§ Order for Second Reading read.
§ 4.0 p.m.
§ The Attorney-General (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
The effect of this Bill will be to add two additional judges to the Probate, Divorce and Admiralty Division. One additional Judge will be permanent. The other, after the lapse of a year, under provisions which I shall explain in more detail later, will not be made unless an Address by both Houses of Parliament represents that the state of business in the court requires an additional judge. At present the Probate, Divorce and Admiralty Division consists of a President and two puisne judges. The effect of the will be immediately to increase that Division to a President and four puisne Judges, subject to this, that if a vacancy occurs in that number after a year, so that the total falls to three, the fourth place will not be filled except by an Address from Parliament. If no Address is passed and a vacancy should occur reducing the number from three to two, then that vacancy can be filled without an Address from Parliament.
The reasons for this Bill, which I think will commend it to the House, can be stated in comparatively few words. The reasons arise, first of all, out of the present position in the Probate, Divorce and Admiralty Court, and also from the work which it is anticipated will fall on that Division as a result of the passing of the Matrimonial Causes Act last Session. First, let me say something about the present position of the Court. So far as undefended cases are concerned the position is not causing anxiety, and these cases are being dealt with at a reasonably rapid rate. On 26th October, however, in addition to 10 special adjournments, a number of which have been set down as long ago as March last, there were in the defended non-jury list some 596 cases awaiting trial. That number is not only large in itself, but is 100 greater than the figure of the corresponding time last year, and last year's figure was in itself 90 higher than the figure of the year before.
1438 One, therefore, sees, in this very important part of the list, increasing arrears, which have now undoubtedly reached an extent which requires to be dealt with. There are not only the cases on land, but also at sea. In the Admiralty work last year four more days were absorbed than in any previous year. There is no reason to suppose that there will be a reduction in the demand made on the judges in this Division by any decrease in the Admiralty work. On the contrary, so far as can be anticipated, it is more likely to increase than to decrease. Nor can the arrears be accounted for in any way by illness or some exceptional cause which has ceased to operate. Not only has there been no illness resulting in these arrears, but the existing Judges on many occasions have been sitting beyond the usual hours in order to deal with the pressure of work. That is a fact which would be sufficient to demand the attention of Parliament.
In addition to that it will, of course, be quite obvious to all Members of the House that the Matrimonial Causes Act will throw additional work on the Court. There will be insanity cases which will require not only care, but skilled evidence, possibly on both sides, and it is to be anticipated that to deal with them will require a considerable amount of time. Cruelty cases, in the same way, will have to be taken into account, and also an increase in the number of cases which arise from the fact that this is now a ground for divorce. It is quite impossible to forecast, but it is a fact that this new Act will inevitably increase the burden to be placed on the Court, and that burden will be greater in the initial years than it will be ultimately. The procedure familiar to this House in connection with the ordinary Judges of the King's Bench, the procedure of filling a vacancy not, as it were, automatically, but only if the state of business in the Court requires it, seems an appropriate procedure when, as here, we are dealing in the first place with existing arrears, and, in the second place, with work which will arise under an Act recently passed, when it is difficult to forcast exactly what volume of work will arise under that Act.
I will deal very shortly with the details of the Bill. It is a very simple Bill. Sub-section (1) of Clause 1 raises 1439 the number of puisne Judges from two to four. Sub-section (2) provides for an Address should there be a vacancy in the fourth judgeship any time after a year from the passing of the Act. Subsection (3) also deals with that point. If any hon. Member has read to the end of that Sub-section he may be a little puzzled by the concluding words. Those words are taken from the Act of 1935, and are there in order to meet the extremely unlikely possibility of the appointments of the two additional places not being made in the first instance within a year. Of course the intention is that the appointments shall be made. But the words produce this result: Suppose that the two original appointments were not made within the year, a year having elapsed we would have to come to Parliament for an Address in order to appoint a Judge. It is a small and technical point, and I have explained it in case any hon. Member is not clear as to its meaning.
I see on the Order Paper notice of an Amendment to refuse consent to the Bill, pending the dealing with certain matters. The House will not want me, in anticipation of what may be said on that Amendment, to deal with the points raised by it, except very briefly. I should, however, like to say this: That notice of Amendment proposes, in effect, that the House should not proceed with the Bill until arrangements have been made under which divorce petitions may be heard and determined by His Majesty's Judges in the King's Bench Division sitting in London and at assize towns. In effect, I think that would mean the abolition of the Division, so far as it deals with divorce work and the doing of that work by the Bench. That was a suggestion which was made originally in 1933. It attracted a great deal of opposition at that time, and was reconsidered by the Royal Commission, on which my hon. and learned Friend the Member for Montgomeryshire (Mr. C. Davies) sat. The majority on that Commission advised against it. My hon. and learned Friend, in a Minority Report, was not convinced by his colleagues. He thought, and still thinks, that it is a good proposal.
All I can say to him now is this: In this Bill we are seeking to deal with an immediate need, which I think the whole 1440 House will agree must be dealt with, and that the only result of rejecting this Bill would be to pile up arrears in the Divorce Division. I, therefore, hope that my hon. and learned Friend will not press his Amendment to the stage of asking Members of the House to reject the Bill. No doubt my hon. and learned Friend will amplify the views which he has put before us in the past, and I hope he will live to amplify them in the future, but I suggest to him that this particular moment, when the House has recently passed a new Act bringing into operation new bodies of law practice and procedure in connection with divorce, is not perhaps an appropriate moment to make the changes which my hon. and learned Friend desires to be made.
§ 4.14 p.m.
§ Sir Stafford Cripps
This is truly a very simple Bill, and we shall all agree with the proposition that justice, in order to be efficient, must be swift, and, therefore, if it is contemplated that a great deal more time has to be occupied by the cases arising out of recent legislation, it is obviously necessary for a proper and efficient staff of Judges to be provided to deal with that work. But we are not satisfied that this is the right approach to the problem. It seems to us that the Government are unduly concerned with the tradition of the Courts and the Divisions into which almost casually they have fallen. The Divorce Court, as the successor to the old ecclesiastical jurisdiction, has become a separate department of the High Court of justice, and the learned Attorney-General says that now, just as we have passed new legislation, is not an appropriate moment to consider that matter. I should have thought there could be no more appropriate moment than this when, as a result of new legislation, we contemplate the appointment of two new Judges, for considering how those appointments may best serve the people of this country.
The real question is, How best can we serve the mass of poor persons who will want to utilise the services of Judges in their matrimonial difficulties? Can they best be served by appointing two new Judges to sit in London in the Divorce Division, or will they be better served by appointing two new judges generally, with power to deal with divorce on circuit, and any other matters which arise 1441 on circuit; that is to say, to strengthen the general body of Judges rather than to strengthen this specialised department of the High Court? No special qualification of which I am aware is necessary for a Judge in order to try a divorce case. Thousands of them are tried on circuit by Judges of the King's Bench Division, and I have heard no complaints that such Judges are incapable, because of the highly technical points that are raised, of dealing with them. There is no reason why we should perpetuate and accentuate this separation by the appointment of Judges specifically to the Probate and Divorce Division.
It would, in our view, be far better, and would accomplish more easily the results which I hope everybody in the House desires, namely, that people should have their cases disposed of speedily and without undue expense, if the additional Judges were made Judges who were of general service to the community and not limited to this very narrow type of jurisdiction. When we have so recently passed Measures which are likely to increase this particular type of litigation seems to me the precise moment when we should take into consideration the question of whether we are really doing the best for the community by perpetuating this distinction between the Divisions of the High Court. The argument that because something is required immediately we must keep to the old method and not make any change is the most dangerous argument conceivable for any legislative assembly. We shall always be committing ourselves to going on with the past because the present is "not the appropriate moment" to change directions, and I should rather take the view that these new circumstances have offered us an opportunity to consider the whole question and see whether we cannot devise a better method from the point of view of expense or anything else.
It is going to make no difference whether we appoint these Judges as additional Judges of the King's Bench or Judges of the Probate and Divorce Division. It is going to give us far more flexibility if they are Judges of the King's Bench Division. When a large number of Judges are away on circuit delays occur not only in the Divorce Court but in the other parts of the High 1442 Court as well. As the learned Attorney-General has said, nobody knows now what will really be the outcome of any litigation arising from this new legislation. This Bill provides the means whereby these two additional Judges may be cut down to one in the event of there not being enough for them to do, and that seems to be a strong argument why we should not devote this extra £10,000 a year and this extra man power on the judicial bench solely to this very narrow line. It may be that it will be convenient for two of the King's Bench Judges to be appropriated to this work for a certain period of time—I am not concerned with that—but it may also, as the learned Attorney-General has told us, turn out that it would not be convenient to appropriate both of them. Nobody wants a learned Judge of the Divorce Court to kick his heels about or appear to be waiting to increase the amount of matrimonial trouble in order that he may get sufficient to do. I am sure that even the hon. Member for Oxford University (Mr. Alan Herbert) would not desire that. Therefore, having this opportunity provided, and being all agreed, as I understand we are, that it is desirable to provide sufficient judicial strength to deal efficiently and swiftly with the work which comes before the courts, I cannot at the moment see any argument in favour of doing it in this way, except the argument that we have always done it like this, and that it seems to me—and I see that the hon. Member for Cambridge University (Sir J. Withers) apparently agrees—is the worst argument.
§ Sir John Withers
I did not express any agreement with the hon. and learned Member. What was in my mind was that at this particular time if you do what is being suggested you will have to reorganise the whole of Somerset House, the whole of the Divorce, Admiralty and Probate Registry, and that that will take a long time.
§ Sir S. Cripps
I am sure that the hon. Member is exaggerating the difficulty. Let us assume that we appoint two extra King's Bench Judges. They could be borrowed, appropriated, or whatever you like to call it, for the Probate and Divorce Court. When they were wanted there they could come across and help, but they would be equally available to help with the King's Bench work, and we should 1443 not be perpetuating and magnifying a Division which a good many people think ought in the course of time to disappear; we should not be prejudicing ourselves by re-enforcing the Probate and Divorce Division. It would not upset the Probate Registry or anything else. We should be gradually moving towards the time which a good many, though not all, lawyers would desire to see, when these artificial distinctions, which are artificial, between the King's Bench and the Probate and Divorce Divisions so far as the Bench is concerned, are swept away and we pool our resources and thereby, on both sides, became more efficient and swifter in our administration of justice. Unless the Solicitor-General or the Attorney-General can give us some very much better reason than has been put forward so far for making these two Judges extra Judges of the Probate and Divorce Division, we on this side shall certainly support the Amendment of the hon. and learned Member for Montgomeryshire (Mr. C. Davies), because we believe that would develop our administration of justice on right and sound lines.
§ 4.24 p.m.
§ Mr. Clement Davies
I beg to move, to leave out from the word "That," to the end of the Question, and to add instead thereof;this House refuses to consent to the addition of two Judges to the Probate, Divorce, and Admiralty Division whose time will be almost wholly occupied with the trial of divorce petitions in London, while this House is of opinion that divorce petitions should be heard and determined by His Majesty's judges in the King's Bench Division sitting in London and at every assize town.I never thought the time would come when I should have to oppose a Bill which proposed to increase the judicial strength of our Bench. I have always been in favour of the creation of more Judges, so that justice might be administered quickly, because delay in the administration of justice is a denial of justice, and there is nothing more calculated to sap the confidence of the public in our judiciary than heartbreaking delays. They not only affect the people in their everyday work, but the cost goes on increasing day by day. There are delays now not only in the King's Bench Division but, as the learned Attorney- 1444 General has pointed out, in the Probate, Divorce and Admiralty Division. That is not due to anything lacking on the part of the Judges, but obviously due to the lack of a sufficient number of Judges. In opposing this Bill I do not in any way criticise the Judges, but only criticise the method by which the Government propose to deal with some of the difficulties which everybody admits exist in the administration of justice. The judiciary itself is as good now as it ever has been. There is one other criticism I have heard from time to time which, I think, is absolutely unjustified, and that is that possibly the candidates for the Judicial Bench are not as good as the candidates in the past. I have left the Temple now, but I still know the Temple very well, and I see no ground whatsoever for such a criticism. There are as good men practising to-day at the Bar as there are sitting on the Bench.
It is extraordinary how the authorities responsible for the administration of justice in this country have proceeded. There are two things for which the Government make themselves entirely responsible, one the defence of the individual, and the other the administration of justice. The administration of justice has been, and is now, a monoply of the State. With regard to the defence of the individual, the authorities will spend any money, will even borrow as much as £1,500,000,000 in order to carry out the duty of Defence, but they are not prepared to spend a penny more than is being spent at the present moment—I will deal in a moment with the amount spent—upon the proper administration of justice. The administration of justice in this country costs the State, as such, nothing—not a penny piece. Hon. Members will observe that when the Vote for the administration of justice comes before this House it is a Vote for a nominal £100. The amount received day by day from fees in one form or another is sufficient to pay for all the judges. all the buildings, all the clerks, all the necessary matters in connection with the administration of justice, and yet the State is responsible for the administration of justice and, so far as I can see, some of the authorities are against its better administration, although the public certainly are not. If there is a demand for better Defence the administration will 1445 give ear to it and will not consider the expense. Why is it that when the public keep on asking for a better administration of justice some of the authorities deny it to them?
This matter has been raised time and time again. There have been any number of commissions and any number of recommendations, but very few of them carried out. As the learned Attorney-General said, there was a unanimous recommendation about the Probate, Divorce and Admiralty Division as recently as 1933, but nothing was done. I want to correct what the learned Attorney-General said about the Peel Commission, on which I had the honour of sitting. He suggested that the majority on the Peel Commission came to the conclusion that in what had been recommended by the Hanworth Commission the Hanworth Commission had gone too far. They did nothing of the kind. On the Peel Commission we were all agreed that the position of the Probate, Divorce and Admiralty Division was anomalous. The only difference between the majority and myself was that I thought it came within the terms of reference, and therefore we could deal with it, whereas the majority came to the conclusion that inasmuch as we were concerned with the business of the King's Bench Division, this matter could not really be dealt with.
Now let me tell the House why I oppose the Bill. My objection is twofold. First, it is an objection that a Judge should be called upon to try divorce proceedings only. My second objection is that defended cases under the present system will be triable only in London. The proposal contained in the Bill is that the judge should be a divorce Judge and try nothing but divorces, and that all undefended cases should still be tried in London. Let us see the matter from the point of view of a Judge. In 1857, for some reason or other, the Probate, Divorce and Admiralty Divisions then came together and were put into one division. The hon. and learned Gentleman the Member for East Bristol (Sir S. Cripps) very rightly said that no special knowledge is required to deal with divorce, but special knowledge is undoubtedly required to deal with Admiralty cases, and difficult questions sometimes arise with regard to probate. What has been recommended by prior commissions is that Admiralty work should be done by 1446 a specialist in Admiralty. There could easily be attached to him work which is now done by what we call the commercial court in the King's Bench Division, because the two matters are very similar. The King's Bench Division Court is concerned with ships and shipping, charter parties and bills of lading, whereas the Admiralty Court deals only with collisions, navigation and matters of that kind. The probate Judge is chosen because he has to deal with interpretation of wills, and such Judges must be the most suitable people to deal with whether a will has been properly made. That leaves divorce. No technical knowledge is required for such work. Without wearying the House, perhaps I may remind hon. Members of who have been the past Presidents of the Probate, Divorce and Admiralty Division in my time, dealing with divorce.
When I first went to the Bar the President was Mr. Goren Barnes, afterwards Lord Goren, an Admiralty Judge who I do not suppose before he sat on the bench had ever listened to a divorce case. He was followed by Mr. Justice Bigham, afterwards Lord Mersey; again I am certain that he had never been inside a divorce court and never heard a divorce case; yet he was promoted to be President of that Division. The next man was a Member of this House. He was promoted after being Solicitor-General and having had a purely common-law practice, and was Sir Samuel Evans, one of the greatest Judges that ever sat in that Division. He was followed in term by another common-law Judge, Mr. Justice Pickford as he was when he was appointed, and afterwards Lord Sterndale, who, as I know for a fact because I had the honour of acting as his secretary, had never heard a divorce case before he became President. After he was appointed Master of the Rolls he was followed by Sir Henry Duke, afterwards Lord Merrivale. I agree that Sir Henry, when he was at the Bar, had had a certain amount of experience at divorce work, but that was only when he had been called in in great cases because of his influence with the jury, and not because he had any special technical knowledge. He was followed by an ex-Solicitor-General who admitted before the Peel Commission that he had had no experience of divorce before he was appointed.
1447 There is no necessity, therefore, to appoint a specialist to deal with divorce. I come then to the other side; there was only one Judge who had had a practice in the Divorce Court who was ever appointed to that post. He was a barrister who had practised in the Divorce Court, and he was appointed Judge. That example has never been followed. The position to-day is that the President is a common-law man, Sir Frank Boyd Merriman, and the other two are purely Admiralty Judges, Mr. Justice Langton and Mr. Justice Bucknill. I am certain that neither of them had ever heard a divorce case before being appointed. I know for a fact that Mr. Justice Langton had not, because he gave evidence before the Peel Commission.
In 1920, the then Lord Chancellor, Lord Birkenhead—I wish he were still alive and were still Lord Chancellor, and that he had remained on the Woolsack a little longer, because we should have had greater reforms for which we have been waiting—for the first time interfered in this matter and came to the conclusion that it was wrong that all divorce cases should be sent to London to be tried. He knew about the expense, and especially the wrong and iniquity of it. Immediately after the War when there were so many divorce applications all of which had to be brought to London and tried, he came to the conclusion that some of them should be sent on circuit. I know that he wanted to send them all on circuit, but he succeeded in getting only two classes of cases sent on circuit. These are tried on circuit to-day, and are the undefended divorce cases and the poor persons defended divorces. I do not know whether the House is aware what poor persons cases are. They are cases where the man proves that his total income is less than £4 a week. It used to be £2, but the authorities extended it.
If the man proves his income, the case can be tried on circuit, but not at every Assizes—only at 26 out of the 61 Assizes. Why confine the matter to 26 Assizes? Why put a man who has only £4 a week to the trouble of going to one of the 26 towns and not to his nearest Assizes? I will come back to this matter. The point I am on at the moment concerns the position of the Judge. These cases are tried on circuit by King's Bench Judges. When they are through their other cases, they 1448 try the undefended and the poor persons defended divorces. In 1934—these are the last figures I have, but they were the figures given to the Peel Commission—the total number of cases other than matrimonial causes which were tried on circuit came to about 1,600, but the King's Bench Judges tried on circut 1,760 matrimonial cases. What is the use of telling me that you need a specialist to try these cases? Judges are appointed having had no experience of the Divorce Court, and yet when they are on their very first circuit they find they have to try all those cases.
My next point with regard to the Judges is, who is to accept these appointments? A Judge will know that for 15 years, before he can earn his living, he has to sit there and try divorce, and nothing but divorce, day in and day out, from 10.30 in the morning until 4 in the afternoon, hearing nothing but the same kind of evidence. The only-change is in the names of the parties and witnesses, and the Judge need not utter a sound except "Decree" or "So be it." For 15 years that will go on without change. The Court deals with probate as well as with Admiralty and divorce, but the time occupied by probate is less than two-fifths of the Judge's time, and the time occupied by Admiralty cases in 1934 was less than three-fifths of the Judge's time; so the two together occupy less than one judge's time. They try to relieve the monotony by giving Admiralty to Judge A when it arises, the next time to Judge B, and the next time to Judge C. Presumably the other two Judges will be put on to try divorce. There are already two Admiralty specialists there. Admiralty is a difficult and international matter. The Court of Admiralty has an international standing respected by every country in the world. Now you are going to put there to try these cases a man who has never had any experience of it. That being so, what can they do to relieve the monotony? They will just be trying those, and nothing else.
May I remind the House of the evidence given before us by one of the Judges sitting there now? He has not been there very long, I should think a matter of five or six years. This is the evidence with regard to monotony given by Mr. Justice Langton in answer to a question which I put. I asked him what 1449 was likely to happen if you left the Divorce Court alone to-day. He said:I do not think that any one with anything approaching a first-class intelligence would he content to spend his whole judicial life in the unrelieved study of divorce. I should doubt—your Lordships will forgive me, and I hope you will not accuse me of being frivolous when I say—the complete sanity after five years of divorce of any man who spent his entire time in that way.Yet what you propose to do now is to add two judges to that list.
I realise that the thing is marvellously well organised. I understand that an undefended divorce now takes five minutes, or less than 10 minutes. This is what takes place; There is no speech by counsel. He merely gets up—I assume it is a wife's petition—and he says: "Your Lordships, this is a wife's petition. Mrs.—whatever here name is—will you go into the box?" He then asks her about 12 or 15 questions, and asks her to identify a photograph. She then walks out of the box, and ready to walk into the box is the agent who served the papers on the husband. He goes in and identifies the photograph, and says he found the husband living with another woman. "That is my case, my lord," says counsel; "I ask for a decree." The judge nods his head and says "So be it," and it is finished. There is a queue all nicely arranged by the usher so that no time is wasted. Leaving the judge's side for a moment, let me come now to the public point of view. I understand that the cost of an undefended divorce suit to-day is anything between £75 and £120 or £130. That money has to be found unless you happen to be a poor person. A defended divorce will, of course, cost goodness knows what; it will depend upon the witnesses, the solicitors 'and the counsel. An undefended case may be tried either in London or in one of the 26 towns, but a defended case can be tried only in London.
The husband is put in this extraordinary position. Let me assume that it is the wife who is bringing the petition against the husband, though it may be the other way. The wife brings her petition, an order is made against the husband for alimony, an order is made against him for the provision of the costs of his wife's solicitors, his wife's witnesses and his wife's counsel. He has to pay all the expenses of bringing these 1450 people to London and keeping them in London, including the whole of their hotel expenses, and they have to wait for one, two, three and four days. For a certain period the undefended cases are taken, and then, perhaps, the defended cases are put in, two, three and four cases in a day, lest perchance—because this is the idea of some of the authorities as to the way in which justice should be administered—lest perchance during the day a Judge may find himself unoccupied. The heavens are going to fall if the Judge is off the bench for five minutes unoccupied, but witnesses can remain outside in the corrider for hours, and even days, and their expenses have to be met. The husband, after providing for all these expenses for his wife, has then to find the money for his own expenses.
Take the case of a man who is just out- side the poor persons rule, say a clerk in receipt of £250 a year. One instance was given in evidence before us, and I referred to it in my own report. Take the case of a clerk in Newcastle in receipt of £250 a year. His wife conscientiously believes that she is entitled to a divorce, and he is conscientiously determined to fight it, saying that she is not entitled to a divorce, that he is not guilty of these charges which she has made against him. He has to find all that money for her and her witnesses and for bringing them to London. Where is he to find the money to defend himself? What happens? He borrows it until he can borrow no more, and his friends then come to him and say, "Give it up, it is not worth it." If there are no children, the chances are that he will, but if there are children he says, "I am still determined to fight and keep my home together." He is a ruined man before the case comes on for hearing, and he does not know how long he and his witnesses and his wife will be kept waiting in London. That is the system which it is proposed to perpetuate. It is a denial of justice. What is more, it is putting a premium on collusion, because at last, perhaps, the man will throw it up and say he cannot afford it, and might as well let the case go undefended, so that it can be tried at Newcastle and there will be an end of it.
That is the system against which I am fighting. I am not fighting against an increase in the number of judges, but only for better administration of justice. I think it is iniquitous that at a time like 1451 this there should be, or should appear to be, reason for the cry that there is one law for the rich and one for the poor. There is one law for the rich and the very poor, because the very poor can have their cases tried on circuit; but those who are just above the poverty line of £4 a week cannot. There is a simple and easy remedy, the remedy suggested by the commission that inquired into this matter. It is to put the probate cases in the Chancery Division; to put the Admiralty and commercial cases together and let the Admiralty Court carry on its own work under its own specialists; and to let all the judges try these cases where they arise. Justice should be as near to the door of the applicant as it can possibly be administered. It is for that reason that I put my Amendment on the Paper.
§ 4.52 p.m.
Mr. Owen Evans
I beg to second the Amendment.
In view of the objections to this Bill which have been stated very concisely and clearly by the hon. and learned Member for East Bristol (Sir S. Cripps), and of the objections which my hon. and learned Friend the Member for Montgomeryshire (Mr. C. Davies) has stated with his usual eloquence and with his very great knowledge, I need detain the House for only a very few minutes. It seems to me that the great objection to the Bill is, as was said by the hon. and learned Member for East Bristol, that the Government have not seized this opportunity of dealing with a matter upon which there is considerable agreement as to what should be done. Attention has been called to the recommendations which have been made by Commissions and Committees, by the Han-worth Committee particularly, for the fusion of this Division of the High Court with the King's Bench Division, but it seems to me that the Government in this case, as in so many others, have taken the easiest course—they have just tinkered with the subject. There is a consensus of opinion outside the legal profession that something radical should be done, but they are afraid of doing it because of some very strong opposition inside the profession. One of the gravest objections to the Royal Commission which considered this matter seems to me to be that it included no one except my hon. and learned 1452 Friend the Member for Montgomeryshire—who by that time had left the Bar and gone into, shall I say, a higher or perhaps more remunerative sphere—who was outside the legal profession—
Except the chairman. The Commission itself, with the exception of my hon. and learned Friend, was composed entirely of legal practitioners. Apart from the indefinite postponement of what is admitted by a considerable body of opinion to be required, my principal objection to the Bill is that, from the very nature of the Bill, these appointments will be made from among practitioners at the Bar whose practice is now confined entirely to divorce cases, and it appears to me that there cannot be any possibility of making use of these new judges for work in the High Court where there are arrears from time to time. As I understand the Bill, it will increase permanently the number of puisne judges in the Divorce Court by one. There will be at least three. At the present moment the effect will be to increase the number to four, but, should there he a vacancy hereafter, it is not to be filled if the number is not less than three. Even these three will be occupied in trying divorce cases day after day and year after year, as my hon. and learned Friend has said, for 15 years, and they will be of no use in the administration of justice outside the very narrow field of the Divorce Court. I myself, years ago, was a very modest practitioner, and it seemed to me then that the history of the appointments to the King's Bench Division and the High Court indicated that only on very few occasions was it thought fit to appoint practitioners who were solely engaged in the Divorce Court. Here, however, the Government are proposing to appoint two judges who will be exclusively employed for years to come on that particular work.
This House passed a Measure last Session which extended the grounds for divorce, and it is proper and necessary that facilities for dealing with cases that may arise under that Act shall be afforded in the future. The Attorney-General said that the main ground for appointing these two additional Judges is the arrears that already exist in that Division, but he did not estimate, and we do not know, how many cases there will be under the new Act, or whether they will continue 1453 to arise; we hope that they will not be numerous. But we are making certain that there will be one extra Judge, who will receive £5,000 a year, for dealing with this particular branch of work in the future. I submit to the House that that is a wrong way of attempting to deal with this matter.
It has been said that these facilities for divorce should be brought within easy reach, not only of persons who are deemed under the present rules to be poor persons, but of persons of moderate means who live 200 or 250 miles away from London. At one time I had to go occasionally to the Divorce Court to appear for a petitioner, and I remember one particular case which perhaps the House will forgive me for mentioning. It happened to come from Wales, it was an undefended case, and the President happened to be a Welshman. The whole list had to be gone through during the day, and at 4 o'clock when the President was about to rise, it happened that my case was coming next. I ventured very diffidently to suggest to the President that in the circumstances, having regard to the fact that several persons had had to come up to London at great cost and that the petitioner had not much means, he might take that case. He asked me where the case came from, and I replied, "From the Principality." He said, "What Principality?", and I replied, "The only Principality." He consented to take it, and the lady, who was of very prepossessing appearance, got her decree nisi in a matter of four or five minutes. Since then the procedure has been changed, and undefended cases are now being taken at a large number of assizes. But there are also the defended cases, and, as my hon. and learned Friend has pointed out, there are cases of that kind, in which the people concerned are of moderate means, which are sometimes far more important than undefended cases. Surely, the least that could be done to give effect to the Act which this House passed last Session would be for the Government to give facilities whereby these people of moderate means can have justice brought to their doors.
The only other point I wish to mention is one that was made by my hon. and learned Friend in giving a quotation from the evidence of a Judge which indicated that continuous work in the Divorce Court seemed not to make those doing it fitted to assist in the administra- 1454 tion of the general law of the land. I remember hearing of an Admiralty Judge of great standing who, after having worked in that court for a few months, was asked how he liked it and what kind of life he had to lead there. He replied, "Well, at the present time half my life is the sea, and half a sewer." That was the opinion that the learned Judge had of his work—work at the Admiralty which he liked, and work at the Divorce Court which he detested.
§ 5.1 p.m.
§ Sir J. Withers
I should like to support this Bill very heartily at the present moment, especially as, in spite of the Financial Memorandum attached to the Bill, it entails no extra cost to the country, because it is well proved that lawsuits bring in more in the way of receipts than the cost of running the courts. Something must be done at once without waiting. There are very heavy arrears now before the courts, and a very large number of cases are waiting to he heard under the new grounds for divorce which will come into operation at the beginning of next year. Of course, there will be a great wave to start with, but after a little time it will level down. We cannot possibly tell at present what the number will be, but I am certain there must be a very considerable increase, owing to the increased grounds for which divorce can be granted. Most of these, I think, will be cases that will take a very long time, because, at the request of the authorities, the Matrimonial Causes Bill contains a very curious Clause putting a duty on the courts to inquire into each case. That means to say, that on a very simple undefended divorce case the courts will have to look into the whole thing, and such a case, instead of taking, as it now would, about five minutes, will take half an hour or an hour, or it may be more. Therefore, new Judges must be appointed.
I appreciate what the hon. and learned Member for Montgomery (Mr. C. Davies) said, and I congratulate him most heartily on his speech. It was an excellent speech, a most telling speech, and certainly it had a great effect on my mind, at any rate, as to the general question of the administration of the law. But that is a matter which will have to be gone into at very considerable length. It will take some time to work out and some time to 1455 adjust. It concerns not simply the Judges themselves but all the various staffs, registrars and officials in chambers. They will all have to be readjusted.
§ Mr. C. Davies
Is the hon. Member aware that this was gone into by the Hanworth Commission, and that they recommended that the present President should carry on as now without any alteration or rearrangement?
§ Sir J. Withers
I quite appreciate that. If that was the only thing at issue, I do not think there would be very much in it, because there are Judges who will be appointed from the King's Bench Division, and, therefore, if we are going to treat the Judges themselves as separate entities from their administration, I think there is a good deal to be said. But I do not think that that is an innovation which ought to be undertaken on this Measure. Why not deal with it as a separate Measure? I am very much impressed by what the hon. and learned Member for Montgomery has said, and I should be prepared to consider seriously his suggestions on that subject. We do want Judges who have some actual knowledge of divorce law. The trial of a divorce case, especially an undefended case, is extremely simple; in fact, it is so simple that there is a great deal of collusion. In a great many cases witnesses are lined up. The whole thing has been arranged beforehand. But Judges with knowledge of divorce work are wanted for special work in chambers—questions, for instance, of maintenance and alimony. We had a discussion a few days ago on whether it was possible to fix reasonable maintenance. Now these Judges have in every case to apply their minds to that.
§ 5.8 p.m.
§ Mr. Ernest Evans
My hon. Friend who has just sat down, like the learned Attorney-General, said that this Bill was required for two main reasons. One is that there will be extra work under the Matrimonial Causes Act. It is often said that litigation is a speculative venture. That is quite true; that is why so many lawyers spend so much time trying to settle cases out of court. But if the results of litigation are uncertain, so are the results of legislation. In regard to the amount of work which will accrue, that, as the learned Attorney-General 1456 said, is a matter on which he can give no forecast, and nobody else can. Therefore it seems to me that that is a matter in regard to which the Government might have waited. But in this particular matter they have shown a capacity for prompt action of which we should like to see examples on other matters.
Let me come to the nature of the cases under the Matrimonial Causes Act. On this matter I should like to endorse what was said by the hon. and learned Gentleman the Member for Bristol, East (Sir S. Cripps). There is no doubt that a good deal of the work will be difficult. That Act has not satisfied all the would-be reformers, but the Act does represent a very great experiment in social and judicial reform, and it is only fair that the experiment should be conducted with the greatest care, caution and expedition, so that the merits of the reform may be properly tried and its supposed perils duly appraised. But if the work is difficult, that is all the more reason for the policy incorporated in the Amendment. There is no good in pretending otherwise. The two new Judges will be men appointed for their experience in divorce work. That work, as a rule, requires no very special qualifications, but the qualifications which are required before a man establishes a position at the Bar and is appointed a Judge, are capacity for understanding the law and being able to act with judicial discretion. If the work is difficult, it seems to me all the more reason why men should he appointed with wide experience of a general character.
I regret that this Bill has been introduced now, because it seems to me that it is closing the doors for many years to come to the consideration of practical alternatives. There are alternatives There is the one incorporated in the Amendment, which has been discussed so well by my hon. Friend. There is no doubt that the establishment of three divisions has a great deal of support. I am sorry that the Government have not considered this more carefully before introducing this Bill. They have had time to do so. But, supposing that the Government say, "We want people experienced in divorce work, and divorce work alone," then here is another suggestion. Instead of appointing two judges, who will take rank as puisne judges in the 1457 Probate, Divorce and Admiralty Division, you should appoint two, or, if you like, three men, not exactly holding that rank or with that salary, but having experience of divorce work and knowledge of divorce practice. They would probably be willing to accept office at a rate lower than the £5,000 which is given to puisne judges in the Bill; they would fulfil the requirements of the Government of having all the expert knowledge of divorce work, and they could sit in London and be sent to the provinces as occasion arises. That would secure the release of some of the judges of the King's Bench Division who are now called up to try cases at assizes. But there is also something to be said from another point of view for making the hearing of divorce cases more easy in the provinces. There is the question of expense and convenience. There is also a good deal to be said for hearing these cases in the locality in which they have arisen.
There is a third proposal, which I have heard adumbrated now and again, that undefended divorce cases should be sent to the county court. It is very rarely that they raise any question of legal or technical difficulty, and there is no doubt that county court judges in increased numbers would be thoroughly competent to deal with these cases. Several suggestions have been made for dealing with this matter, as has been the case in respect of the reform of the system of the High Court in general, and I regret that this Bill has been introduced now, because it defers the practical consideration of these alternatives for an indefinite period. We have had information to-day of the immense loss of time occupied by courts in this country hearing matrimonial cases. We know how necessary is the extension asked for by this Bill. This sort of thing shows us the revolutionary changes that have taken place in recent generations in the social customs of the people and in the reaction of the public conscience to those changes. I have no doubt that there will be a demand for further changes in the future, but these matters give cause for very deep reflection as to what may happen in the future. Personally, I hope that with greater knowledge, wider education and better social conditions, the urgency for these extensive provisions may gradually diminish.
§ 5.18 p.m.
§ Mr. Lyons
Whatever happens to this Bill to-night, I hope that we shall be informed, before it leaves us, that it is certainly not to be the last word in respect of the reform which has been suggested so often. I believe that I shall be expressing the appreciation of every hon. Member present when I say how grateful we all are to the hon. and learned Gentleman the Member for Montgomeryshire (Mr. C. Davies) for the informative and interesting speech which he has delivered. There is one point I would like to develop arising out of what he said, and it is a point which was touched upon by the hon. and learned Gentleman the Member for East Bristol (Sir S. Cripps). If this Bill goes through, the benefit of the judicial strength will be confined to London only. The judicial strength of the country, in my view, should be sufficient for the speedy needs of all the people who have to go to the courts. There is general agreement on the importance of maintaining judicial strength and ready, swift justice for all. The hon. and learned Member who spoke in support of the Bill just now said that my hon. and learned Friend had made a mistake when he said that undefended divorce cases only lasted five minutes, because they will soon last an hour and over on account of the extra burden placed upon the Judges by the new Act. If that be any argument at all, I hope that the House will bear in mind that that means that the need for increased assistance at assizes, becomes greater than ever. The extra Judges under this Bill will be put in the Divorce Court in London in order to cope with any extra work which may come there. There will be no power to utilize this additional strength on circuit.
We are reasonably told that additional work may be expected under the new law which comes into operation next year. Many of us opposed the passing of that law, but we are all agreed that it must be worked properly, speedily and efficiently. What is going to happen, if this Bill goes through, to the vast amount of work which will be added to that of His Majesty's Judges on circuit at assizes? I heard only last week of one of His Majesty's Judges being so occupied with other business that he had to postpone to the next assizes the whole of the divorce work on his list. If the two additional Judges are to be exclusively in the Divorce Division in London they will at 1459 no time be available, so far as I understand it, to do additional work which must fall to the assize towns in England in consequence of the new law. It is obvious that if a lot of additional divorce work arises because of the new Act, it will not only be in the Metropolitan area where the work will increase, but in many assize towns in England. There will be a great increase of cases. It is not a complete way of dealing with the problem only to increase the judicial strength in London in such a manner that it is not available to take on the work of the circuits in assize towns. All of us will support a Measure which is to give better and more speedy justice, but we fear that there will not be the benefit that ought to be to the persons interested in assize towns. It is felt that it is a Measure which may delay a great and necessary reform, and I hope that, before the Bill receives a Second Reading, we shall have an assurance from the Government upon some of the points which we have tried to indicate in this Debate.
§ 5.22 p.m.
§ Mr. Silverman
Listening to the Debate, as I have done, the point which I most desire to make has been considerably reinforced in my mind. The hon. and learned Member for Montgomeryshire (Mr. C. Davies) made out what I considered to be a completely unanswerable case, and it was so unanswerable in principle, that it is somewhat surprising that he should limit it as he did. The case for the Government Measure is that something has to be done immediately to meet a pressing emergency, and that wider measures, which, I imagine, everyone agrees to be necessary, should be deferred. I understood that the contention of the hon. and learned Member who moved the Amendment was that no harm would be done by rejecting the Government's Measure because in fact it would not meet the emergency which it was designed to meet. I would ask the hon. and learned Member whether his own proposal would really meet the need? His proposal is that new judges, if they be appointed, should not be appointed to administer divorce work in London only, but that they should be available for divorce work in the country on circuit. How far does that take us? I am entirely with that in principle. I do not know how long ago it is since the hon. and learned Member 1460 practised on circuit, or what the conditions were at that time.
§ Mr. Silverman
Then, I think that the conditions are not greatly changed, and the hon. and learned Member will know I am right when I say that all the important Assize centres to-day, including those where divorce business is taken, are so crammed and choked with business that it is impossible for justice to be effectively carried out even in respect of the work that now has to be done at Assizes,
§ Mr. C. Davies
I was aware of that fact—the same conditions applied when I was sitting on the commission—and my answer is, create more judges.
§ Mr. Silverman
I would accept that answer as being sufficient within the ambit of the point of view of my hon. and learned Friend, but I suggest that even that will not meet the case. I think we agree that at the moment, to appoint two more judges and send them on circuit would not meet, or anything like meet, the emergency which this Measure is designed to meet. The only way in which the Assize work is now completely disposed of in the time allotted is by one-half of the litigants at most Assizes not having their cases tried at all, but coming together and, in despair, settling their disputes. I do not complain of that in the least, but if disputes are capable of settlement and ought to be settled, as many of them ought to be, they ought to be settled long before they reach the stage of being set down for trial at Assizes and incurring all the expenses which have then been incurred. By the time that is done expense has been incurred by both sides without any corresponding ad vantage whatever. In order to dispose of the present work there ought to be some readjustment and certainly a number of additional judges. If you are not going to do that, or if you leave the position as it is, it will mean, as the hon. and learned Member and nearly every hon. Member who has taken part in the Debate agree, that justice will be denied.
I have endeavoured to establish the point that to appoint two more Judges and send them round to assizes to do divorce work would not meet the need. But there is something else which the Bill does not do, and which the Mover of the Amendment would like to see done. It does not deal with the question of costs 1461 and expenses in the least. I think that it is agreed by everybody that the judicial system of this country does nothing whatever to meet the needs of the vast range of possible litigants between the very poor and those to whom money is no object at all. If we were to have all divorce business of this kind triable at assizes, I agree that that would go some way towards meeting the difficulty, but it would not go very far. It would be a step, but a very short step, and so the last stage would be no better than the first, because the cost of trial, at any rate, of a defended petition, and probably of an undefended petition, at assizes, is almost as much beyond the means of middle-class people as trial in London is beyond their means. You would not be getting very much nearer to the satisfactory administration of justice by saying that, "Whereas a trial in London would cost three times as much as you could afford, trial at assizes is better for you, because it would only cost twice as much' as you could afford." That does not take you very far at all; it does not improve the position very much. I cannot for the life of me see why the Government should hesitate to tackle the question, broadly and boldly, except that there is no question with which they have to deal that they are ever prepared to tackle broadly and boldly. But it could be done without any great change of policy and without any great expense.
The hon. and learned Member for the University of Wales (Mr. E. Evans) referred to the county court and suggested—I do not know why he did it so tentatively or so apologetically—the possible trial of undefended divorce cases at that court. Why undefended? I was in this House, as, I think, were many of those who have taken part in this Debate, when the House was considering the proposal to increase the salaries of county court judges. Every speaker in that Debate paid a very high tribute to the county court bench, to the ability of the county court judges and their special qualifications for dealing with the lives and conditions of poor people, because they understand them. Therefore, what subject of litigation could be better within the ambit of a capable county court judge than the average divorce case, whether defended or undefended? Matrimonial disputes do not always result in divorce. This House last Session, in dealing with 1462 matrimonial disputes which are not quite so fatal to the consortium, decided that it was advisable to have courts of matrimonial relations, and they gave the decision on some very technical and difficult matters to lay benches. We were right to do that. Why, then, should we hesitate about making justice quickly and cheaply available in the locality where the dispute arises by allowing the county court to have jurisdiction in divorce cases?
I do not like the indiscriminate transfer of High Court work to county court benches, because everybody has the right to have his case heard and determined in the High Court, within limits, and the limits are that there are certain classes of cases which are eminently well fitted to be tried in the locality by a judge of experience. Such a proposal would have an additional advantage. I understand that the Government's main argument for dealing with this matter in the way proposed is that it must be dealt with speedily, that there is an immediate problem to be dealt with at once and that the proposal to increase the numerical strength of the judicial bench and make arrangements necessary for trying divorce cases on circuit might occasion delay which could not be afforded. In that case, my proposal would meet the difficulty. It would not take a long time to pass a Measure to extend the jurisdiction of the county court so as to cover this question. A lot of new machinery would not be needed; in fact, there would be no need of new machinery. The problem would be doubly solved. The immediate urgency would be dealt with, and not merely that which affects the small section of people who can afford to go to court. We should be dealing with the whole question and not with a very small fringe of it.
§ Sir J. Withers
Does the hon. Member mean that the registrar of the county court could act as registrar in all interlocutory application in the same way as as a registrar of the Divorce Division?
§ Mr. Silverman
Why not? He deals with a great many questions now which are equally difficult and equally technical. Two Acts which were passed by this House, both administrable in the county court, were definitely allocated to the county court, and those Acts contain more technical questions, have been 1463 more difficult to decide and have produced more litigation than any other Act. One was the Workmen's Compensation Act and the other the Rent and Mortgage Interest Restrictions Act. Both were intended to be quick methods of dealing with immediate questions without technicalities and difficulties, and they were sent to the county court for that reason. Is there anything which is likely to be more difficult or more technical than the questions which have arisen under those two Acts? If I thought so, I should not be making this suggestion.
Let us take justice to the doors of the people where we can. It may be that that is not always possible, but here it is possible. If the Government would deal with the matter in that way the advantages of an act of social reform and justice passed by both Houses would be made readily available to poor people. so that there would cease to be discrimination between the rich and the poor in the way in which justice is obtained. Is it possible even now at this late stage to ask the Government whether they cannot reconsider this matter and deal with the whole problem in a way that is quicker than the way they have proposed, seeing that it is speed with which they are apparently most concerned?
§ 5.36 p.m.
§ Mr. Lovat-Fraser
I have listened with great interest to the discussion and was particularly interested in the historical resumé given by my hon. and learned Friend the Member for Montgomery (Mr. C. Davies). It was a masterly resume of the question. I can go further back than he did. I can remember well the late Lord St. Helier (Sir Francis Jeune), and I can go back to a more remote distance and recall Lord Hannon, who was probably the ablest of the men who occupied the chair in the Divorce Division. I cannot support a proposal which is going to condemn two men to divorce work only. That we should select two men who should have the misery of continuously trying divorce cases is a proposal that I cannot support.
May I mention a little experience of my own, which is my principal reason for speaking to-day? When I was a young man reading for the Bar a certain eminent solicitor, the father of one of the present Judges of the High Court, said to me, "I think, Fraser, there is a good 1464 opportunity for a man in the Divorce Court at the present time. Ii I were you I should go and read with So-and-so "—mentioning the name of an eminent junior in the Divorce Court—" and attend the court regularly and see how you like it. If you take up work in that court I think there is a chance of making something of your professional life." I took his advice and went regularly for a long time every day to the Divorce Court. I sat there and heard the long series of sorrowful stories, the long tales of treachery and infidelity, until at last I began to feel that I could not believe there was any faithfulness in human nature at all. One was soaking, soaking all the time in a continuous series of sordid tales, and I finally came to the conclusion that no remuneration would be a compensation for the soaking of one's life in the continual atmosphere of the Divorce Court. With that experience in mind I am not going to vote for devoting two Judges to a life which I found absolutely impossible.
§ 5.39 p.m.
§ Sir William Davison
I have listened to most of the Debate. This is in no sense a party matter. The Debate has revealed general agreement on nearly all points, and I would ask the Attorney-General to give very careful consideration to what has been said. I cannot accept the Bill in its present form. There has been testimony from all parts of the House to the Amendment, which has been so ably moved, and I think the Government would be well advised to consider carefully the terms of that Amendment. I would draw the attention of the Government to the unanimity on several points which has been arrived at from all sides (1) that there is considerable delay in the administration of justice; (2) that in the Divorce Division there are already very serious arrears and cases are being held up and carried forward because they are not able to be dealt with, and (3) that the legislation which was passed by this House last Session for extending the grounds for divorce will involve a considerable addition to the work of the Divorce Court, not only an addition in that there will be a new kind of case brought before the court, but delay will be involved in the trial of divorce cases because the Judges will have to come to decisions upon matters which hitherto they were not bound to investigate.
1465 These are points on which the House is in general agreement. That being so, why do the Government propose to appoint only two additional Judges and to confine their work to one division only and, as would be inevitable if the Bill passes in its present form, to confine them to London, although there is a vast amount of divorce work which has to be dealt with in the Provinces? The appointment of two Judges is quite inadequate. I agree with the terms of the Amendment that the two Judges should be members of the King's Bench and be able to go anywhere where their services are required. Even so, the addition of two Judges will be inadequate. I have never been able to understand the delay in appointing additional Judges, seeing that justice is delayed not only for months but sometimes for more than a year.
If the appointment of additional Judges necessitated vast expense to the community, I could understand the delay. If ii: could be said that we are engaged in national rearmament or that there are poor people whose pensions ought to be increased, and we cannot afford to appoint Judges, I could understand arguments for delay; but these appointments really cost nothing. Every Judge who is appointed more than earns, by the fees of his court, the amount of his salary. Why, then, is there this unwillingness on the part of the Government to appoint, say, four Judges, in order to clear off arrears and be prepared for the additional business that undoubtedly will come before the Courts next January? I beg the Attorney-General to reconsider the matter. It is it: the national interest to do so. We are justly famed for our administration of justice. Why, then, should justice be hindered by delays in its administration? We read of hundreds of cases that are held over month after month. Surely, when the appointment of new Judges really costs nothing to the country, because they earn their salaries through the fees charged in their courts the Government might appoint more Judges.
§ 5.45 p.m.
§ The Solicitor-General (Sir Terence O'Connor)
The speech of the hon. Member for South Kensington (Sir W. Davison) confirms my impression that 1466 there is some misapprehension about the scope of the Bill. For the purposes of greater accuracy I have acquired a copy of the Gracious Speech from the Throne, which will still be fresh in the minds of hon. Members. In that Speech it says:Proposals will be laid before you for providing such additional judicial strength for the Probate, Divorce and Admiralty Division as will enable the High Court to discharge the additional duties laid upon it by the Matrimonial Causes Act of last Session; for carrying out some of the recommendations of the Royal Commission on the Despatch of Business at Common Law.That is the Commission which has been referred to in the course of the Debate and appropriately drawn upon by the hon. and learned Member for Montgomeryshire (Mr. Clement Davies). That Commission canvassed, among other matters, the question of the fusion of the divisions and also the extension of the Circuit system, but I am afraid that I must ask hon. Members to await that Bill. That is the second Measure referred to in the Gracious Speech. What my hon. and learned Friend the Attorney-General has presented to the House this afternoon is a Measure very much narrower in scope and limited to the objects which he described. They cannot be better summarised than they were by my hon. and learned Friend, but lest they may have been overlooked let me repeat them. This is a Bill to deal with a present and pressing problem, the problem that the Divorce Court at the present time is unable to cope with the work before it. The undefended cases are 300 in excess of what existed this time last year, but there is only a very short list of Common jury cases at present. There were 10 special jury cases for trial set down, some of them last March, but perhaps the most serious feature is the number of defended non-jury cases, 596, awaiting trial. Hon. Members have only to visualise the aggregate of misery which that figure implies. It is a figure greatly in excess of anything that occurred a year ago. In addition to that, as my hon. and learned Friend pointed out, Admiralty work has been heavier, fortunately, than it has been at any time in recent years, and although there has been no net loss of judicial time in that division owing to illness, it is perfectly clear that the existing Judge power of that division is inadequate to cope with its existing work.
§ Mr. Silverman
May I ask whether the figures given by the Solicitor-General are the figures of cases which have already got so far as to be entered for trial or whether they include all cases which are almost ready for entry for trial but have not yet been entered?
§ The Solicitor-General
No. The figures I have given are of cases which are actually in the list, the parties are ready and they have been ready for a year or more without getting their cases tried. That is the problem which would have arisen if the hon. Member for Oxford University (Mr. A. Herbert) had never introduced his Bill—the strengthening of the Divorce Division. But there is a further problem raised by the hon. Member's Bill, and that is a factor which one can surmise but cannot calculate with accuracy. One thing is perfectly certain, and that is that the Matrimonial Causes Act will result in more work, and it is largely owing to the combination of these two circumstances that this Bill has been introduced. But it does not deal with the bigger problems raised by several hon. Members. The hon. Member for Nelson and Colne (Mr. Silverman) and one or two other hon. Members have spoken about the possibility of extending divorce work so that cases could be tried in the county courts. That would have been an appropriate Amendment to the Bill presented by the hon. Member for Oxford University but it has nothing to do with this Bill. This Bill is riot an attempt to cope with that situation, and if hon. Members had that at heart they should have put forward their Amendments when we were discussing the Matrimonial Causes Bill, and the way they should be tried—
§ The Solicitor-General
The hon. Member could have moved his Amendment on Report stage. I am pointing out that that method of dealing with divorce work is not germane to the present Bill, nor I suggest is the question raised by the Amendment of the hon. and learned Member for Montgomeryshire—the reorganisation of the King's Bench Division, because that is what it involves. No doubt it will be appropriate for the hon. and learned Member to raise that matter when we come to consider the Bill dealing with the Report of the Royal Commission on 1468 which he himself served. It will then be open to him to say, "It does not go far enough; it does not carry out my minority suggestions." But this is not the appropriate moment to deal with that matter, when we are discussing a Bill to deal with a pressing emergency, and an emergency which will increase next year.
§ Mr. C. Davies
I suggest that one way of dealing with the emergency is to give more power to the Judges already in existence outside the Probate, Divorce and Admiralty Division; if you like to add to them. The Government have only to apply to the House by Special Resolution to do that.
§ The Solicitor-General
The hon. and learned Member is perfectly right. There are more ways of killing a dog than by choking it with melted butter. But his proposal demands much wider considerations than a proposal dealing with the arrears of the Divorce Court and the impending increase in the work of that court. It brings in the whole issue, whether the work of the Divorce Division is no longer to be performed by that division alone but is to be merged in the general business of the King's Bench Division and the Chancery Division. My hon. and learned Friend did not face that position with the firmness of the hon. Member opposite. He at any rate said that the time has come to abandon all these divisions in the High Court, to do away with the divisions into King's Bench Division, Chancery Division, and Probate, Divorce and Admiralty Division, and allow judges to be available equally for any of the work that comes in.
I can understand that argument, but I would point out in answer that the proposal has never yet been put before any of the Commissions which have considered the work of the Judges. It was not suggested to the Peel Commission or to the Hanworth Commission. What was suggested to the Hanworth Commission, and commended itself to them, was the proposal that the Divorce Court should disappear and its work divided up among the King's Bench and Chancery Divisions. They made that proposal the subject of an interim report in which they recommended it. Let me say this on that matter. The proposal met with a very great deal of reasoned opposition. It was the subject over a prolonged period of discussion in 1469 the professional Press by people who knew the work of the Probate, Divorce and Admiralty Court, and it did not commend itself to the Lord Chancellor of the time. The Government did not proceed with it. It was then raised anew before the Royal Commission on which the hon. and learned Member for Montgomeryshire sat, and I venture to disagree with him in his suggestion that they did not turn the proposal down. I propose to read from the report of the Majority of that Royal Commission. In paragraph 180, on page 62, they say:We discuss elsewhere the difficulties of organisation involved in the King's Bench Division with its existing large staff of judges and diverse functions. It seems therefore that, whatever benefits the proposed fusion with the Probate, Divorce and Admiralty Division might bring, it clearly would not assist the despatch of business in the King's Bench Division, but rather increase the already formidable problems of its administration.If that is approving a proposal it is the faintest form of approval that I know. They go on to say:We cannot therefore recommend the proposed amalgamation. We must regard it as foreign to the immediate purpose of our inquiry. But the fact remains that a large proportion of the divorce work is discharged, not by the Division specially maintained in London for the purpose, but by common law judges on circuit, without the experience and assistance in the trial of divorce postulated as necessary by the very existence of this special Division.Having read these observations from the Majority Report it is clear, in my submission, although it was not a specific problem but rather a subsidiary problem before the Commission, that it is very far from correct to suggest that the majority of that Royal Commission were in favour of the recommendation that the Divorce Court should be abolished. Therefore, the position is that it was only recommended in the interim report of the Hanworth Committee, and was not adopted. But it must not be thought, and the Government do not ask the House to think, that in supporting this Measure to-day it will be closing the door to a possible fusion of the divisions in future. It would be wrong to suggest that the appointment of two more judges to the Probate, Divorce and Admiralty Division will prevent a fusion being carried out later on if it should become practicable. That issue will remain exactly the same as it is today and will be quite unprejudiced if the 1470 House sees fit to pass this Bill. With that explanation and that assurance, I hope hon. Members will feel that the Bill is not closing the door upon the larger issue which might be raised on another and more appropriate occasion.
The hon. and learned Member for East Bristol, Sir S. Cripps was inclined to suggest that we should strengthen the general body of Judges and then draw upon them to add to the strength of this particular division. That, of course, depends upon the postulate that there is a general body of Judges not divided up into divisions, a postulate which, as I have said, has not been examined by an authoritative body. If the hon. and learned Gentleman meant that we should strengthen the King's Bench Division and draw upon that to help in the Probate, Divorce and Admiralty Division, I suggest that it is not a very satisfactory way of dealing with this particular situation to make the efficiency of this division dependent upon borrowing Judges from one of the other divisions. I suggest that in a situation in which the administration of justice is faced with work which overwhelmingly exceeds its powers, the proper way is to strengthen the division that has to deal with these cases. If, later on, it should be the wish of Parliament that the method of dividing up the work should be changed, that is a matter for another Measure of much more ample scope than the present one.
Finally, again arising from the same approach to the problem, there is the question of bringing justice to the door, and of increasing the number of assize towns in which divorce cases may be tried. That again is not specifically a matter for this Bill; indeed, I do not believe it is a matter for any Bill, because I think that under the existing Judicature Act the Lord Chancellor has power to do most of the things that are necessary to increase the number of assize towns, and that there are very few things that cannot be done under the existing powers. If there should be some things for which fresh powers would be necessary, they would have to be sought in the wider Measure of which I have spoken.
It must be borne in mind that it is not for reasons of mere caprice that divorce cases are not tried in all assize towns. Part, and not by any means the least 1471 considerable part, of divorce court work, as was pointed out by the hon. Member for Cambridge University (Sir J. Withers), who spoke with very great experience, is the interlocutory work, the vital work of dealing with the custody of children and questions of maintenance, alimony and so on, all of which work is done in the registries. In order that divorce work shall be efficiently done on circuit, it is essential that there should be properly trained registrars where the cases are to be tried, and that they should be available to substitute clerks of assize when the cases come up for trial. The view that has hitherto prevailed—and I think it is a matter not for legislation but for rules—is that it is better to have a comparatively limited number of assize towns—at present 36 out of 56—in which divorce cases may be tried. Divorce jurisdiction is given to 36 out of 90 district registries of the Supreme Court, so that there may be properly trained registrars available to help the court to deal with those cases. If it should be possible and desirable to extend this activity to a larger number of towns, I do not think it would be necessary for the House to refuse the Second Reading of this Bill in order that it might be done, for it really has nothing whatever to do with the Bill.
I think I have dealt with all the reasons for which the Bill has been challenged. It has been agreed that the emergency exists, it has been agreed that it can be met only by more judges, and it has been agreed that under the present structure the strength of those judges will best be utilised in this division. Therefore, I suggest that the House should give this Bill an unopposed Second Reading.
§ 6.8 p.m.
§ Mr. Attlee
My hon. and learned Friend the Member for East Bristol (Sir S. Cripps) said that hon. Members on this side would support the Amendment moved by the hon. and learned Member for Montgomeryshire (Mr. Clement Davies) unless a really sound case for not
§ doing so was put forward by the Solicitor-General. I do not think the Solicitor-General has discharged that task. We look with very great suspicion upon a Bill of this kind dealing with the reform of our judicial system. It is terribly hard to get any reform in our legal system, and in this Bill the Government seem to be taking the simplest way out—just putting a couple more judges in the division, and hoping to carry on. There may be a bird in the bush, but it seems to be a long way off. It is precisely the existence of this pressure that gives to the public concerned the chance of trying to get some sort of move.
§ I do not think the Solicitor-General has really answered the point that the position would be met just as well if there were two—and more if necessary—additional King's Bench Division Judges. The mere fact of appointing two judges to the Probate, Divorce and Admiralty Division tends to keep things as they are and to keep specialised judges in existence. It is true that there is a great deal of work to be done, and that a great many cases will come forward as a result of the Act that was passed last Session; but it is a fact that there is a vast mass of poor people whose cases will not get attention. It may be that even the suggestion of the hon. and learned Member for Montgomeryshire does not meet that situation, but undoubtedly this Bill does not. That is a matter which concerns us. I am afraid that if the House quietly accepts this Bill, we shall hear nothing more of any Measure of reform. I hope that in a matter which is not a party matter but one which affects thousands of people throughout the country now and which will affect them in the future, the House will decline to accept this makeshift Bill, and will support the Amendment of the hon. and learned Member for Montgomeryshire.
§ Question put, "That the words proposed to be left out stand part of the Question."
§ The House divided: Ayes, 192; Noes, 103.1475
|Division No. 5.]||AYES.||[6.10 p.m.|
|Adams, S. V. T. (Leeds, W.)||Aske, Sir R. W.||Bernays, R. H.|
|Agnew, Lieut.-Comdr. P. G.||Assheton, R.||Bird, Sir R. B.|
|Albery, Sir Irving||Atholl, Duchess of||Bossom, A. C.|
|Allen, Col. J. Sandeman (B'knhead)||Balfour, G. (Hampstead)||Bowater, Col. Sir T. Vansittars|
|Amery, Rt. Hon. L. C. M. S.||Balfour, Capt. H. H. (Isle of Thanet)||Bower, Comdr. R. T.|
|Anstruther-Gray, W. J.||Barrie, Sir C. C.||Braithwaite, Major A. N.|
|Apsley, Lord||Beaumont, Hon. R. E. B. (Portsm'h)||Briscoe, Capt. R. G.|
|Brown, Rt. Hon. E. (Leith)||Haslam, Sir J. (Bolton)||Peake, O.|
|Brown, Brig.-Gen. H. C. (Newbury)||Heilgers, Captain F. F. A.||Petherick, M.|
|Burton, Col. H. W.||Heneage, Lieut.-Colonel A. P.||Pickthorn, K. W. M.|
|Butcher, H. W.||Hepburn, P. G. T. Buchan-||Pilkington, R.|
|Butler, R. A.||Herbert, Major J. A. (Monmouth)||Plugge, Capt. L. F.|
|Campbell, Sir E. T.||Hoare, Rt. Hon. Sir S.||Ponsonby, Col. C. E.|
|Cartland, J. R. H.||Holmes, J. S.||Procter, Major H. A.|
|Carver, Major W. H.||Hore-Belisha, Rt. Hon. L.||Radford. E. A.|
|Cayzer, Sir C. W. (City of Chester)||Horsbrugh, Florence||Raikes, H. V. A. M.|
|Chamberlain, Rt. Hn. N. (Edgb't'n)||Hudson, Capt. A. U. M. (Hack., N.)||Ramsay, Captain A. H. M.|
|Channon, H.||Hutchinson, G. C.||Ramsbotham, H.|
|Chapman, A. (Rutherglen)||Inskip, Rt. Hon. Sir T. W. H.||Ramsden, Sir E.|
|Chorlton, A. E. L.||Jarvis, Sir J. J.||Rathbone, J. R. (Bodmin)|
|Christie, J. A.||Joel, D. J. B.||Rayner, Major R. H.|
|Churchill, Rt. Hon. Winston S.||Keeling, E. H.||Reid, W. Allan (Derby)|
|Cobb, Captain E. C. (Preston)||Kerr, Colonel C. I. (Montrose)||Robinson, J. R. (Blackpool)|
|Colville, Lt.-Col. Rt. Hon. D. J.||Kerr, J. Graham (Scottish Univs.)||Ropner, Colonel L.|
|Conant, Captain R. J. E.||Keyes, Admiral of the Fleet Sir R.||Royds, Admiral P. M. R.|
|Cook, Sir T. R. A. M. (Norfolk, N.)||Knox, Major-General Sir A. W. F.||Russell, Sir Alexander|
|Cooke, J. D. (Hammersmith, S.)||Lambert, Rt. Hon. G.||Sandeman, Sir N. S.|
|Cooper, Rt. Hn. T. M. (E'nburgh, W.)||Law, Sir A. J. (High Peak)||Sanderson, Sir F. B.|
|Cox, H. B. T.||Leighton, Major B. E. P.||Shaw, Major P. S. (Wavertree)|
|Craven-Ellis, W.||Lewis, O.||Simon, Rt. Hon. Sir J. A.|
|Crooke, J. S.||Lloyd, G. W.||Smiles, Lieut.-Colonel Sir W. D.|
|Crookshank, Capt. H. F. C.||Locker-Lampson, Comdr. O. S.||Smith, Bracewell (Dulwich)|
|Cross, R. H.||Loftus, P. C.||Smith, Sir R. W. (Aberdeen)|
|Crossley, A. C.||Mabane, W. (Huddersfield)||Somervell. Sir D. B. (Crewe)|
|Davidson, Viscountess||MacAndrew, Colonel Sir C. G.||Somerville, A. A. (Windsor)|
|Davies, Major Sir G. F. (Yeovil)||Macdonald, Capt. P. (Isle of Wight)||Stewart, J. Henderson (Fife, E.)|
|Dawson, Sir P.||McEwen, Capt. J. H. F.||Storey, S.|
|Denman, Hon. R. D.||McKie, J. H.||Stourton, Major Hon. J. J.|
|Denville, Alfred||Macnamara, Capt. J. R. J.||Strauss, E. A. (Southwark, N.)|
|Doland, G. F.||Macquisten, F. A.||Strauss, H. C. (Norwich)|
|Donner, P. W.||Magnay, T.||Strickland, Captain W. F.|
|Dorman-Smith, Major Sir R. H.||Maitland, A.||Stuart, Lord C. Crichton- (N'thw'h)|
|Duckworth, W. R. (Moss Side)||Makins, Brig.-Gen. E.||Sueter, Rear-Admiral Sir M. F.|
|Dugdale, Captain T. L.||Margesson, Capt. Rt. Hon H. D. R.||Tasker, Sir R. I.|
|Eastwood, J. F.||Markham, S. F.||Tate, Mavis C.|
|Eden, Rt. Hon. A.||Marsden, Commander A.||Touche, G. C.|
|Ellis, Sir G.||Mason, Lt.-Col. Hon. G. K. M.||Turton, R. H.|
|Elmley, Viscount||Maxwell, Hon. S. A.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Emmott, C. E. G. C.||Mayhew, Lt.-Col. J.||Ward, Irene M. B. (Wallsend)|
|Emrys-Evans, P. V.||Meller, Sir R. J. (Mitcham)||Wardlaw-Milne, Sir J. S.|
|Entwistle, Sir C. F.||Mellor, Sir J. S. P. (Tamworth)||Waterhouse, Captain C.|
|Erskine-Hill, A. G.||Mills, Sir F. (Leyton, E.)||Watt, G. S. H.|
|Findlay, Sir E.||Mills, Major J. D. (New Forest)||Wayland, Sir W. A|
|Fyfe, D. P. M.||Mitchell, Sir W. Lane (Streatham)||Wedderburn, H. J. S.|
|Ganzoni, Sir J.||Moreing, A. C.||Whiteley, Major J. P. (Buckingham)|
|Gilmour, Lt.-Col. Rt. Hon. Sir J.||Morris, O. T. (Cardiff, E.)||Williams, H. G. (Croydon, S.)|
|Gluckstein, L. H.||Morris-Jones, Sir Henry||Willoughby de Eresby, Lord|
|Goldie, N. B.||Morrison, G. A. (Scottish Univ's.)||Wise, A. R.|
|Grant-Ferris, R.||Morrison, Rt. Hon. W. S. (Cirencester)||Withers, Sir J. J.|
|Grattan-Doyle, Sir N.||Munro, P.||Womersley, Sir W. J.|
|Guest, Hon. I. (Brecon and Radnor)||Neven-Spence, Major B. H. H.||Wood, Rt. Hon. Sir Kingsley|
|Gunston, Capt. D. W.||Nicholson, G. (Farnham)|
|Hacking, Rt. Hon. D. H.||Nicolson, Hon. H. G.||TELLERS FOR THE AYES.—|
|Hambro, A. V.||O'Connor, Sir Terence J.||Mr. Grimston and Major Sir|
|Hannon, Sir P. J. H.||O'Neill, Rt. Hon. Sir Hugh||James Edmondson.|
|Acland, Rt. Hon. Sir F. Dyke||Edwards, Sir C. (Bedwellty)||Jones, A. C. (Shipley)|
|Acland, R. T. D. (Barnstaple)||Evans, E. (Univ. of Wales)||Jones, Sir H. Haydn (Merioneth)|
|Adamson, W. M.||Fletcher, Lt.-Comdr. R. T. H.||Jones, J. J. (Silvertown)|
|Alexander, Rt. Hon. A. V. (H'[...]sbr.)||Foot, D. M.||Kennedy, Rt. Hon. T.|
|Anderson, F. (Whitehaven)||Gallacher, W.||Kirkwood, D.|
|Attlee, Rt. Hon. C. R.||Gardner, B. W.||Lansbury, Rt. Hon. G.|
|Banfield, J. W.||Garro Jones, G. M.||Lawson, J. J.|
|Batey, J.||George, Major G. Lloyd (Pembroke)||Leach, W.|
|Bellenger, F. J.||George, Megan Lloyd (Anglesey)||Lee, F.|
|Bevan, A.||Gibson, R. (Greenock)||Leonard, W.|
|Broad, F. A.||Greenwood, Rt. Hon. A.||Leslie, J. R.|
|Bromfield, W.||Grenfell, D. R.||Lovat-Fraser, J. A.|
|Brown, C. (Mansfield)||Griffith, F. Kingsley (M'ddl'sbro, W.)||Lunn, W.|
|Burke, W. A.||Griffiths, G. A. (Hemsworth)||Macdonald, G. (Ince)|
|Cape, T.||Groves, T. E.||McGhee, H. G.|
|Charleton, H. C.||Guest, Dr. L. H. (Islington, N.)||MacLaren, A.|
|Chater, D.||Hall, G. H. (Aberdare)||MacNeill, Weir, L.|
|Cluse, W. S.||Hall, J. H. (Whitechapel)||Marshall, F.|
|Cove, W. G.||Hardie, Agnes||Mathers, G.|
|Cripps, Hon. Sir Stafford||Harris, Sir P. A.||Maxton, J.|
|Daggar, G.||Henderson, A. (Kingswinford)||Messer, F.|
|Dobbie, W.||Hills, A. (Pontefract)||Montague, F.|
|Dunn, E. (Rother Valley)||Jagger, J.||Morrison, R. C. (Tottenham, N.)|
|Ede, J. C.||Johnston, Rt. Hon. T.||Paling, W.|
|Parker, J.||Smith, E. (Stoke)||Watkins, F. C.|
|Pethick-Lawrence, Rt. Hon. F. W.||Smith, T. (Normanton)||Watson, W. McL.|
|Quibell, D. J. K.||Sorensen, R. W.||Wedgwood, Rt. Hon. J. C.|
|Ridley, G.||Stephen, C.||Whiteley, W. (Blaydon)|
|Roberts, Rt. Hon. F. O. (W. Brom.)||Stewart, W. J. (H'ght'n-le-Sp'ng)||Williams, T. (Don Valley)|
|Roberts, W. (Cumberland, N.)||Strauss, G. R. (Lambeth, N.)||Windsor, W. (Hull, C.)|
|Rothschild, J. A. de||Taylor, R. J. (Morpeth)||Woods, G. S. (Finsbury)|
|Sexton. T. M.||Thorne, W.||Young, Sir R. (Newton)|
|Shinwell, E.||Tinker, J. J.|
|Short, A.||Viant, S. P.||TELLERS FOR THE NOES.—|
|Silverman, S. S.||Walkden, A. G.||Mr. Clement Davies and Mr.|
|Simpson, F. B.||Walker, J.||D. O. Evans.|
Question, "That this Schedule be the Schedule to the Bill," put, and agreed to.
§ Bill committed to a Committee of the Whole House for To-morrow."—[Mr. Grimston.]