the cause of the complaint. I discussed this question with some of those whose duty it is to work in the courts, and they tell me that the principal causes of these matrimonal disputes are economic difficulties and sexual maladjustments. Both these matters, particularly the second, are difficult to elucidate. It is not easy to get to the bottom of them. One has to remember also that most of the people appearing before the courts find a good deal of difficulty in stating their cases clearly. In several matters that come up they will be restrained, from one motive or another, in expressing what exactly they have in their minds.
Therefore, the need for an efficient and understanding tribunal is very great. This Bill attempts to attain that object in regard to the procedure of the courts, and I think that the House as a whole agrees that it is a very good object. The Government are certainly friendly to it, and therefore they are friendly to the Bill and hope that the House may take the view that it is worthy of a Second Reading. It is not necessary, in view of the general concensus of agreement that we have had on most of the matters in the Bill, for me to go into the Clauses in any great detail, but perhaps I might touch on one or two matters to which hon. Members have given special attention, particularly where they have raised points of doubt. We all agree, on the whole, with Clause 1 recommending that not more than three justices—to include both a man and a woman—should deal with these cases.
There applies to this Clause, as indeed to the Bill as a whole, a point I would recommend to the attention of the hon. and learned Member for North Hammersmith (Mr. Pritt), who said that he was supporting the Bill because it was a 1980 revolutionary Bill. It is a very peculiar sort of revolutionary Bill, because it is in the main stream of the tradition of British administration and legislation in that what it does is to make general the practices which have been found to be good and which have been adopted by the more thoughtful magistrates. Therefore, if it is revolutionary, it is a very unusual type of revolutionary process. It is one that is essentially in tune with the ordinary processes of the British Constitution. That certainly applies to the provisions in Clause 1. It also applies to the separation of the hearing and determination of these proceedings from the other business. The more one knows about the procedure of the summary courts and the work they have to do, the more essential it appears that this particular class of work should be separated from the other. The hon. Member the Senior Burgess for Cambridge University (Sir J. Withers) said they should always be separated. I can appreciate that point of view, and one would tend to agree with it but for the practical difficulties. In the larger cities and centres of population where there is a great mass of work, the proceedings could be conveniently separated, but in rural areas, where there may be only a little work for the courts, and applications for separation are few and far between, it would not be practicable.
The hon. Member for West Middles-brough (Mr. K. Griffith) and the hon. Member for Cambridge University raised a point about the exclusion from the court of those not immediately concerned with the proceedings. At the Home Office we very much appreciate the vital importance of the principle that there should be proper access of outside persons to courts of law, and also the more general principle laid down by, I think, Lord Halsbury that justice should not only be done but should be seen to be done. The arguments in favour of excluding those not immediately concerned, which have been powerfully put by hon. Members, do, we think, make the case strong enough to go as far as we have gone. I would remind hon. Members that the principle is safeguarded even by the number of people who will actually attend court even in these circumstances, such as counsel, officers of the court, newspaper reporters, and a certain number of others.
1981 I think that the House will agree with me in welcoming the general statement made by the hon. Member for Sunderland (Mr. Storey) on behalf, no doubt, of the great bulk of the Press. Indeed, it is very satisfactory that a spokesman of the Press should take a view so clearly—
§ Mr. Storey
May I make it quite clear that they were my personal views, and not in any way put forward officially as the views of the Press as a whole?
§ Mr. Lloyd
I apologise if I attributed too much to the hon. Member, but I think I may be allowed to say that it is satisfactory that a Member of this House who is connected with the Press should take the view which he has taken to-day. He raised certain other points which, I think he will agree, are Committee points and which certainly ought to be carefully considered. There is one point, in Clause 5, which has not been much touched upon to-day concerning the duties of probation officers in regard to advising the court on the question of means to which we at the Home Office attach a great deal of importance. We are advised that these courts find great difficulty in deciding out of hand what should be the right amount to award in particular cases. They may have a certain amount of information upon the wages of the man concerned, but they do not know the situation accurately, do not know all the circumstances, and Clause 5 will enable proper inquiries to be made on which a much juster order can be issued by the court.
We also attach great importance to Clause 6. In these cases the majority of people appear without the assistance of learned barristers, and there is no doubt that they do need assistance in the conduct of their case, and although the hon. and learned Member for North Hammersmith, I will not say for a moment out of any sense of professional jealousy, did not approve of the procedure, I believe the majority of Members in this House would take the view that sympathetic magistrates who are prepared to work this Clause sympathetically on behalf of those who are poor can do a very great deal of good. I will only conclude by saying, as I have said already, that the Government are friendly to this Bill. No doubt a certain number of matters of importance will arise in Committee, and we at the Home Office would like to do our best to 1982 assist the hon. Members who have brought in the Bill, and the House, to make it as workmanlike and efficient a Bill as possible.
§ 1.38 p.m.
§ Mr. Thurtle
Before the House parts with this Measure I would ask the Under-Secretary to remove a doubt which has arisen in my mind regarding one part of it. In the Explanatory Memorandum it saysProvisions are also made for a restriction on the publication of reports of Matrimonial or Guardianship of Infants cases.That matter is dealt with in Clause 3. I should like to know whether that provision will make it impossible for publicity to be given to cases of ill-treatment of children by guardians, because we sometimes read very horrible cases of that kind, and I think it is an excellent thing that full publicity should be given to those cases. We do not want to allow baby farmers, or persons of that type, to get away, under a provision of this kind, from complete exposure.
§ Question put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.