§ 8.47 P.m.
§ Mr. Westwood
I beg to move, in page I, to leave out line 15.
This Amendment seeks to delete from the list of additional grounds for divorce provided for in the Bill the ground of incurable insanity. The other grounds for divorce provided for in the Bill all arise from causes over which one or other of the parties to the marriage had control or could have avoided. Insanity is a disease. Where other diseases attack the human frame, it attacks the mind and it is something over which no one has any control. It may even be the case that the insanity of a wife or husband has been caused by the cruelty or by some other action of the other party to the marriage. Thus, under the proposal in this Bill, it would be possible for a married person who had driven his or her partner insane, to make that a ground for seeking divorce. On principle, I cannot agree to that proposition. There are arguments in favour of the other additional grounds for divorce proposed in the Bill, and for breaking a marriage bond which has not been faithfully kept by both parties, but those arguments do not apply to insanity. In the Bill we have a definition of incurable insanity. A person who has been for a period of five years continuously under care and treatment as an insane person is to be held to be "incurably insane."
§ Mr. Deputy-Speaker (Captain Bourne)
I should point out to the hon. Member that there are subsequent Amendments on the Paper dealing with this point. I do not know whether the House would regard it as convenient to have a general discussion now on the question of insanity, on the understanding that in that case hon. Members who have put down other Amendments on the subject would formally move their Amendments in order to take the decision of the House upon them, or whether the House would prefer to discuss each Amendment in turn. In that case we cannot have on this Amendment a discussion covering points which will be raised in subsequent Amendments. I am in the hands of the House.
§ Mr. Westwood
I think it would be advisable to have a general discussion now as there are other Amendments on the Paper dealing with similar point.
§ Mr. Poole
May I point out that if that procedure be adopted it will place some of us at a definite disadvantage. We may desire to oppose this Amendment and to support later Amendments. A Member could hardly make a speech supporting one Amendment and opposing another in the same discussion. [HON. MEMBERS: "Why not?"] At least, he would have to be a political acrobat to do so.
§ Mr. Deputy-Speaker
As objection is taken to a general discussion, we must confine the present discussion to the Amendment which is before the House, and we cannot consider the subsequent Amendments until we reach them.
§ Mr. Westwood
I accept your Ruling, Mr. Deputy-Speaker, although I think it would have been of advantage to have had a general discussion covering the whole subject. I was about to point out that there are difficulties now in the minds of many medical experts on the question of insanity being incurable. I have here an extract from the "Edinburgh Evening News" of 24th June which describes the case of a husband whose wife had been for seven years in a mental home. He regarded her as hopelessly incurable and contemplated divorce proceedings under the new Matrimonial Causes Act, but he is now told that his wife shows every sign of making a recovery as a result of new knowledge which has been brought to light by medical science. I contend that it would be wrong in a Bill of this kind to define as incurably insane a person who has been under treatment continuously for five years, when it is admitted by medical science that there is the possibility of a cure even after the patient has been seven years in a mental institution. As I say, where one of the two parties to a marriage breaks the bond, through causes over which they have control, it should be competent for the courts to grant a divorce, but where the cause alleged is one like insanity over which the person concerned has no control and where one party may actually have driven the other party insane, it would be wrong to incorporate it in a Bill of this kind as a ground for divorce. This matter, I know, was argued out in Committee upstairs. 1219 I was not present at those proceedings, but I feel that I could not conscientiously allow incurable insanity to be included in the grounds for divorce, without lodging my protest and if necessary carrying it to a Division.
§ 8.55 p.m.
§ Miss Horsbrugh
I beg to second the Amendment.
I expressed my views on this subject very fully in the Committee upstairs, and I do not propose to go over all the arguments on this occasion. I fully agree with what has been said by the Mover of the Amendment. We are dealing here with something which is different from the other grounds for divorce. There are very few cases to-day, I believe, in which the experts who have to do with mental disease would say there is such a thing as incurable insanity, where there is not the slightest chance of the patient recovering, and because there is that doubt we are dealing with a ground for divorce, not on facts, but on reasonings, suggestions and ideas.
I believe that if this Bill becomes law without this Amendment, we shall be giving to a great many people who are in a state of nervous breakdown, or even who are patients in mental hospitals, a tremendous amount of anxiety, and that we shall cause such people, from the very moment when a nervous or mental disease may come over them, the fear that their husband or their wife, as the case may be, may be able to obtain a divorce from them, when all the time they are suffering from a disease that can be cured and that may be cured. They will feel that they have not a chance of putting their case, as they will be in an institution, and that they will be divorced as incurably insane but yet may come out later into the world. It may be that in the case of a wife, her husband may be a wage earner who has married again and got a new home, and the wife, who was said to be incurably insane and has proved curable, comes out sane into the world again, with not a single penny, with no widow's pension, with no unemployment allowance, with absolutely nothing, and she will come out of an institution for the insane only to have to go into the poor house.
It is a very grave matter, and a mis take such as that would have appalling 1220 consequences. If it was a thing that could be proved, if there was something in the Bill to safeguard the proving of incurable insanity, much more could be said on its behalf, but if these words remain in the Bill, it is possible that we may have in Scotland case after case where, on the mere presumption that the case will not be cured, divorce will be granted. I wonder whether the husband of a wife who has been certified as insane and placed in an institution, when it comes to her having been treated there for four years, will be very anxious to see that she gets a full chance of coming out before the five years have elapsed. I wonder whether there will be the same anxiety, the same help for the mental patient, as might otherwise be the case, and whether, when the five years period comes, divorce may not take place simply because the anxiety has been enough to have retarded recovery.
I have in my possession letters that have been sent to me on this subject, and I have discussed the matter with people who already, because this matter is being discussed, are, I am told, having their recovery retarded. I have here a letter from somebody who explains that her daughter, the mother of a young family, is now in an institution, but she reads the paper and knows what is going on. She has read about this Bill, and already, when her mother goes to see her, she expresses anxiety over and over again that if she is not better, her husband may divorce her. She feels that she must be better by such and such a period, and I am asked in this letter whether I can do nothing to safeguard the position of people like her, who feel that because definite time limit is put in the Bill, they may not recover sufficiently soon and thus become liable to be divorced.
I would like hon. Members to consider well the dangers of this situation. We have something far worse in this Scottish Bill than was introduced into the English Bill, and I wonder how those who drafted this Bill drafted it in this manner. There is in Clause 1 no definition of what "incurably insane" means. The definition is tucked away elsewhere, and people who have looked at the Bill and written to me on the subject, asking me to oppose the Bill, feel that the insertion only of the words "incurably insane" rather than a definition of incurable insanity is a very dangerous thing. I 1221 would ask the promoters of the Bill whether they will tell us why, when the Bill was framed, these words only were put in, and why we were not given in the Clause the full definition of "incurably insane." A definition is given about cruelty and other things, and it is given in the English Bill, but it is not given in this Clause, and many people consider that that makes it unsafe. In Clause 6 there is a definition, but nobody would describe it as a definite definition of "incurably insane"; and it is because of the anxieties that will be caused to married people in institutions that I hope the Amendment will be accepted.
I would remind hon. Members that cures have taken place in cases where, only a few years ago, it was thought that such a type of illness was incurable. Let us remember that last year in Scotland 27 married people who had been in institutions for more than five years came out as cured, and of those 27 people there were 22 who came out whose husband or wife was still alive. On the Committee stage my right hon. and learned Friend the Lord Advocate pointed out that 13 of those 22 were between the ages of 5o and 82, and he suggested that people over 50 were not likely to sue for a divorce, because, he thought, divorces were sued for because people wished to marry again, and that those over 50 would not wish to do so. In view of what has happened in England, where they look at it from another point of view, I hope the Lord Advocate, when he replies, will let us know whether in England it is not the case that the average age has been 80. I think the case put before us by the Lord Advocate, that we have only to consider that we were to protect nine or ten, taking the average of the 27 last year, does not stand after that.
In Scotland last year 22 married people who had been over five years in an institution came out, and I believe that if the Bill were passed without this Amendment, grievous harm would be caused. I do not believe that in Scotland there is any wish for this particular ground for divorce. I have received quantities of letters since I spoke on the Committee stage and only one was in favour of it. The writer of that letter was in favour of divorce for many other things besides this. I ask hon. Members 1222 to consider well whether their correspondence from their constituencies and their visits to Scotland have convinced them that the people of Scotland are asking for this. Have they found that this is an urgent necessity? If it is not an urgent necessity, why should not Scotland wait until the experiment that is being made in England has been tried out? Let us see whether it brings the best results. In the meanwhile, I ask support for this Amendment because I believe it is desperately wanted by the people of Scotland.
§ 9.6 p.m
§ Mr. Johnston rose——
§ Mr. Kirkwood
Does the fact that a Front Bench Member has been called mean that this Debate will finish with his speech?
§ Mr. Deputy-Speaker
This is a Private Member's Bill, and it is the usual courtesy to call a Front bench Member when he rises, but that does not mean that the Debate will finish.
§ Mr. Johnston
I understand that my hon. Friend the Member for Dumbarton Burghs (Mr. Kirkwood) is a supporter of the point of view which has just been put by the two hon. Members who have spoken, and I am sure he will agree that it is desirable, if we are to have a discussion on this point, that both sides should be put. I am one of those who in the Committee voted with the majority in favour of the retention of "incurably insane" in the Bill. Twenty-four Members of the Committee voted for it and nine against. There must have been some arguments or some reasons which induced the 24 Members to support the idea that "incurably insane" should remain in the Bill. I have considerable agreement with the hon. Lady the Member for Dundee (Miss Horsburgh) when she referred, against your Ruling, Sir, to what might be a proper definition of incurable insanity. When we come to Clause 6 I shall have similar hesitation in regard to the limited safeguards which are in the Bill.
We are discussing now the simple question whether incurable insanity should remain in the Bill as a cause for divorce. In the earlier stages I was opposed to it, but I think that the balance of argument is in favour of its insertion. There are difficulties which we all recognise. 1223 There are family and domestic troubles which we all recognise. There is the point of view put by the hon. Member for Dundee, which nobody can dispute, and there is the argument used by my hon. Friend the Member for Stirling and Falkirk (Mr. Westwood), which nobody can dispute either. We have to address ourselves, therefore, to the balance of the burden of difficulties. There are cases where a woman is taken away because of mental illness and the husband is left with a young family. I know of one such case. He has to get a housekeeper, and sometimes the housing conditions and accommodation are such that associations of that kind lead to immorality. It is adultery, and we should be false to our duty here if we designated it in any other way. There are cases—nobody knows how many—in which this is a factor in the situation, and we have to face it. It is no use merely shutting our eyes to the disadvantages which are inherent in the existing situation. What we have to do is to balance up the disadvantages and see where the least possible public harm lies.
We have been given the figures which show that there are 27 people in Scotland who are discharged on the average in a year after having been five years in an institution. Of those, there are five whose husband or wife, as the case may be, has died. Of the remaining 22, there are some—nobody knows how many—where the question of divorce has never arisen and where the spouse outside awaits with joy and gratitude the return of the afflicted companion. The question of divorce might have arisen in five, ten or a dozen cases, and what we have to face honestly as public representatives is whether the dangers inherent there—and there are dangers—are greater than the dangers and difficulties and miseries which are inherent in the existing situation. For my part, subject to a proper definition and proper safeguards being given as to what is incurable insanity, and subject to precautions being taken to see that no illicit or unfair advantage is taken of this Measure, I think that the balance lies in favour of keeping in the words "incurably insane." If incurable insanity can be properly defined and proper safeguards can be given, I think that there are such a number of people 1224 in Scotland who will desire that the spouse outside should be given freedom, that I am prepared to vote, as I did on the Committee stage, for the retention of these words in the Bill.
§ 9.15 p.m.
§ Mr. Kirkwood
I cannot give a silent vote upon this Amendment, the reason being that I opposed this Bill tooth and nail in Committee, supporting the senior Member for Dundee (Miss Horsbrugh). Like the right hon. Member for West Stirling (Mr. Johnston) I listened to all the Debates in Committee. Fortunately or unfortunately it does not usually happen that I reason along different lines from the line taken by the right hon. Member, but I do so very definitely to-night. All the authorities we heard—and we heard doctors and lawyers, never mind the ordinary Members—informed us that there is no medical authority in this country which will certify anyone as incurably insane, and it is a terrible responsibility which Members are taking upon themselves in supporting this Bill in face of the opinions of men who have specialised in this particular disease. I call it a disease because I regard insanity as a disease, like smallpox or tuberculosis. At one time those diseases were supposed to be incurable, as cancer is regarded to be now, but man's ingenuity has succeeded in overcoming nearly every disease which afflicts the human frame, and it is just possible that in time we may discover ways and means of alleviating this hellish disease. In spite of the advice of medical practitioners, etc., warning us not to do so, the Committee decided to include incurable insanity in the Bill, but I hope the House will not follow that example, because we have had no evidence that insanity is incurable. Even the right hon. Member for West Stirling who has evidently recanted from the position he took upstairs, did not give the House one little bit of information. We have had no guidance from our Front Bench as to why we should not vote for this Amendment.
This is a most diabolical Bill, apart from the particular words which we wish to delete. We desire to delete the reference to incurable insanity in order to try to make the Bill as human as we possibly can. I said that I was not going to take any part in the discussion, but it is impossible for me to sit silent, after the fight 1225 I put up in Committee, when I find that the Government have now taken the Bill under their wing and know that presently we shall have whole hordes of the supporters of the Government coming in to vote, although they have not been present to hear the arguments. It is another reason why Scotland should get home rule. The English Members, who are not here now, will presently come in, probably in their hundreds, and swamp Scotland again. It is most unjust. I do not want to say any more, because I feel so strongly about the Bill. It is an abominable affair that this Bill should be handed on to Scotland, as it will be, not by the votes of Scottish men and w omen at all. The senior Member for Dundee has stood her ground throughout on this Bill, and I thought she was going to get some support, but from the information which I have been able to glean in speaking to several Members since it was known that the Bill was to come on to-night it has been arranged for the supporters of the Government to come in to vote the Scottish Members down. I hope that the Scottish Members will rally to us, because they can take it from me that they will have to answer to Scotland if this Bill goes through.
§ 9.20 p.m.
§ Mr. Henderson Stewart
This is an occasion on which each of us has to consult his own conscience and to act upon his experience of life and his observations during such years as he has lived. The issue has nothing to do with party affiliations at all. While I fully appreciate the cases brought forward by the Mover and Seconder of this Amendment, my experience seems to accord rather with the remarks made by the right hon. Member for West Stirling (Mr. Johnston) and I feel that the greater harm would be done to the person who is left with an insane partner. Like the right hon. Gentleman I know a case in which a man has been left with a family, his wife having been sent to a home. She is, so far as we can see, incurably insane, and he has been put into an insufferable position.
So far as one can gather from such reports as are given by the medical authorities. I would point out that this Clause does not compel anything to be done. It will only operate if there 1226 is a petition for divorce by the other partner to the marriage bond, and it will surely be an exceptional case if the other partner takes action merely because the spouse is insane. There will probably be a good many other reasons.
Yes, but I cannot imagine a man making it the only ground for taking action. I think he would have other reasons as well, and I think we must take into account the wider considerations which will affect a man's judgment and desires in a case like this. I feel that if we were to deny to a man or woman this way out of an intolerable position we should not be acting fairly or justly. I recognise that there are these 22 possible cases, but I am sure that, if we could get at the figures, there would be many times that number of cases on the other side.
§ Mr. Kirkwood
The hon. Member, who was on the Committee, will recall that the onus of proof has been put upon the person who is in the institution. The onus of proving that he or she is not incurably insane, that burden is put upon an individual who is one of the most helpless persons in society.
I do not deny that, but I invite the hon. Member to consider the other partner to the marriage bond. Our consideration should be for him equally with the other person. My greater sympathies are for him. I feel that I should be acting in accordance with my duty, as I see it, by supporting this Clause.
§ 9.26 p.m.
§ Mr. Poole
I am sure that every one will approach the Bill and the Amendment with a good deal of sympathy with both points of view that have been expressed. The speech of the hon. Lady the Member for Dundee (Miss Horsbrugh) is one of which we must all take notice. She stated a very definite case for supporting the Amendment. I do not yield to any one in my respect for the sanctity of marriage, but I feel that I must oppose the Amendment. The right hon. Gentleman the Member for West Stirling (Mr. Johnston) pictured the case of those who found themselves in an institution probably because of the cruelty of their partner, who would be free to obtain a divorce though he had been responsible for the 1227 other partner finding her way into the institution. For many years I served on a mental hospital board and on a visiting committee in lunacy and I have seen at first hand many cases who find their way into these institutions. There is another side to the picture that has been painted. What is the position of a wife whose husband by his own personal abuse, perhaps by excessive drinking, has brought himself into the position of becoming incurably insane? Do you think that the House is entitled to tie a woman, perhaps with a young family, to such a husband? That is a side of the picture that occurs very often in real life. The onus in the Clause is that a person shall be found to be incurably insane. I must dissociate myself from the remark of the last speaker that the onus will be upon the person who is in the institution——
§ Mr. Poole
I do not accept that for a moment. The onus will surely be upon the pursuer. [HON. MEMBERS: "No."] If that is the position, I accept it, but I do not see how a person who is in an institution can have any means of proving that he is not insane. There are many people in institutions who claim that they are not insane and that everyone else is. But, if that is the onus in the Bill, I shall certainly support the Amendment. I was speaking under a misapprehension. If the onus is on the person in the institution, it is an intolerable position and one to which I will not subscribe. I will not pursue my remarks any further.
§ 9.30 p.m.
§ Mr. Erskine Hill
I think the whole House has a great deal of sympathy with the aspect of the case put so admirably by the hon. Member for Dundee (Miss Horsbrugh) and others. At the same time, I think the House will equally consider the hardships that have been explained by the right hon. Gentleman the Member for West Stirling (Mr. Johnston). When passing Bills in this House we often find ourselves in the position of having to inflict hardship on someone and we have to weigh up what is best on balance. The figures that have been given show clearly to my mind that, when you have over 2,000 people who have been in asylums for over five years and continue to be insane, you are dealing with a substantial body and, when you 1228 compare that with the figures that have been agreed to in the Debate, of some 27 altogether, reduced to 22, who are left married when they go out of the asylum, one is dealing with two very distinct problems. On balance, this principle of divorce for incurable insanity should be established. It has already been agreed upon in the English Bill. In the Scottish Standing Committee the Division showed that Scottish opinion was in favour of the Bill, and it is the hon. Member for Dumbarton (Mr. Kirkwood) who will have to answer for Scotland and no one else if the recommendations of the Committee are not followed. The hon. Member for Stirling and Falkirk (Mr. Westwood) pointed out that cruelty itself, which was the ground of divorce, might be the cause of the insanity, and there is great force in what he says, but there is a later Amendment which fully covers that point.
§ Mr. Erskine Hill
I thought I was entitled to do so, seeing that subsequent to your Ruling the hon. Member raised the point that I was endeavouring to answer. I will not proceed further in case I should be acting against the Ruling. The hon: Lady chaffed me about the average age of those who have managed to get divorce in England, and I admit that it is high, but those people have got old waiting for this Act to pass, and I think she will find, when it comes into operation, that the average age is lower.
§ Miss Horsbrugh
Do not the statistics show that of people who were cured after five years, there were in Scotland ten under and 13 over 50?
§ Mr. Erskine Hill
I think that is so, but the hon. Lady is touching on a totally different point. The point is the average age of those who sought divorce in England. There are, of course, a great many older people who come out——
§ Mr. Erskine Hill
I agree with what my right hon. Friend said, though it appears to be negatived by the effect of the 1229 English Act, that the whole of those old people would not naturally seek divorce. The hon. Member for Dumbarton Burghs said that it would not be possible to prove incurable insanity and, I think against your Ruling, did deal with the question of presumption. I will not deal with that question at this time beyond saying that I would agree with what the hon. Member said and that it is for that reason that I support the presumptive rule which is laid down in a later Clause. I want to persuade the House, if I can, that we are dealing here with a very real problem. In many poor households you have the sort of situation to which an hon. Member referred, the man or the woman being in the asylum. I can conceive of no greater cause for divorce and of no greater inability to fulfil what in Scotland we call the marriage contract, than insanity, which leaves the spouse who is left more effectually alone, and still not able to remedy it, than by death itself.
§ 9.38 p.m.
§ Mr. Barr
I rise to give my support to the Bill, as against the Amendment. I recognise the earnestness and the depth of conviction of those who take the opposite view to myself; I have dealt for so long and so closely with this matter that I can appreciate very much their point of view. I appreciate also the earnestness and the deep conviction of my hon. Friend the Member for Dumbarton Burghs (Mr. Kirkwood). If he can make an argument for Scottish Home Rule out of this, I will certainly not object to that part of his speech. I think he made one mistake when he spoke as though the Government had taken this Measure under their aegis, and would come in to defeat Scottish Members. I understand that the Bill remains a private Member's Bill and that there is to be a free vote.
Reference has been made to the opinions of medical practitioners, alienists and the like. In reply to my hon. Friend the Member for Dumbarton Burghs, I would point out that those opinions were by no means all on the one side. The name of Dr. Henderson has often been mentioned in these Debates. He is an eminent medical man in Edinburgh. No sooner had he given his opinion in favour of insanity being ruled out as a ground of divorce, then equally eminent men plunged into the controversy on the other side. We can take it that 1230 there is a very large volume of medical opinion in favour of including insanity as a ground of divorce. The point has been brought forward here to-night that the growing opinion of medical men is that even this disease may prove to be curable. I support that point very strongly. I would recall that there are very few meetings of the British Medical Association year by year but that indication is made that some disease hitherto regarded as incurable has been found to be curable. If it should prove that insanity is curable, and that there is not such a thing as incurable insanity there will be no divorce, because none——
§ Mr. Westwood
No, if the cure takes place after six or seven years, people can be divorced because the cure will not have taken place within five years.
§ Mr. Barr
I am in a difficulty because of Clause 6 to which I am not able to refer. I do not go further, observing your Ruling entirely, than to say that provision is made in the Bill for the freest expression of opinion in regard to whether there should be such divorce, and my point, which my hon. Friend did not appreciate, was that it is a complete argument that divorce should not take place, because there might be curability. That is the only point I make at this time. I will only say—this is another point in response to what fell from my hon. Friend the Member for Lichfield (Mr. Poole)—that we are not dealing just now with grounds of presumption, but the whole point is that a certain presumption will follow from the fact that people have been five years under continual care, but against that presumption the Bill will later provide that there may be the fullest argument to combat that presumption, and for the whole question to be treated upon its merits.
§ Mr. Mathers
On a point of Order. Because of the observations that my hon. Friend is making, will you allow him to indicate where in the Bill he finds ground for the statement which he has just made?
§ Mr. Deputy-Speaker
I think it would be better to leave the definition until we come to the Clause in question and to the Amendment to leave out the appropriate Sub-section dealing in ith this matter. It is desirable to have a full Debate when the matter arises in that way.
§ Mr. Barr
I think I was carefully refraining from being definite on that matter. Most of us are aware of what is provided in Clause 6, but I refrain from condescending upon that Clause. An instance was given of a case of insanity for seven years, ending in discharge, and I gave an instance myself in the Committee of a person who had been in an institution in the West of Scotland for 25 years and who was allowed to go home. The governor of the mental hospital thought he could risk it. He thought he would allow her to go home, and she never returned. Those individual cases are extremely rare, and should not prevent us considering the other matters to which I will refer before I have done. This matter has already been examined with very great care. We had a discussion at great length on the English Bill, and the matter has been very fully discussed in the Scottish Grand Committee. The Senior Member for Dundee (Miss Horsbrugh) has asked us to show that there is any wish in Scotland for the Bill, and I think that my hon. Friend the Member for Dumbarton Burghs pointed out that it is we who have to answer for Scotland.
I will take one or two indications of the opinion of Scotland. I will take the Church of Scotland itself. It is not the Church to which I belong, but it covers the main membership of the churches in Scotland. On the first occasion, at the Assembly before last, approval was given to the Bill and to the setting up of a committee carefully to investigate the various causes on which divorce could take place, particularly from the point of view of the purpose of marriage having been defeated. I think there were 12 ministers and 10 elders of all shades of opinion on that committee, and the result of it was that they approved of the Bill as it now stands.
§ Miss Horsbrugh
Let us get this point clear. I think the hon. Member will agree with me that that committee said in its report that it would not agree to insanity, but that it would agree to incurable insanity. That is the difficulty of definition again.
§ Mr. Barr
That exactly confirms what I am saying, because it is incurable insanity that is in the Bill. They were in close touch with us, and particularly with 1232 myself and with the promoter of the Measure. They sent us their findings, and all that they did was to put in two Amendments, which were not minor in importance, but were small Amendments, and these were accepted by the promoters and are now in the Bill. One of them was as to the continuous character of the care, and the other provided that voluntary patients were excluded. These small Amendments have been accepted. Otherwise they agreed cordially with the Bill.
§ Mr. Westwood
If my hon. Friend is suggesting that the committee were unanimous, may I point out that on page 3 of the report these words occur:While there is a difference of opinion as to the inclusion of insanity as a ground of divorce.That does not look as though the committee were unanimous.
§ Mr. Barr
I was not saying that they were unanimous; I was giving their final judgment on this particular Measure. The convener of the committee himself, and others who were greatly interested in the Bill, were in the closest touch with us, and on behalf of the committee and knowing the opinion of their Church, they accepted it. I make no suggestion that they were absolutely unanimous; we know that they were not; but we are dealing with the Bill as it now stands, and I say that it has the approval, not only of the committee, but of the Church of Scotland, or at least a very large majority of that Church. In the next place, I would refer to my own Church. At a recent Assembly this very question of insanity was brought forward—[Interruption]. My Church, I say with pride, is as sane as any other Church, and as sane as those who are outside all churches. I want to be perfectly fair. I admit that there are churches in Scotland that are strongly opposed to insanity being a ground for divorce the Free Church of Scotland, for example. I am taking my own Church. This very subject was debated; it was the only subject brought forward; and, by a majority of more than two to one, we resolved to take the Bill as it stands, and continue to include insanity as a ground of divorce.
There are only two other things that I want to say. My right hon. Friend the Member for West Stirling (Mr. Johnston) touched on a very vital point. There are questions of virtue itself, questions of 1233 morality, that bring before us the consideration that there may be, and I believe there are, cases in which it is in the interests of pure living and of morality that such relief should be granted in certain cases, and I believe that, balancing the two sides, balancing the clangers, if you like, these considerations will outweigh—at least they do with me, and I believe they will with others—the other disadvantages, inconveniences and even dangers. The other thing I want to say, and I think it was mentioned by the hon. Member for East Fife (Mr. H. Stewart), is that this, after all, is not a measure of compulsion. The cases in which it will be taken advantage of will be extremely rare. Even in the case of desertion as a ground of divorce—and that has obtained in Scotland since 1567 or thereabouts—the percentage of divorces to marriages in Scotland has always been extremely small. This provision will not be taken advantage of save in very rare cases. It is for the churches themselves, and all who mould the opinion of the country, to engender such feelings, such high ideals of the marriage state, such ideas of honour and virtue and fairness, that a wise use will be made, as I believe it will, of the provision. I think that, in all the interests concerned, insanity—incurable insanity—should be a ground of divorce.
§ 9.53 P.m.
§ Mr. Dingle Foot
I think we shall all agree that, in considering this Amendment, we are dealing with the most serious issue raised by the Bill. I want to give, in as few words as possible, the reasons why I personally do not feel able to support the Amendment. I want to make it quite clear that we are not dealing with, and I am not now considering, the question of the onus of proof. I do not say that I shall necessarily agree with the hon. and learned Member for North Edinburgh (Mr. Erskine Hill) when we come to the Clause which deals with the onus of proof. What we are considering now, and under your Ruling, Mr. Deputy-Speaker, we must confine ourselves to this, is simply the question whether in future in the law of Scotland incurable insanity shall be a ground of divorce. That is the only issue that we are called upon at this moment to decide.
It is perfectly true that we have not as yet had very much experience of the 1234 working of the English Act, but we have had a certain amount of experience of it, and I think I may be one of the very few Members present in the House this evening who have had an opportunity of seeing that Act in operation; and, apart from Clause 6, this Bill, of course, is drawn upon very similar lines. These matters are not dealt with at all lightly in the divorce courts. They are not considered in the same way, or, indeed, in anything like the same time, as ordinary undefended divorce cases, which do not, of course, take very long. In fact, the courts inquire with the most scrupulous care, not only into the present mental health but also into the whole mental history of the respondent. In each case it is provided, as it is to be provided under this Bill, that the respondent shall be represented. Even if this Bill were to go through in its present form——
§ Lieut.-Commander Agnew
On a point of Order. I think you gave a Ruling, Mr. Deputy-Speaker, that questions of court procedure, proofs, and the like could not be discussed at this stage, but should be deferred until Clause 6. If that be so, would it be in order for an hon. Member to discuss what the court procedure is in England, and how careful and good it is, when we have not yet arrived at the sage at which we can discuss the court procedure in Scotland?
§ Mr. Deputy-Speaker
It did not seem to me that the hon. Member was saying anything that was out of order. He was not going into the question, which is raised in Clause 6, of where the onus of proof would lie, but was merely pointing out how cases of this particular character were dealt with in the courts of this country. That appears to me to be strictly relevant to this Amendment.
§ Mr. Foot
I was saying that in each case the respondent is represented, and the doctor who is called in order to prove insanity is in each case not only examined by counsel for the petitioner, but is cross-examined, and closely cross-examined, 1235 by counsel for the respondent; and it is only when the court is as fully satisfied as it is possible to be—I agree with my hon. Friend opposite that it is not possible to be absolutely certain—that a decree is granted. These things are not dealt with in the English courts, and will not be in the Scottish courts, in any formal spirit.
I come to a point which I do not think has been brought before the attention of hon. Members representing Scottish constituencies. I do not say that we ought necessarily to follow English legislation. I do not say for one moment that because a Bill of this kind has been passed for England we ought necessarily to pass it for Scotland, but I want to bring to the notice of the House one difficulty, and it seems to me a very serious difficulty, that would be created—at any rate, it would be an anomaly if in future incurable insanity were to be a ground for divorce in England and not in Scotland. Anyone is entitled to go and sue for divorce in England if he can show that he has an English domicile. These people do not need to be natives of England; they can come from any other part of the world. Suppose this Amendment is carried, what is to be the position?
In the first place, take a case where the wife is insane, and confined in an institution in Scotland for five years or upwards, and the husband wants to get a divorce on grounds of insanity. If he happens to be a wealthy man and it is easy for him to change his permanent residence, to leave Scotland and go to live somewhere in England, as soon as he has got the evidence which would enable him to satisfy the English court that he has changed his domicile that would enable him to get a decree in the English court. The husband who happened to be a poor man—let us say a mill worker, for instance—would not have those advantages. For economic reasons, it would be impossible for him to change his domicile; and therefore he would have to put up with what we all agree is a hardship, whether we think it should be altered or not. Let me take the matter a step further. The wife's domicile is always the domicile of her husband. So we should have the further anomaly that a Scottish husband whose wife was insane and confined in an institution could 1236 change his domicile and live in England and get a decree in the English courts; but if it were the husband who was insane and the wife wanted a decree she could not do so, because her domicile would remain that of her husband. If he were confined in an institution in Scotland her domicile would be Scottish.
The Eon. Member for Stirling and Falkirk (Mr. Westwood) gave an example which I am bound to say did not entirely impress me. He read a cutting from a newspaper giving the case of a man whose wife had been in an institution for seven years and the man himself expressed the opinion that he might be eligible for divorce under the new Act, but I do not think that an example like that carries us very much further. [Interruption.] That example might have great force when discussing Clause 6. I do not think it carries us much further on this Amendment.
§ Mr. Westwood
May I submit that it did prove that after five years, so far. as this individual was concerned, she was not incurably insane. I was trying to show that it was difficult to prove incurable insanity. Science has discovered so many cures that it is difficult to say that any disease is incurable.
§ Mr. Foot
We all appreciate the force of what the hon. Member says. I do not think anybody would deny that there are a certain number of cases where, after five years, or any other period which we choose to put in an Act of Parliament, there will be a recovery. All that we are saying is that in this matter we have to strike a balance between the hardships on one side and the hardships on another. I do not think it has been denied that there are a far larger number of cases where there has been no recovery after five years. The senior Member for Dundee (Miss Horsbrugh) spoke with great force of 20 people who came out after five years. I am much more concerned with the very much larger number who did not come out after five years. We are creating a very great hardship for those young men and women who happen to be married to a husband or wife who is insane. It may be that it cannot be said that they will not recover, but in a great many cases there is an overwhelming probability that they will not 1237 recover. They are cut off from the married state, in all probability for many years and it may be for the rest of their lives.
§ Mr. Foot
There are obvious reasons why the divorce cannot be rescinded. The most serious argument that has been raised, both in the Standing Committee and in the Debate here this evening, was that raised by the hon. Member for Dumbarton (Mr. Kirkwood) and the hon. Member for Stirling and Falkirk, when they spoke of mental disease. I agree that that was a very formidable argument. They say, where there is no question of moral turpitude involved, no question of conduct involved, where the respondent is in no way at fault, should that be a ground for divorce? But can it be seriously contended that there is no real distinction between ordinary physical disease and mental disease? It seems to me, particularly when we are considering the marriage relation, that there is a very real distinction. When you have one partner in a marriage suffering from some form of physical disease, even there there can be some form of companionship between the husband and wife; but when there is mental disease, at any rate in some of the forms it frequently takes, any real form of companionship is impossible. This is the reason why I for one intend to vote against this Amendment when it goes to a Division. There is a provision both in English law and in Scottish law that in certain cases the marriage is not dissolved but the marriage ceremony is set aside, where, on certain grounds, the marriage is shown to be a nullity, where it is found that, whereas, in fact, there has been a ceremony, for one reason or another the marriage is not a marriage in fact. If we take the word "nullity" in a broader sense it applies to what we are considering here, that through something which may be no fault of the respondent but which, in the vast majority of cases, at any rate, is also no fault of the petitioner, these marriages have in fact become null. The marriage tie, the legal bond remains but everything else has gone.
§ Mr. Foot
Even if there is issue. At the time you get insanity of the degree required by this Bill everything but the legal bond has gone, and the hon. Gentleman the Member for Dumbarton in a very powerful speech, said that he could not take the responsibility of passing a Measure like this and striking possibly at those who might come out after some years in an institution. I cannot take the very much heavier responsibility of keeping within these bonds a very much larger number of people who are suffering, in my opinion, even more considerable hardship.
§ 10.7 p.m.
§ Mr. McGovern
I rise to support the Bill and also to ask that incurable insanity be retained in the Measure. I did not raise my voice in Committee because I wanted to give the Bill every opportunity and facility for getting on to the Statute Book. I hope that, although we have different points of view, we shall all give to each other the credit of acting according to the evidence that has been given both in the Committee and in this House. There is nothing in the Bill that compels any person to apply for divorce. The ground of incurable insanity is a ground that is reasonable. I have heard a great deal of talk about incurable insanity. I go very often to mental institutions in Scotland, and, in spite of all the arguments used here and the evidence from the medical profession, as one goes round those wards the doctor will say, "There is a case that will get steadily worse. The patient is incurable and will ultimately die, in all probability in a violent manner as the result of a seizure of some kind." Experience has taught these medical men to understand that there in the institutions are a large number of patients suffering from a type of insanity which they regard as incurable, no matter what the profession may say when it is theorising and it comes to a point that it has to put its opinions down in concrete form in a document.
I am often told by people who think they are very religious that divorce should not take place. I am not concerned with the man or woman who does not want divorce. If there is a desire for divorce among the community, you are entitled to pay heed to the demands and desires of the community. There may be other grounds that may crop up 1239 from time to time, but we can only move according to enlightened opinion in this country when we see the necessity of certain changes taking place. The senior Member for Dundee (Miss Horsbrugh) raised an argument which I thought was scarcely worthy of her. She said that a man might use this Measure in order to get divorce, but he might have some other reason in the background, meaning that he was tired of his partner. Surely, if he was tired of his partner, that in itself would be sufficient ground for divorce. I suggest that no person should be compelled by law to live with any partner with whom he or she did not desire to live. It was scarcely worthy of the hon. Lady in desiring to tie people together who were tired of each other or had lost any form of affection for one another.
I have seen people in these institutions, and I am thinking especially of a man who has been 21 years in an asylum. He has got steadily worse. His wife was a very young woman when he went into that asylum. She had a young family, and she has reared it. She knew very shortly after her husband was committed to the asylum that he would never recover. I have seen him at least every two years over a period of 17 years, and he has been getting steadily worse, and to-day he is in such a bad state that he cannot recognise me. A son of these people, 17 years of age, was also taken to the asylum and died within two years. There was a tragedy in that woman's life. It happened when she was in her early twenties, and does anyone suggest that that woman ought from the age of 25, all through her life, when she knew that her partner had been committed to that institution with no prospect of relief, to be tied to that partner? That is an example of the other cases.
As the right hon. Member for West Stirling (Mr. Johnston) said, you cannot do complete 100 per cent. justice to all people when you are considering certain Measures which are being passed in this House. I came to the Committee with a completely open mind. I have never given special consideration to the Measure. I have heard the arguments and the speech of the hon. Lady—I think she made a splendid speech from her particular angle—but I think that the evidence, on the other hand, is very much in favour 1240 of the point of view that I am expressing here to-night. I discussed the question of this Measure with a man whose wife has been in an asylum for about 13 years. He said: "I would never dream of taking action for divorce. I would be a cad to divorce my wife while she is suffering." The man who takes that point of view is not compelled to divorce his wife. His loyalty and affection can remain. There are many people who will go to the grave cherishing that feeling of affection and companionship of which they have been deprived. I know of cases with which I have come in contact while a member of an old parish council. Many of these have been women with seven, eight or nine young children. The husbands, in order to bring up these children, have had to bring another woman into the house. They have cohabited, and they have had children and have expressed a desire to marry, but have been prevented by the law.
There are many men who would never desire to desert or divorce their partner, but we have to take account of large numbers of people who might in certain circumstances desire to have their freedom in order to marry again. Medical men in institutions can say that this is a curable case and that that case will not recover. With regard to those people who may be religious, or other people who have qualms as to the passage of this Bill, I would say to them that if they have these scruples nobody is wishing to compel them to divorce their partner; they are free to exercise their religious scruples. If we were compelling them to take action for divorce or we were divorcing them by Act of Parliament, it would be another matter. What I desire to do is to do the best I can for people who are in these unfortunate circumstances, and, as the overwhelming amount of evidence seems to be in favour of the Bill, I shall give it my whole-hearted support in the Division Lobby.
§ 10.17 p.m.
§ Mr. Gallacher
I am not opposed to proper arrangements being made, under proper conditions,. for anyone who is desirous of divorce or who is entitled to divorce on the ground of insanity, but I am absolutely in favour of the Amendment. I submit that no one is capable of putting forward any real case on this question in a Bill such as this, and in 1241 the form in which it is drafted. The right hon. Member for West Stirlingshire (Mr. Johnston) tells us of a case where the wife is in an asylum, the man is left with a family of small children and he brings in a woman to help, and the housing conditions are such that they become immoral people. When I said this was not the answer he gave me a lecture on what constitutes immorality and adultery. Surely, if the man is left with a small family and he has to bring in a woman to look after them, the solution is not to accuse him of immorality and to present a Bill of this sort, but to improve the housing conditions under which you have condemned him to live.
When we come to the question of incurable insanity we have to admit that, generally speaking, nobody can lay the blame for insanity on the victim of insanity. It is a mental disease and is treated as such. There are other diseases of a very terrible character. Here we have a mental disease, and what do the promoters of the Bill do? In the first Clause they set down grounds for divorce-desertion, cowardly desertion, brutality, bestiality, and along with cowardice, brutality and bestiality they class one particular disease, insanity. Can hon. Members imagine anyone classing cowardice, brutality and bestiality with rheumatoid arthritis? We have been told of men or women who have suffered from mental disease. I have known cases of rheumatoid arthritis, which has left the victim incapable of doing anything.
§ Mr. Boothby
The hon. Member sits in this House as the only representative of the Communist party, and I want to put to him this question. We have always understood that Communists take a rather special view on this particular question. Is the hon. Member now stating the official view of the Communist party of this country on this question?
I am speaking as the representative of West Fife. If the hon. Member wants to discuss with me the official policy of the Communist party on this matter I am prepared at any time to meet him. I am saying now that the manner in which this question is being discussed is utterly indefensible. You cannot take any form of disease in association with cowardice, brutality and bestiality. Take paralysis. I know of men, and also women, who are suffering 1242 from complete paralysis. Would you associate paralysis with cowardice, brutality and bestiality in any Bill? Surely hon. Members can see that the category is entirely different; you cannot possibly associate them in the same Bill. Even foolish Tories opposite should understand that disease is entirely different from these other causes which are allowed for divorce under the Bill. You can have a Bill providing for divorce on the grounds of desertion, brutality and bestiality, but when it comes to a particular form of disease then it is something separate.
I put this point of view upstairs in Committee and said that instead of a Bill of this character there should be a separate Bill dealing with illness, either mental or physical. just before we entered on the consideration of this Bill I was talking outside about the effect it would have on a woman with two or three children whom she loved, who had a nice home which she loved, and who was devoted to her husband. Something goes wrong, because a woman can be the subject of very serious pains and agonies. It is said that a woman can suffer more pain in one day than a man can in his lifetime. As a result of the pains and agonies which a mother has to go through, her balance for a bit is upset and she goes into an institution. Month after month passes. On occasions she comes round when she is quite clear in her mind, and the thought is always there—what is going to happen? As a consequence of the continual worry, she is actually driven crazy. This is not a matter that can be dealt with in a Bill of this sort. As I said in the Standing Committee, and as I repeated at the beginning of my speech, I am not against a man or a woman getting a divorce on grounds of insanity; but proper and careful provision should be made, and the subject should be dealt with of itself. It is scandalous to present it in this particular form in this Bill.
It is quite possible that there are many men and women who would like to be relieved of the burden of a paralysed spouse, or a spouse who was so affected by a certain disease as to threaten with ruin the whole life of, for instance, a young wife of 25, not because the husband was insane, but because of his being completely crippled and useless for life because of some other disease. If one 1243 disease is to be dealt with, diseases as a whole should be taken in a special category, quite apart from the other category in this Bill. It is of no use hon. Members saying that they want to legislate and that they have to weigh the balance between one and the other. Surely, they are not going to weigh the balance between someone who has been unfortunate enough to have a mental collapse and someone who has committed bestiality —surely, they do not consider those two things as being in the same category—or someone who has suffered a nervous breakdown, it may be through devotion to housewifery duties, and someone who has committed all kinds of brutalities.
If hon. Members are going to weigh the balance, let them make the categories clear and easily understandable. Desertion, brutality and bestiality, as grounds for divorce, should be treated in one Bill or section of a Bill. Then, in another section or in a separate Bill—and I would say a separate Bill—various diseases, mental and physical, should be dealt with in a clear and careful manner, and dealt with in such a way that in no circumstances is one particular disease singled out, with the result that worry, as a consequence of that selection, may so affect the patient as to damn him (or her) for all time. I maintain that this Amendment should be supported. The Government should then take the responsibility for setting up a Committee, if necessary, in order to consider how this matter should be dealt with effectively, and how there could be set up the organisation or responsible authority to make a decision affecting the very small, the almost infinitesimal, number of cases that would be concerned in the question of divorce on grounds of insanity or other forms of disease.
§ 10.29 p.m.
§ The Lord Advocate (Mr. T. M. Cooper)
I wish to indicate briefly the position of the Government, and to deal with one or two isolated topics which have emerged in the course of the Debate. The Amendment before the House raises a question of social principle upon which the Government have taken no decision. The House will be asked, irrespective of party, to arrive at a conclusion upon that topic without any pressure or any suggestion of any kind. I might explain that 1244 as in the Committee upstairs, I am here to give such assistance as I can from a legal standpoint to ensure that if this Bill reaches the Statute Book, it will do so in a workable form, and I have no desire to give any suggestion or lead in regard to any decision which the House may desire to reach on the question of principle.
§ The Lord Advocate
I am afraid that I cannot separate my personality from my official duty on this occasion to state the law.
§ The Lord Advocate
I have no hesitation in assuring the hon. Member in the same sense as the junior Member for Dundee (Mr. Foot) did. That possibility is not open. A divorce decree cannot be rescinded on such a ground. Once a divorce is granted, the matter is finished.
§ The Lord Advocate
There are two points to which I wish to refer briefly. The senior Member for Dundee (Miss Horsbrugh) mentioned the number of married persons who have been confined in asylums for five years or more and the number who recover after five years' confinement. When the Bill was in Committee great interest was expressed on all sides in these figures and as it was I who was able to obtain the figures for the Committee, may I take this opportunity of repeating them to the House in a very brief form? The figures which I was able to get, show that at any given time, on an average, there are confined in asylums in Scotland 2,400 or 2,500 married persons who have been so confined for at least five years I give round figures because the number varies from year to year. Of that number, approximately 27 recover after five years, but it is necessary to analyse that figure of 27, having regard to the marital conditions 1245 and ages of the persons who recover. The number is then reduced to about 22 whose husbands or wives are still alive. If we examine the ages we find that something like 13 are over 50 and six are over 60, so that whatever surmises may be made as to the probabilities or otherwise of persons desiring divorce after a certain age, this, at least, is clear and it is an objective fact which I put before hon. Members, leaving them to draw their own deductions.
There are, on one side of the picture, 2,500 persons whose partners have been confined in asylums for five years or more. On the other hand the average number of persons to recover after five years' confinement is of the order of a dozen or so. The ratio is about 12 or 15 to 2,500. That is a fact which the House will bear in mind. The only other fact on which I venture to touch as a legal matter is the interesting point brought out by the junior Member for Dundee with regard to the somewhat anomalous position, from a lawyer's point of view, which would arise if insanity were a ground of divorce in England and not a ground of divorce in Scotland. The result, whether we like it or not, would be that there would not only be one law for the rich and one for the poor in that respect, but one law for the man and another for the woman. I have endeavoured, without, I hope, indicating my own view, to place before the House the legal aspect of the matter, and I leave it now to the decision of the House.
§ 10.35 p.m.
§ Mr. Mathers
The Lord Advocate has spoken officially. Although I stand at the opposite Box, I do not speak officially, but I speak here to-night for myself, and, as I understand it, all hon. Members in the House are free to-night to take the decision that their conscience entitles them to take. I want to observe, arising out of what the Lord Advocate has said, that I think it is a pity, when we are dealing with a great social subject like this, that these two Bills which have been before this House recently, the English Bill and this Bill, should have been private Members' Bills and only looked at, considered, and to some extent licked into shape by the Government after they had been before this House. I do not think that the Engilsh Bill was free from flaws, although I think in certain respects 1246 it is better than the Bill which we are now discussing, especially in relation to this particular Amendment. On the general issue, I oppose the idea of divorce for illness, although it is mental illness, on the same ground as, I think, anyone would oppose release from the marriage bond because of physical illness, although, as the hon. Member for West Fife (Mr. Gallacher) has stressed so strongly, there must be, and are, occasions when physical conditions from which one spouse is suffering just as definitely render that spouse incapable of carrying out marital responsibilities as any mental condition and the placing of the individual in a mental institution
I now come to this Amendment, and my reason, within the ambit of this Bill, for opposing the inclusion in it of a description such as "incurable insanity" is that I object to its being stated in such a bald way without any qualification or indication at this particular point in the Bill of what does actually constitute "incurable insanity." I have in mind also the fact that when we come to the definition Clause, defining the words "incurable insanity," it is something that is left to a presumption, and "incurable insanity" is presumed, under the terms of this Bill, if one of the partners to the marriage has been confined in a mental institution for a period of upwards of five years. There are other considerations placing the responsibility for defence from the charge of incurable insanity upon someone acting for the person declared to be insane, and I think that is putting the onus on the wrong person and dealing with the matter in the wrong way. From that point of view the English Bill is on better lines, and I hope the House will see the desirability of giving effect to the Amendment.
I want to deal with the figures which the Lord Advocate has given as I understand he gave them to the Committee when it was impossible for me to be present. He mentioned the figure 22 and by various means he brought it down to 13 per annum. I want to point out—and this argument might appeal to my hon. Friend the Member for Coatbridge (Mr. Barr) that either of those numbers would have saved from destruction the cities of Sodom and Gomorrah. I am anxious to save that 22 or the 13, whatever the number is, from the terrible position in which they will be 1247 placed if we leave the Bill as it is, and I hope there will be such an element of pity and such a desire to do the right thing by those who would be injured that the House will support the Amendment.
§ 10.41 p.m.
§ Mr. Buchanan
The hon. Member for West Fife (Mr. Gallacher) said, in effect, that he was not against insanity being a ground of divorce, but that he was going to vote against the Amendment because there should be a separate Bill to deal with the question. My knowledge of Parliament tells me that if you want to do a thing you should do it when the opportunity occurs, and that if it is not done then it is never done at all. The hon. Member must either be against insanity being a ground of divorce, or for it, and he cannot shove off a decision in a cowardly fashion by saying that it should be dealt with in some other kind of Bill. If we were discussing the Second Reading of the Bill I doubt whether I should vote for it, but we are not discussing the Second Reading, nor are we discussing the question of five years or seven years. We are discussing the question of incurable insanity. The hon. Member for Dumbarton Burghs (Mr. Kirkwood) said that even if the period were 30 years it should not be a ground of divorce. Imagine the case of a man whose wife is in an asylum and he is living in a working-class house. We might say that he ought to have a good house, but the Under-Secretary for Scotland practically stated the other day that even with the best town council in the world Glasgow's housing condition would not be altered for at least 20 or 30 years. Suppose a man is left with children and he lives in a single end or a two-roomed house. He has to go to work and he has to have a woman in. If she is a single woman she will sooner or later, by the force of a hundred circumstances, be almost compelled to live with the man.
§ Mr. Gallacher
Is the hon. Member aware that by doing that the man would make it impossible for himself to get a divorce?
§ Mr. Buchanan
That is not the case, and if the hon. Member would apply a little intelligence to the point he would see so at once. That has nothing to do with my argument. I was dealing with 1248 the case of a man left with two bairns of four and five and living in a kitchen. Let me say, first of all, that consideration for the children comes before consideration for the woman or the man, and the first thing the husband does is to look round for help from the brother of his wife, or his own brother, or his own sister. If he is lucky then he has got a solution of his difficulties. Otherwise, he has no solution to his problem, because his children have to be fed, clothed and reared. He has to get in a woman to look after them. They are living in a room and kitchen. Gossip will marry them; gossip will scandalise them. [Interruption.] Suppose the wife is divorced and she afterwards comes out of the asylum. She can get no pension, the woman who cohabits can get no pension, nor can the children get any pension. They are permanently left out.
I would point out that this Bill deals with other things than incurable insanity, and I am surprised that the hon. Member for Dundee (Miss Horsbrugh) should take up such a stand on that matter. There is the power to grant divorce for desertion after three years. That is a far greater power. To prove desertion it is only necessary for the wife to go into court and prove that for three years the husband has refused to live with her. It is fifty times more difficult to prove insanity. In the first place, you have to get certificates from doctors before the wife can be put into the asylum. Then, every six months, the Board of Control re-examine the case; and at the end of the allotted period before divorce can be claimed the board have to be satisfied about the incurable insanity of the wife. Desertion is the simplest of things to prove. Further, divorce can be claimed for cruelty. Cruelty does not necessarily mean that men are bad. I do not believe that one husband in 20 or one in 1,000 is deliberately cruel to his wife. The cruelty arises, generally speaking, through over-indulgence in alcohol. However, if the wife can prove cruelty against her husband she can get a divorce, although it is known that in far less than five years—in 12 months even—a man can change from a drunken sot into a quite respectable citizen. All the same he may be divorced—although cruelty can be cured in far more cases than insanity.
An insanity Clause has been put into the English Bill. One of the things 1249 which has caused me most distress is this cohabitation, this bringing up of children in what, as the right hon. Member for West Stirling (Mr. Johnston) says, are looked upon by the great mass of the people as immoral and sinful surroundings. All you are doing is forcing decent people to cohabit, and forcing children to become illegitimate. An illegitimate child in Scotland can become legitimate in every case but this. Even if the woman dies, the child cannot become legitimate. For the sake of the children, who are terribly unjustly dealt with, I very hesitatingly came into the Committee against the Bill. Having regard to the discussion and to the great mass of facts, I shall certainly vote for the Bill as it stands.
§ 10.53 p.m.
§ Mr. Logan
Up to now only Scottish Members have taken part in the discussion, but it is an important Debate on a matter of principle and I cannot allow the occasion to go by without expressing my opinion. What we are asked to do is to insert the words, "is incurably insane," but no one has been able to define "incurably insane." We are reminded that there is a difference between the English and the Scottish law. A fortnight age two young couples wished for a divorce. One was supposed to be insane and the other to be sane. The young man was 85 years of age and the young woman, who was insane, was 84. Under the English law divorce took place and in a week's time there was a marriage and those two young people are joined together in holy wedlock. Now we have the sentiment expressed—if I were outside I should call it by some other phrase, but I have to use Parliamentary language and be polite.
We are told about the poor young wife who goes into the mental home and leaves a small family, and about the poor loving husband who, I believe, did join in a sacrament that united them both together, and not an ordinary contract by a blacksmith or a boilermaker, or something of that kind. He agreed that they should be joined together. If we believe in marriage we must believe that they were joined in holy wedlock and assumed all the responsibilities of married life. There are four or five children, and because his true and faithful spouse breaks down and goes into a mental home he, poor soul, 1250 wants her to be regarded as incurably insane and he wants the right to take proceedings for divorce. I asked whether it would be ground for divorce if she were considered incurably insane and the Lord Advocate answered, "Yes."
When I asked, suppose this woman came out cured and came home to her lovely little bairns and to her devoted husband, and was most anxious to see that affection were given to the children, and that this happened perhaps one, two or four months after the other spouse had married, I was informed that the marmiage of four months' duration could not be annulled and that the poor faithful wife who had broken down with the stress of family life would have to go away because the lady-love had deposed the mother. The father could keep to himself his new wife and there could be no going back to the courts, since rescission could not take place.
I have heard what was said about the wife who had a practically insane mind; I am speaking of Catherine of Aragon. I have heard a philosophy that I never thought would be expressed in the House of Commons in regard to the demand for divorce. I suppose it is no use going back to the dark ages, to the time when a sacrament of marriage was supposed to be binding on men and women. According to the hon. Member for Shettleston (Mr. McGovern) we are living in a more enlightened age in which modern thought and progression advocate that the demand for divorce ought to be agreed to. Every one of these accommodation schemes that we bring into force shows our public assistance committees that these kinds of arrangement create the mental state which we are trying to avoid. If we had proper order and if the laws of this country were administered properly and we were able to define what marriage is, even though we are not able to define what incurable insanity is, we should be able to understand whether marriage is binding or not. We would be able to understand the responsibility of family life.
§ Mr. McGovern
The hon. Member mentioned me. I did not want to take him off his theme, but talking about enlightened opinion I said that we were living in an age when we should take stock of the advancement and enlightenment 1251 outside, and that we had to represent that opinion and not minorities and sections that tried to impose their will upon the majority. In relation to marriage, I said what is a principle to me; I would not keep two people tied in marriage who had no affection for one another, because that would be prostitution.
§ Mr. Logan
This is different from keeping two people living together as man and wife. If the easy arrangement which the hon. Member would bring into the married life were acted upon, I am afraid that every week-end, whether in England or in Scotland, most of them would be leaving home. Then there is the question of the issue of the marriage. I do not know that Members of this House can assume the responsibility of declaring that, where there is a family, the House has any right to decide that the bond of marriage shall be broken because illness comes into the family. One hon. Member spoke about diseases which may result in paralysis. You do not say that they have to go. Is there any hon. Member in this House who, if they had a boy or girl at home who was in a state in which they would be of no use to anybody living, but who had life in them, that would not give of his best to one that was broken in his own home? And when it comes to the question of the partnership in life, which is supposed to be binding and on which the nation of Scotland takes its stand, the sanctity of the home has to be protected, because without purity of home life there can be no England or Scotland either. In my humble opinion, this is giving to those who want licence the opportunity to avoid the responsibility. No honourable man or woman, when the partner in life breaks down, will take the risk, during the lifetime of that partner, of taking another, when it is possible that the wife or husband who has broken down may come back to the home. While there is life, and the person has been faithful, the loyalty of the man or woman to a faithful spouse ought to hold until death.
§ 11.3 p.m.
§ Mr. McLean Watson
I do not want to give a silent vote on this Amendment, but I shall not detain the House for many minutes. This matter was very fully 1252 discussed in the Scottish Standing Committee, and that Committee dealt with the Amendment in a very decisive manner. I do not know what the House may decide with regard to it, but I certainly shall not support the Amendment. I voted against it in the Committee, and nothing that has been said here this evening has changed the opinion I formed while the matter was being discussed then. I listened with very great interest to the senior Member for Dundee (Miss Horsbrugh), both to-night and in the Committee. The hon. Lady made a very eloquent appeal to the Committee and to the House to support the Amendment, but her eloquence failed to convince the Committee that it was advisable to omit this particular provision from the Measure. I am keeping my hands free so far as subsequent Amendments are concerned, but, so far as this Amendment is concerned, I agree with the general principle that insanity should be a ground for divorce. I hope that hon. Members who have not the same interest as Scottish Members in this Measure will note the point made by the Lord Advocate, who drew attention to the fact that in the English Measure provision was made for divorce on the grounds of insanity, and that it will be somewhat anomalous if there is not some provision of the same sort for Scotland. On the grounds of uniformity, we are entitled to ask hon. Members who supported that provision in the English Measure to support it for Scotland.
§ Captain Sir Derrick Gunston
We never divided on that in the House of Commons. We divided on the period—five years or three years, or whatever it was.
§ Mr. Watson
The Scottish Grand Committee divided on this principle. The point I am making is that in the English Measure there is provision for divorce on the ground of insanity; and we who are opposed to the Amendment take the view that the same provision should be in the Scottish Measure. I believe that divorce should be granted on the ground of insanity, and it is in support of that principle that I intend to vote to-night.
§ 11.3 p.m.
§ Mr. James Brown rose——1253
I am not going to give a silent vote, either. I am in favour of the Amendment, and why I should not say so, just as other hon. Members say they are against it, I do not know. I support the Amendment on religious grounds. To me it is a most amazing spectacle to see this House taking this thing as calmly as they do to-night. The most disgusting business of all is the argument that has been made against the Amendment that when there are two children in the house
|Division 297.]||AYES.||[11.10 p.m.|
|Adams, S.V. T. (Leeds, W.)||Fyfe, D. P. M.||Morrison, Rt. Hon. H. (Hackney, S.)|
|Alexender, Rt. Hon. A. V. (H'lsbr.)||Gardner, B. W.||Nathan, Colonel H. L.|
|Allen, Col. J. Sandeman (B'knhead)||Garro Jones, G. M.||Naylor, T. E.|
|Anderson, Sir A. Garrett (C. of Ldn.)||Gibson R. (Greenook)||Noel-Baker, P. J.|
|Anstrtuher-Gnay, W. J.||Greene, W. P. C. (Worcester)||O'Connor, Sir Terence J.|
|Atholl, Duchess of||Gridley, Sir A. B.||Oliver, G. H.|
|Barclay-Harvey, Sir C. M.||Griffith, F. Kingsley (M'ddl'sbro,W.)||Paling, W.|
|Barr, J.||Griffiths. J. (Llanelly)||Parker, J.|
|Batey, J.||Guest, Dr. L. H. (Islington, N.)||Pearson, A.|
|Beamish, Rear-Admiral T. P. H.||Guest, Maj. Hon. O. (C'mh'rw'll, N.W.)||Petherick, M.|
|Benson, G.||Hall, G. H. (Aberdare)||Pethick-Lawrenee, Rt. Hon. F. W.|
|Boothby, R. J. G.||Hambro, A. V.||Price, M. P.|
|Bossom, A. C.||Hannah, I. C.||Rathbone, J. R. (Bodmln)|
|Broad, F. A.||Harbord, A.||Rayner, Major R. H.|
|Bromfield, W.||Harris, Sir P. A.||Reed, A. C. (Exeter)|
|Brown, C. (Mansfield)||Hayday, A.||Reid, W. Allan (Derby)|
|Buchanan, G.||Henderson, J. (Ardwick)||Ridley, G.|
|Bull, B. B.||Henderson, T. (Tradeston)||Robinson, J. R. (Blackpool)|
|Burghley, Lord||Heneage, Lieut.-Colonel A. P.||Rowlands, G.|
|Burke, W. A.||Higgs, W. F.||Royds, Admiral Sir P. M. R.|
|Cazalet, Thelma (Islington, E.)||Hills, A. (Pontefract)||Russell, Sir Alexender|
|Chapman, A. (Rutherglen)||Hollins, A.||Salt, E. W.|
|Chater, D.||Holmes, J. S.||Salter, Dr. A. (Bermondsey)|
|Cobb, Captain E. C. (Preston)||Hudson, Capt. A. U. M. (Hack., N.)||Samuel, M. R. A.|
|Colman, N. C. D.||Hunter, T.||Soott, Lord William|
|Colville, Rt. Hon. John||Jagger, J.||Selley, H. R.|
|Cook, Sir T. R. A. M. (Norfolk, N.)||Johnston, Rt. Hon. T.||Smith, E. (Stoke)|
|Cooke, J. D. (Hammersmith, S.)||Jones, A. C. (Shipley)||Sorensen, R. W.|
|Cooper, Rt. Hn. T. M. (E'nburgh, W.)||Jones, Sir H. Haydn (Merioneth)||Spens, W. P|
|Courthope, Col. Rt. Hon. Sir G. L.||Jones, L. (Swansea W.)||Stewart, J. Henderson (Fife, E.)|
|Crooke, Sir J. Smedley||Kerr, Colonel C. I. (Montrose)||Storey, S.|
|Culverwell, C. T.||Lamb, Sir J. Q.||Strauss, E. A. (Southwark, N.)|
|Daggar, G.||Law, R. K. (Hull, S.W.)||Strauss, H. G. (Norwich)|
|Dalton, H.||Lawsan, J. J.||Sueter, Rear-Admiral Sir M. F.|
|Davidson, J. J. (Maryhill)||Leach, W.||Tasker, Sir R. I.|
|Davies, C. (Montgomery)||Lee, F.||Tate, Mavis C.|
|Dobbie, W.||Leech, Sir J. W.||Taylor, C. S. (Eastbourne)|
|Doland, G. F.||Liddall, W. S.||Taylor, Vice-Adm. E. A. (Padd., S.)|
|Donner, P. W.||Mabane, W. (Huddersfield)||Taylor, R. J. (Morpeth)|
|Duckworth, W. R. (Moss Side)||MacAndrew, Colonel Sir C. G.||Thurtle, E.|
|Duncan, J. A. L.||MacDonald, Rt. Hon. M. (Ross)||Walker, J.|
|Dunn, E. (Rother Valley)||Macdonald, Capt. P. (Isle of Wight)||Walker-Smith, Sir J.|
|Ede, J. C.||McEntee, V. La T.||Ward, Irene M. B. (Wallsend)|
|Edwards, A. (Middlesbrough E.)||McGovern, J.||Watson, W. McL.|
|Edwards, Sir C. (Bedwellty)||McKle, J. H.||Watt, Major G. S. Harvie|
|Elliot, Rt. Hon. W. E.||Maenamara, Major J. R. J.||Wells, Sir Sydney|
|Emery, J. F.||Makins, Brigadier-General Sir Ernest||Wilson, Lt.-Col. Sir A. T. (Hitchin)|
|Entwistle, Sir C. F.||Manningham-Buller, Sir M.||Windsor, W. (Hull, C.)|
|Evans, D. O. (Cardigan)||Margesson, Capt. Rt. Hon. H. D. R.||Woods, G. S. (Finsbury)|
|Everard, W. L.||Marsden, Commander A.||Young, Sir R. (Newton)|
|Fildes, Sir H.||Marshall, F.|
|Findlay, Sir E.||Mayhew, Lt.-Col. J.||TELLERS FOR THE AYES.—|
|Fletcher, Lt.-Comdr. R. T. H.||Moore-Brabazon, Lt.-Col. J. T. C.||Mr. Erskine-Hill and Mr.|
|Foot, D. M.||Morrison, G. A. (Scottish Unlv's.)||Graham Kerr.|
|Agnew, Lieut.-Comdr. P. G.||Cartland, J. R. H.||Hall, J. H. (Whitechapel)|
|Aske, Sir R. W.||Crowder, J. F. E.||Hannon, Sir P. J. H.|
|Banfield, J. W.||Gallacher, W.||Hardie, Agnes|
|Brawn, Rt. Hon. J. (S. Ayrshire)||Grant-Ferris, R.||Hutchinson, G. C.|
|Browne, A. C. (Belfast, W.)||Gunston, Capt. Sir D. W.||Kelly, W. T.|
§ and the accommodation is limited and a woman comes in, immorality takes place. I do not want to keep the House at all, but I thought it right that I should also say that I am not giving a silent vote, and that I am in favour of the Amendment.
§ Question put, "That the words proposed to be left out stand part of the Bill."
§ The House divided: Ayes, 158; Noes, 31.
|Logan, D. G.||Poole, C. C.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|MacDonald, Sir Murdoch (Inverness)||Procter, Major H. A.||Westwood, J.|
|McEwen, Capt. J. H. F.||Rickards, G. W. (Skipton)|
|Magnay, T.||Ritson, J.||TELLERS FOR THE NOES.|
|Mathers, G.||Shepperson, Sir E. W.||Mr. Kirkwood and Miss|
|Morris-Jones, Sir Henry||Tinker, J. J.||Horsbrugh.|
|Parkinson, J. A.||Tomlinson, G.|
§ 11.19 p.m.
§ Captain McEwen
I beg to move, in page line 15, after "insane," to insert:and has been continuously under care and treatment as an insane person for a period of at least five years immediately preceding the action for divorce.I am moving the Amendment in a form slightly different from that on the Order Paper, so that it may be more intelligible. One object of the Amendment is to provide one of the safeguards which some of us think are strangely absent from the Bill as it stands. This Amendment is on the exact lines of the words which appear in the English Act. In Section 2 (10) these words appear:Is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition.We can see no reason why these words are omitted from the present Bill. To my mind, this is a very weak point in the Bill, and it is with the object of strengthening it that the Amendment is moved.
§ 11.21 p.m.
§ Mr. Erskine Hill
In the course of a very long discussion in the Committee stage every effort was made by the promoters of the Bill to safeguard what we thought were the interests of the insane person, but we could not accept an Amendment of this sort. The reason why we ask the House to be consistent and retain the Bill in its present form is because we do not think it would be workable in any other form. It has been said that the provision is working in England. On that I should like to say this. I have made careful inquiries, and find that there have been no such cases dealt with in the English courts, and I think it is early yet to speak of what is the situation in England. I can speak with greater knowledge of the Scottish courts, and I can assure hon. Members that if English courts decide in one way it does not follow that Scottish courts will do the same. Even
§ where the laws are supposed to be the same the Lord Advocate has shared with me the experience of seeing the theories of one country being set aside by the supreme court of the House of Lords, and a direct conflict between English courts and Scottish courts. I feel sure that hon. Members will share the view that this provision, properly safeguarded, will make the Bill workable in Scotland and will make it apply to the poorer classes of the community equally with the rich. I will explain what I mean by that. As a result of representations made to us while the Bill was before the Committee, we decided that it was better to safeguard the position of the insane person by inserting a Clause making it incumbent upon the court in every case to provide what we call a curator ad litem, who is an officer appointed by the court, to look after the interests of the insane person.
§ Lieut.-Commander Agnew
Will my hon. and learned Friend make clear who will pay for that officer? Will the poor defendant have to pay?
§ Mr. Erskine Hill
No, the court will make rules of court which will cover that, and I think the Lord Advocate will bear me out when I say that there is no question of the poor person having to pay. Further, with the consent of the Board of Control in Scotland, it was made incumment upon the Board of Control to give to the court, on being required by the court, a full account of the condition of the insane person. Those steps were taken, and they met with the approval of some of those who had objected. They were put down in the form of an Amendment, in which my hon. and gallant Friend the Member for Orkney and Shetland (Major Neven-Spence), who had been very strongly against the Bill as it stood, was associated, and I think several other hon. Members who had taken similar views at an earlier stage were fully satisfied by the Amendment. Anything of a reasonable sort in which I could concur, I have been prepared to do, but I put it to the House that I think this will make the Bill workable in Scotland, and that if we were to agree to the 1257 Amendment, there would be a very considerable danger that, whatever the English courts are doing or may do, it would make the Bill inoperative in Scotland. I appeal to the House, which is agreed on principle to the insertion of incurable lunacy as a cause for divorce, to enable us to make that principle workable.
§ 11.27 p.m.
§ Mr. Spens
I am very sorry that I have to disagree with my hon. and learned Friend the Member for North Edinburgh (Mr. Erskine Hill). I listened with some interest to the end of the Debate on the last Amendment, and I regret very much that, during the passage of the Bill last year, my fellow countrymen did not come to the assistance of those of us who tried to resist the introduction of insanity as a ground for divorce. That ground was accepted after a great deal of discussion last year, but it was accepted subject to the proviso that there was always to be a period of five years before action was to be taken in order to obtain a divorce on that ground. I listened with great care to the remarks of my hon. and learned Friend, but I cannot see any ground for suggesting that in my native land the Bill will be more unworkable if the House takes exactly the same line as it took in connection with the English Bill last year, when it insisted that there should be a period of five years before a petition was filed for divorce on this ground.
I agree that it is impossible to obtain absolute uniformity of laws in England and in Scotland, but if the two countries start with Bills in the same terms, there is more hope of obtaining uniformity of laws than there is if they start with Bills in different terms. Therefore, I cannot see why what was inserted in the English Bill last year should not be put in the Scottish Bill this year. I would add that, with regard to the special Clause which is contained later in the Bill, I am bound to say that it does not seem to me that the interests of the lunatic's spouse will be better looked after under that procedure than in the English courts by the officers who have regard to the interests of the lunatic. Subject to that, I cannot see why the courts in both countries should not start on exactly the same lines, and I hope the House will insist that there shall be the period of five years 1258 before a petition of divorce can be filed on this ground.
§ 11.30 p.m.
§ The Lord Advocate
The subject raised by this Amendment is one on which I am bound to intervene, in the exercise of my duty to endeavour to see that this Bill reaches the Statute Book in a workable form. The House has just decided by a very large majority to accept the principle that incurable insanity shall be a ground for divorce in Scotland, but it does not necessarily follow that because England decided to achieve that end by one particular method, Scotland must, forthwith, adopt an identical method. This Bill has been framed with the deliberate object of securing a more effective working of that principle that incurable insanity is a ground for divorce than has been achieved in the Matrimonial Causes Act. According to my information, experience in England, although it has not yet gone very far, has at least suggested that the terms of the Matrimonial Causes Act are, in this respect, capable of improvement. Difficulties have arisen, and I agree with my hon. and learned Friend the Member for North Edinburgh (Mr. Erskine Hill), that difficulties will unquestionably arise in Scotland if this Amendment is carried.
I wish to make it plain that it is of set purpose and with the object of giving effect to the principle to which the House has just agreed, that it is proposed to use here the words "incurably insane" and then proceed by a subsequent Clause to define what shall and shall not be deemed by the court to be "incurable insanity." If this Amendment be carried, the Courts in Scotland, beyond a doubt, will draw this conclusion—that the mere fact that a person has been continuously confined in an institution, as an insane person, for five years is not enough to establish incurable insanity. [HON. MEMBERS: "Hear hear."] I observe from the applause of the hon. Lady the senior Member for Dundee (Miss Horsbrugh), and those besides her, that they are evidently supporting the Amendment in the belief that, by so doing, they will achieve a reversal of the decision which the House has just given. [HON. MEMBERS: "No."] The purpose of the Bill being to make this principle work, I suggest that that is a very opposite result at 1259 which to aim. The effect of the Amendment would be to require the court first to be satisfied of the five years continuous care and treatment, as an insane person, in an institution and then to embark on a second inquiry, namely, whether the person who has been so confined is or is not incurably insane. At that stage will arise that same conflict of medical and expert opinion to which reference has been made—and which, I understand has given rise and will continue to give rise to difficulties and embarrassment in England. I cannot, without transgressing your Rulings, Mr. Speaker, develop the alternatives which the Bill contains, but I submit that the acceptance of the Amendment would go far to defeat the decision which the House has taken. I urge the House strongly, in the interests of the efficacy of this Measure, to reject this Amendment and to allow the scheme of the Bill, designed to carry out the principle which this House has already accepted, to stand in the form in which it is at present.
§ Mr. Mathers
Is the right hon. and learned Gentleman saying that five years in a mental institution is to presuppose incurable insanity, without any other test?
§ The Lord Advocate
The answer is "No," as a perusal of Clause 6 will indicate, but what I am saying is that the converse proposition would inevitably follow from the acceptance of this Amendment namely, that five years' continuous detention in an asylum or other institution would not amount to incurable insanity but that over and above that, independent investigation, with expert witnesses, would have to be embarked upon.
§ Mr. Mathers
That is the point that I am trying to make. The second case that the Lord Advocate mentions is not certain to be carried through under the terms of this Bill?
§ 11.37 p.m.
§ Miss Horsbrugh
I am a little surprised to hear the speech of the Lord Advocate, because I thought, when we were discussing the last Amendment, that one of the strongest points, which persuaded many hon. Members to vote as they did in favour of incurable insanity being put 1260 into the Bill as a ground for divorce was the great inconvenience and difficulties that would arise if we had different laws for England and Scotland in this connection. On this occasion my hon. Friend who shares with me the representation of Dundee (Mr. Foot) almost persuaded me that he was right and I was wrong, because he sketched out to us very clearly what the procedure in England was, and he told us of the great care that was taken and how carefully the whole thing was gone into, and I am certain that he persuaded many hon. Members here that it would be a good plan for Scotland to have the same thing. He suggested, and the Lord Advocate also suggested, the difficulties of having two laws, but my hon. Friend the Member for Dundee also pointed out that we need not be nervous of putting in incurable insanity, because the procedure in England was so careful and that therefore the alarms that many of us had felt and a great deal of the anxiety that had been expressed could be allayed because of that procedure.
I want to say to the Lord Advocate, who thought that if I supported the Amendment it would be because it would prevent divorce on the ground of incurable insanity taking place, that I should have preferred not to have that in, but we have decided now that incurable insanity is to be one of the grounds for divorce, and I only ask, what hon. Members asked on the last Amendment, that we should make it as sure as possible and that we should have safeguards. Many hon. Members said on the last Amendment that although they would vote for it and thought it right that this should be a ground for divorce, they also felt that there ought to be proper safeguards. I know that we cannot now discuss the procedure on Clause 6, but this is the moment when we should take our stand, because now, on this Amendment, we can have the safeguards that were put into the English Bill last year. On Clause 6 difficulties will arise. As we have decided that incurable insanity is to be a cause of divorce, I would urge the House to provide the same safeguards as those provided in England in order to see that as far as possible mistakes should not occur, and that justice and the chance of the right defence should be given to that most helpless person, the person who has been certified as insane.
§ 11.41 p.m.
I have not intervened before in the debate to-night, and I do so now in order to make an appeal to the Lord Advocate and the hon. and learned Member for North Edinburgh (Mr. Erskine Hill). I would ask them to consider this question again. I supported the inclusion of the incurable insanity provision, because I believed it was necessary in a Bill of this kind, but I would ask that every care and protection should be given because of the dreadful consequences of even one or two mistakes. Considerable feeling has been shown in the debate on this question, not because hon. Members were antagonistic to one another, but because they feared that there was a risk of mistakes being made, even in isolated cases, which would ruin and blight the lives of the victims. It is the duty of the House to protect exceptional cases. I do not believe any hon. Member thinks that the Clause will be unworkable if these words are inserted. I believe that they will make the Bill more palatable to many people who have different opinions on this question because they will ease their fears with regard to possible injustices. This Bill remedies a state of affairs which has already been remedied in England, and I would appeal to the Lord Advocate not to be afraid once in a while to do as England has done. After careful consideration the House has decided this question as it affects England, and if it has decided that five years is good enough for England, surely the Lord Advocate cannot come forward and say that the same provision would make the Scottish Bill unworkable. We all know that insanity is a subject on which medical opinion differs, and in view of this and of the great importance of the cases to the individuals concerned, surely it is not too much to ask for a five-year period in order that all concerned may be absolutely certain of the incurable state of the insane person. Medical science is making great strides. Insanity is only spoken of as incurable because medical science has not yet been able to cure it, but incurable complaints are continually being brought into the category of curable, and in a few years' time science may be able to effect cures in what are to-day spoken of as cases of incurable insanity. Because of that possibility and to allay fears I would 1262 appeal to those responsible for the Bill to accept the Amendment, so that we may be sure that every care will be taken to see that no injustice is done.
§ 11.47 p.m.
§ Mr. Speaker
There is a strict rule that we should refer to only one Amendment at a time, but these Amendments are so intermixed that it would probably be for the convenience of the House that they should be discussed together.
§ Mr. T. Johnston
I suggest that it would be desirable to consider not only Clause 6 but Clause 3, because Clause 6 cannot function properly without Clause 3.
§ Mr. Mathers
I hesitate to appear to be at variance with my right hon. Friend the Member for West Stirling (Mr. Johnston) but when the Debate started on the first Amendment your Deputy in the Chair, Mr. Speaker, was asked whether there could be one discussion referring to a number of Amendments. Objection was taken to that course, and we have been adhering strictly to the rule of dealing with each Amendment as it stands, and certain speeches have been made on the Amendment before us under those limiting conditions.
§ Mr. Speaker
I think the request made to me concerned not so much the Amendments as the Clauses. Permission to refer to Clause 6 was suggested and the right hon. Member for West Stirling (Mr. Johnston) suggested Clause 3 as well. There is no Amendment to Clause 3, and if it suits the convenience of the House I see no objection when dealing with this Amendment to referring to Clauses 6 and 3.
§ Miss Horsbrugh
Before the Ruling was given I understood that we could not refer to Clause 6, and those who speak on the Amendment have to speak in restricted terms.
Did not the Lord Advocate say he would like to refer to Clause 6 but he could not do so?
§ Mr. Foot
We are considering whether we should have the alternative contained in the English Act or that in the Bill. If we were to challenge the proposal now put before the House the other procedure proposed in Clause 6 would fall to the ground. Having listened to the Debate with very great care I think there is a very strong case to be made for the Amendment. I speak as a supporter of the Bill and I spoke very strongly against the last Amendment but, having listened to the hon. and learned Member for East Edinburgh (Mr. Erskine Hill) and the Lord Advocate, I am at a loss to understand in what difficulty the Scottish courts will find themselves in interpreting these words. If they were carried and put into the Scottish law, all that would be necessary for any petitioner who wanted to get a divorce decree on the ground of insanity would be to prove that the respondent had been continuously under care and treatment for five years immediately preceding the action. I should not have thought that was a very difficult thing to prove. You only have to call the person in whose custody the respondent has been. The other part of the requirement will be the words "incurably insane." They are already inserted in the Bill by the decision we have first taken and whatever decision we may come to on later Amendments, the Scottish courts will be under the necessity that the English courts have already been under of determining the meaning to be attached to those words.
§ Mr. Mathers
There is a definition in Clause 6 showing that five years in a mental institution constitutes presumption of "incurable insanity."
§ Mr. Foot
I do not think that is quite so. I think there is no definition in this Bill any more than there is in the English Bill. As a matter of fact, the words have been interpreted as meaning "irrecoverably insane," and that is the 1264 meaning that has been put upon them so far in the cases that have been tried. If the Amendment were carried, it would be necessary for the petitioner to prove, firstly the five years' care and treatment in the institution and, secondly, the fact that the respondent was incurably insane. I am not discussing what precise meaning the courts in Scotland will attach to those words but, if this Amendment is rejected, the alternative one has to consider is contained in Clause 6. I have consulted with the hon. and learned Member for N. Edinburgh and we are unhappy about the form of Clause 6. I do not object to the first part of Sub-section (2), which makes it necessary for the five years' care and treatment to be proved; that is what is proposed in this Amendment. But I feel a great deal of misgiving about the second part:and where such care and treatment as aforesaid is proved the defender shall, unless the contrary is shown to the satisfaction of the Court, be presumed to be incurably insane.That means that, if the judge has heard the evidence on both sides, and has heard the arguments of counsel for the petitioner and of counsel for the respondent who is instructed on behalf of the curator ad litem, and if he is then left in doubt, he has to determine that doubt in favour of the petitioner and against the respondent. That is the position which is going to be created if the House decides on the alternative contained in Clause 6.
If I am right in saying that we have to decide between the Amendment and Subsection (2) of Clause 6, it is not just a question of making some subtle distinction between English and Scottish courts; we have to decide at this stage the vital question where the onus shall lie. As I endeavoured to show on the last Amendment, I do not want to place undue impediments in the way of any petitioner who comes along and says, "My wife—or husband—is incurably insane, and I can show that that is the case." We are all agreed that it is a very serious matter to insist that the burden of proof shall be laid in each case on the person who seeks to set up incurable insanity as a ground of divorce, and for that reason I propose to support the Amendment.
§ Lieut.-Commander Agnew
My hon. and learned Friend the Member for North Edinburgh (Mr. Erskine Hill), speaking 1265 against the acceptance of this Amendment, said that it would make the Bill inoperative. He did not, however, appreciate——
§ Lieut.-Commander Agnew
I did second the Amendment, intending to ask to be allowed by the leave of the House to make a speech. I only wanted to second the Amendment then, and just jumped up for that purpose.
§ Mr. Speaker
The hon. and gallant Member, having seconded the Amendment, has exhausted his right to speak.
§ 11.59 p.m.
§ Mr. Barr
I do not desire to detain the House at any length, but I wish to appeal to the promoter of the Measure and to the Lord Advocate not to respond to what has been put before them by my hon. Friend the Member for Mary-hill (Mr. Davidson), and not to resile from the position they have taken up. I think the important thing to observe is that these very words, with but a slight transformation, are taken from Clause 6, and when an appeal is made by the senior Member for Dundee (Miss Horsbrugh) and by my hon. Friend the Member for Maryhill that the greatest care should be exercised, I would point out that not only are these words in Clause 6, and not only is there the provision in Clause 3, but you have a further provision for the exercise of greater care and far greater investigation than is possible under this Clause.
§ Miss Horsbrugh
I was speaking under difficulties and I did not make myself very clear. I mentioned the safeguards which were held to be required. If I had been allowed to mention Clause 6, I should have said that the fact that five years was mentioned in that Clause was no safeguard at all, because the safeguard is taken away by the onus being placed on the insane person of defending.
§ Mr. Barr
In reply to that observation I wish to make clear what is my view of 1266 the position. You cannot get away from it that there is a certain presumption of insanity because of the fact that the person has been under continual treatment in an institution for some five years, but the whole presumption is taken away in the second part of the Clause and you are back on equal terms. Clause 6 (2) says distinctly:—unless the contrary is shownThat allows medical opinion to come in and allows the court to be advised by medical men that this condition is curable, that the day may come when it is quite curable and that they cannot say in any case that it is incurable.
In Committee, the hon. and gallant Member for Orkney and Shetland (Major Neven-Spence) said, if I may recall it, that he would never put his hand to certify that anyone was incurably insane. That is what I was emphasising. That is possible, and there is a complete safeguard here that we may come to a point at which medical science has found a cure and is able to say that no case is incurable. That is arguable, and the whole subject is opened up. Here we have the skeleton of what we have in the full provisions of Clause 3 and more particularly in the full Clause 6. My hon. Friend argued in favour of five years; I would not like to do him the injustice of saying that he did not read the Bill, but it seemed to me that when five years was in Clause 6, there was no need to argue in favour of five years.
As the hon. Gentleman persists in referring to Clause 6, may I be permitted to point out to him that I have read the whole Bill, including Clause 6, but that, out of courtesy, and because of the time and because of the Rulings of the Chair, I refrained from mentioning that Clause. I had not the same opportunity as my hon. Friend is evidently taking advantage of.
§ Mr. Barr
It is not my habit to take advantage either of an opportunity or of a colleague. In the comment I made I used the argument that there was no need to argue for five years when it was in the Bill already, and that that five years had lapsed. I hope that my point is clear that if we adopt this Amendment we cut out some other most important safeguards that are in Clause 3.
§ Question put, "That those words be there inserted in the Bill."
|Division No. 298.]||AYES.||[12.5 a.m.|
|Adams, S. V. T. (Leeds, W.)||George, Megan Lloyd (Anglesey)||Poole, C. C.|
|Agnew, Lieut.-Comdr. P. G.||Greene, W. P. C. (Worcester)||Procter, Major H. A.|
|Atholl, Duchess of||Gridley, Sir A. B.||Reed, A. C. (Exeter)|
|Banfield, J. W.||Gunston, Capt. Sir D. W.||Ritson, J.|
|Burghley, Lord||Hall, J. H. (Whitechapel)||Royds, Admiral Sir P. M. R.|
|Burke, W. A.||Hambro, A. V.||Salt, E. W.|
|Cartland, J. R. H.||Hannon, Sir P. J. H.||Smith, E. (Stoke)|
|Cobb, Captain E. C. (Preston)||Harris, Sir P. A.||Spens. W. P.|
|Cooke, J. D. (Hammersmith, S)||Higgs, W. F.||Taylor, R. J. (Morpeth)|
|Crowder, J. F. E.||Holmes, J. S.||Tinker, J. J.|
|Daggar, G.||Kelly, W. T.||Tomlinson, G.|
|Davidson, J. J. (Maryhill)||Lamb, Sir J. Q.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Duckworth, W. R. (Moss Side)||Lawson, J. J.||Ward, Irene M. B. (Wallsend)|
|Evans, D. O. (Cardigan)||MacDonald, Sir Murdoch (Inverness)||Wells, Sir Sydney|
|Everard, W. L.||Maonamara, Major J. R. L.||Westwood, J.|
|Foot, D. M.||Manningham-Buller, Sir M.|
|Furness, S. N.||Mathers, G.||TELLERS FOR THE AYES.—|
|Gallacher, W.||Mayhew, Lt.-Col. J.||Captain McEwen and Miss|
|Alexander, Rl. Hon. A. V. (H'lsbr.)||Gibson, R. (Greenock)||Parker, J.|
|Allen, Col. J. Sandeman (B'knhead)||Griffiths, J. (Llanelly)||Petherick, M.|
|Anderson, Sir A. Garrett (C. of Ldn.)||Hall, G. H. (Aberdare)||Pethick-Lawrence, Rt. Hon. F. W.|
|Anstruther-Gray, W. J.||Hannah, I. C.||Price, M. P.|
|Barclay-Harvey, Sir C. M.||Harbord, A.||Rathbone, J. R. (Bodmin)|
|Barr, J.||Hayday, A.||Ridley, G.|
|Benson, G.||Henderson, J. (Ardwick)||Robinson, J. R. (Blackpool)|
|Boothby, R. J. G.||Henderson, T. (Tradeston)||Russell, Sir Alexander|
|Bossom, A. C.||Hills, A. (Pontefract)||Samuel, M. R. A.|
|Bromfield, W.||Hunter, T.||Scott, Lord William|
|Bull, B B.||Jagger, J.||Sorensen, R. W.|
|Cazalet, Thelma (Islington, E.)||Jenkins, A. (Pontypool)||Stewart, W. J. (H'ght'n-le-Sp'ng)|
|Chapman, A. (Rutherglen)||Johnston, Rt. Hon. T.||Strauss, H. G. (Norwich)|
|Colville, Rt. Hon. John||Kerr, Colonel C. I. (Montrose)||Tasker, Sir R. I.|
|Cooper, Rt. Hn. T. M. (E'nburgh, W.)||Leach, W.||Taylor, C. S. (Eastbourne)|
|Dalton, H.||Mabane, W. (Huddersfield)||Thurtle, E.|
|Dobbie, W.||MacDonald, Rt. Hon. M. (Ross)||Walker-Smith, Sir J.|
|Dunn, E. (Rother Valley)||McEntee, V. La T.||Watson, W. McL.|
|Ede, J. C.||McGovern, J.||Watt, Major G. S. Harvie|
|Edwards, Sir C. (Bedwellty)||McKie, J. H.||Wilson, Lt.-Col. Sir A. T. (Hitchin)|
|Elliot, Rt. Hon. W. E.||Margesson, Capt. Rt. Hon. H. D. R.||Windsor, W. (Hull, C.)|
|Entwistle, Sir C. F.||Marshall, F.||Woods, G. S. (Finsbury)|
|Fildes Sir H.||Morrison, G. A. (Scottish Univ's.)|
|Findlay, Sir E.||Noel-Baker, P. J.||TELLERS FOR THE NOES.—|
|Fletcher, Lt.-Comdr. R. T. H.||Oliver, G. H.||Mr. Erskine Hill and Mr. Graham|
|Fyfe, D. P. M.||Paling, W.||Kerr.|
§ 12.13 a.m.
§ Mr. Mathers
I beg to move, in page 1, line 22, at the end, to insert:Provided that where the ground for the action is incurable insanity the Court shall not be bound to grant a decree of divorce and may dismiss the action if in the opinion of the Court the pursuer has during the marriage been guilty of such wilful neglect or misconduct as has conduced to the insanity.As the hour is very late, and I understand that at least the spirit of this protective Amendment is to be accepted by the promoters of the Bill, there is no need to take any time at all in urging the Amendment upon the House. I believe that I require the guidance of the Lord Advocate as to the exact wording of the Amendment. I do not suffer from the disadvantage of being a lawyer, and, therefore, the wording may not quite be in keeping
§ The House divide: Ayes,51; Noes,74.
§ with legal ideas. Consequently I ask for the guidance of the Lord Advocate as to the exact framing of the Amendment, and I hope that you will be kind enough, Mr. Deputy-Speaker, to allow us, if necessary, to put the Amendment into proper form.
§ 12.14 a.m.
§ Mr. Erskine Hill
I beg to move, as an Amendment to the proposed Amendment, in line 1, to leave out "for the," and to insert "of," and in line 2, to leave out "and may dismiss the action."
I think that it may save the time of the House if I say at once that we are prepared to accept the Amendment in principle. The only suggestion I would make is that we should make it conform to what is the practice in Scotland where the court does not dismiss an action once the merits are reached but grants a decree 1269 of absolvitor. I have had the benefit of consulting my right hon. and learned Friend the Lord Advocate, so that the House might have the advantage of his opinion as well my own, and I therefore move the Amendment to the proposed Amendment. It will give the court full power to grant an appeal and meet the case which the hon. Gentleman the Member for Linlithgow (Mr. Mathers) is anxious to meet. I think the hon. Gentleman will be satisfied with the Amendment in that shape, because it gives effect to the principle to which he wishes to give effect.
§ Amendment to the proposed Amendment agreed to.
§ Proposed words, as amended, there inserted in the Bill.
§ 12.16 a.m.
§ Mr. Erskine Hill
I beg to move, after the words last inserted, to insert:(2) For the purposes of paragraph (d) of the foregoing subsection the defender's guilt of sodomy or bestiality shall be held to be proved if an extract of a conviction therefor in any part of the United Kingdom is produced, and the application of such conviction to the defender is admitted or proved.The sole object of this Amendment is to prevent the whole evidence in sodomy
|Division No. 299.]||AYES.||[12.19 a.m.|
|Adams, S. V. T. (Leeds, W.)||Greene, W. P. C. (Worcester)||Marshall, F.|
|Alexander, Rt. Hon. A. V. (H'lsbr.)||Gridley, Sir A. B.||Mathers, G.|
|Anstruther-Gray, W. J.||Griffiths, J. (Llanelly)||Mayhew, Lt.-Col. J.|
|Atholl, Duchess of||Gunston, Capt. Sir O. W.||Morrison, G. A. (Scottish Univ's.)|
|Barclay-Harvey, Sir C. M.||Hail, G. H. (Aberdare)||Nathan, Colonel H. L.|
|Benson, G.||Hambro, A. V.||Oliver, G. H.|
|Bernays, R. H.||Hannah, I. C.||Paling, W.|
|Boothby, R. J. G.||Hannon, Sir P. J. H.||Parker, J.|
|Bossom, A. C.||Harbord, A.||Petherick, M,|
|Bremfield, W.||Hayday, A.||Pethick-Lawrenee, Rt. Hon. F. W.|
|Bull, B. B.||Henderson, J. (Ardwick)||Poole, C. C.|
|Burghley, Lord||Henderson, T. (Tradeston)||Price, M. P.|
|Burke, W. A.||Herbert, Major J. A. (Monmouth)||Procter, Major H. A.|
|Chapman, A. (Rutherglen)||Higgs, W. F.||Rathbone, J. R. (Bodmin)|
|Cobb, Captain E. C. (Preston)||Hills, A. (Pontefract)||Reed, A. C. (Exeter)|
|Colville, Rt. Hon. John||Holmes, J. S.||Ridley, G.|
|Cooke, J. D. (Hammersmith, S.)||Horsbrugh, Florenee||Ritson, J.|
|Cooper, Rt. Hn. T. M. (E'nburgh, W.)||Hunter, T.||Robinson, J. R. (Blackpool)|
|Daggar, G.||Jagger, J.||Royds, Admiral Sir P. M. R.|
|Dalton, H.||Jenkins, A. (Pontypool)||Russell, Sir Alexander|
|Dobbie, W.||Johnston, Rt. Hon. T.||Sait, E. W|
|Duckworth. W. R. (Moss Side)||Kerr, Colonel C. I. (Montrose)||Seott, Lord William|
|Dunn, E. (Rother Valley)||Lamb, Sir J. Q.||Smith, E. (Stoke)|
|Ede, J. C.||Lawson, J. J.||Sorensen, R. W.|
|Edwards, Sir C. (Bedwellty)||Leach, W.||Stewart, W. J. (H'ght'n-le-Sp'ng)|
|Elliot, Rt. Hon. W. E.||Mabane, W. (Huddersfield)||Strauss, H. G. (Norwich)|
|Entwistle, Sir C. F.||MacDonald, Sir Murdoch (Inverness)||Tasker, Sir R. I.|
|Everard, W. L.||McEwen, Capt. J. H. F.||Taylor, C. S. (Eastbourne)|
|Fildes, Sir H.||McGovern, J.||Taylor, R. J. (Morpeth)|
|Findlay, Sir E.||McKie, J. H.||Thurtle, E|
|Fletcher, Lt.-Comdr. R. T. H.||Macnamara, Major J. R. J.||Walker-Smith, Sir J.|
|Foot, D. M.||Manningnam-Buller, Sir M.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Fyfe, D. P. M.||Margesson, Capt. Rt. Hon. H. D. R.||Ward, Irene M. B. (Wallsend)|
§ or bestiality cases being gone over in the civil court. It is obviously undesirable to do so, as it would lead to unpleasant consequences both in the sort of evidence that would have to came out in court for the second time, and because it is obviously wrong when the case has been tried once to go over the same evidence again.
§ 12.17 a.m.
§ Mr. Robert Gibson
This proposal goes right against the immemorial practice in Scotland with regard to the procedure in divorce cases. Invariably proof is demanded and is required by the court before divorce is granted. What may take place in a criminal court if, without grounds for doing so, a man pleads "guilty" to a charge of this kind? The judge of the court of session will be bound to pronounce the decree of divorce. Such a case may not happen very often, but unfortunately injustice would be done, and there would be a complete violation of that general principle requiring proof in consistorial actions in Scotland. I cannot agree to the course that is being taken, and I must oppose the Amendment.
§ Question put, "That those words be there inserted in the Bill."
§ The House divided: Ayes, 107; Noes, 6.
|Watson, W. McL.||Wilson, Lt.-Col. Sir A. T. (Hitchin)|
|Watt, Major G. S. Harvie||Windsor, W, (Hull, C.)||TELLERS FOR THE AYES.—|
|Wells, Sir Sydney||Woods, G. S. (Finsbury)||Mr. Erskine Hill and Mr. Graham|
|Westwood, J.||Wragg, H.||Kerr.|
|Agnew, Lieut.-Comdr. P. G.||Spens. W. P.||TELLERS FOR THE NOES.—|
|Cartland, J. R. H.||Tinker, J. J.||Mr. Gibson and Mr. Barr.|
|Kelly, W. T.||Tomlinson, G.|