§ 12.27 a.m.
§ Miss HorsbrughI beg to move, in page 3, line 19, to leave out from "person," to the end of the Sub-section.
We have now come to what I think we all agreed, at the beginning of our discussions, was a difficult subject. I think it is partciularly desirable that the onus in the case of a petition for divorce on the ground——
§ The Lord AdvocateOn a point of Order. May I ask for your Ruling, Mr. Deputy-Speaker, as to whether the point which the hon. Lady proposes to argue has not already been fully covered by the Debate which took place on the earlier Amendment in the name of the hon. Member for Central Aberdeen (Sir R. Smith)?
§ Mr. Deputy-Speaker (Captain Bourne)I think that point has been a good deal covered in debate, but that does not make it out of order for the hon. Lady to move an Amendment in order, if necessary, to get the feeling of the House on the point she wishes to raise.
§ Miss HorsbrughI know there has been some difficulty in that many hon. Members thought we could not refer to Clause 6, and although the period of five years has been referred to, I do not think that until now we have discussed the subject of where the onus of proof should be. We are discussing a petition of divorce on the ground of incurable insanity. I think that many hon. Members feel, as I do, that the onus of proof should remain, as it does in the English Bill, on the pursuer, the man or woman who is sane and who seeks to have his or her marriage dissolved because his or her spouse lives in an institution owing to insanity, and has been there for five years. I ask hon. Members whether it is right that, as in the Bill at present, the defence should have to be brought by the insane person, or by someone on his or her behalf, who has practically to prove that the insanity is curable.
§ In the Committee stage the Lord Advocate was asked the meaning of the words "the contrary is shown." It was a case of balancing the evidence, and if the balance of the evidence is even, then, according to this Bill, as it now stands, a divorce must be granted and the person must be stigmatised as incurably insane. I believe hon. Members in all parts of the House will, if they consider this Amendment, support it, because surely it has not been the practice in any other courts to begin by considering that a defender is either guilty or incurably insane and then leave it to the defender to prove the opposite? Is it to go out from this House that in a petition for divorce the defender is the person who has got to bring proof that he can recover with all the difficulties as to proof and all the effects of illness, instead of, as under the English method, the petitioner—the person who is sane, and who is seeking release from marriage because of such insanity? Surely the burden of proof should lie with this last person, and not with the defender, the person who is so helpless?
§ It has been suggested that in all cases that insane person will be able to do it, but I suggest also that it will be found difficult to substantiate; much outside opinion will have to be called. This is absolutely the crux of the difficulty, and I do appeal to hon. Members in all parts of the House to decide to-night quite clearly that if there is to be divorce for incurable insanity, as the House has decided, then it shall be for the pursuer—the petitioner, as we say in England—to prove that the defender is an insane person.
§ 12.31 a.m.
Mr. DavidsonI beg to second the Amendment.
I think the hon. Lady has made out an unanswerable case on this particular question. She is asking that the House should support the unfortunates against those who are more fortunate, and give at least sympathy to the plea of those who 1273 are asking that the persons who are said to be insane shall be placed in the best possible position to defend themselves against what may be unscrupulous and selfish attempts in the future. I support the Amendment in order to clear away misrepresentation and inaccuracies that were thrown to the House in regard to a previous speech of my own on this selfsame question.
§ 12.32 a.m.
§ Mr. Erskine HillI do not propose to repeat the arguments that I used on the previous Clause. This is a different Amendment, only it goes much further. Its purpose is the same as that of a previous Amendment, but it would leave the words "incurably insane" without any definition at all. It would have the effect of entirely wrecking the Bill, and I would ask those who supported my hon. Friend's Amendment in the Lobby to reconsider before they take a step which, in my view, would have this effect. I think the position of this Scottish Bill would be entirely worse than the position in the English Bill if this Amendment were accepted.
§ Mr. BurkeWould not the retention of these words make it possible for the court to say that after five years' treatment in an institution they could, therefore, be presumed to be incurably insane?
§ Mr. Erskine HillThey might make that presumption. That would be putting things in a similar position to the English bill, where it is clearly stated that there should be a five-year period. That, in fact, does give the English courts the power to make such presumption for themselves.
§ 12.34 a.m.
§ Mr. FootI regret that on this occasion I cannot agree with the last speaker. I should have thought that if the Clause is left as it stands, it would mean that if the five years' detention and treatment in an institution were proved, the courts in Scotland were then bound to presume incurable insanity unless the contrary could be shown. That is the precise point we are discussing, and it does seem to me to be a very heavy burden, indeed, to cast upon the defender if you say that he or she has got to discharge an onus of that kind. Again, I speak with a good deal of 1274 diffidence in referring to what happens in the Scottish courts, but I entirely fail to see where any difficulty can arise. Suppose the Amendment is carried, what, then, is the situation under this Bill? We have laid it down in Clause I that one of the grounds for divorce shall be incurable insanity, and then we lay down under this Clause that incurable insanity shall not be held to be proved unless there has been five years' detention and treatment. That is to say, we should be in very much the same position as if we had inserted in this Bill the words that were in the English Bill—not, I agree, in precisely the same position, but in a very similar one—in that incurable sanity would be a ground for divorce but it could not be established until the defender had been five years under care and treatment. What is now being proposed would go very much further than. As I said on an earlier Amendment, this is a proposal that where the court, after having heard both sides, is left in a state of doubt, it would have to resolve that doubt in favour of the pursuer and against the defender. That is the situation you would have if the Clause were passed as it now stands.
There is one other consideration. It does seem to be a very dangerous thing to presume that because somebody had been for five years in an asylum under care and treatment, that that person was therefore incurably insane. It may be a very rare case, but it will be within the knowledge of every hon. Member that it does occasionally happen that people are wrongly certified. Such cases have from time to time come to notice, and they have, in fact, been considered by the courts. I ask the House to consider what the situation would be if you had someone who had been wrongly certified, and who, though he was completely sane, had been detained in an institution of this kind for a period of five years. Such things have occurred. I do not say it is likely, but it might happen, and it might be that if you are to leave the onus on the defender under this Measure, obviously in a case like that in which you have a wrongful detention in an asylum for a period of five years, it might be that the person wrongly detained might find that a decree of divorce had been obtained against him or her during this period of detenton. I know that would be a very extreme case, and very unlikely 1275 to arise—certainly not likely to arise if the person charged with the care of the detained person did properly fulfil his duties. Although that is an extreme case, it does show the sort of difficulty which might conceivably occur if you insist on putting the burden on the insane party to the marriage. I speak as a supporter of the Bill and as a supporter of the proposal that incurable insanity should be a ground for divorce; but it does not seem to me that this Bill would lose anything in effect if this Amendment were accepted.
§ 12.41 a.m.
§ The Lord AdvocateI should like the House to appreciate what, I think, must have become perfectly plain from the speech of the hon. Member who has just spoken, that the question on which we are now asked to take a decision is identical in every respect with the decision taken a few minutes ago on the Amendment on line 15. The question appears to be as to whether a Scottish Bill is to be framed on the English model, or on better lines with a view to obviating the difficulties that have been encountered and are being encountered. The House has taken a decision on that point, and I am bound to say I cannot understand how on this issue any difference from the wider decision can possibly be raised. As regards the question of the onus of proof, I should like to make it plain that the initial onus of proof will be laid on the petitioner or pursuer up to the point when he establishes five years continuous care and treatment as an insane person. It is on that point that the figures I referred to earlier become relevant, for of 2,500 married persons detained for five years, something in the order of 27 or 22 were discharged as cured.
What we propose in this Clause is that when that stage is reached—the stage of proof of the five years' continuous detention—the law of probabilities, which is all that can be applied in the ascertainment of truth, should be applied in producing the inference of incurable insanity, "unless the contrary is proved." All that means is that if there is adduced on behalf of the defender by the curator ad litem or by relatives, grounds for asking that the normal inference should not be drawn, then that inference is not drawn. If there is 1276 evidence which satisfies that the normal inference should not be drawn, and if that evidence is before the Court, the normal presumption will not prevail. This is part of the scheme of the Bill deliberately designed as an alternative and an improvement upon the scheme of the English Bill, and I venture to suggest that as the House has already accepted the second alternative, it should be consistent and support it.
Mr. DavidsonIf this Clause is carried, will it mean that the pursuer in a divorce case on the ground of incurable insanity against a spouse who has been in an asylum for five years or more will have the onus placed upon him or her to prove incurable insanity, or will the onus be on the defender or the defender's relatives to prove non-incurable insanity?
§ The Lord AdvocateI will answer the question again. The initial onus is on the pursuer to prove incurable insanity which he does by proving five years' continuous detention. The onus then shifts to the defender, and if he or she adduces evidence to the satisfaction of the Court that recovery is probable, in that event the presumption of incurable insanity will not be drawn. There is no mystery in this or, indeed, anything unusual in regard to it. I hope I have made the position clear.
Mr. DavidsonIs it not true to say that the only thing the pursuer needs to do is the preliminary step of proving five years' incarceration?
§ Mr. Deputy-SpeakerThe hon. Member must not make a speech.
§ 11.44 a.m.
§ Sir Cyril EntwistleOn a point of Order. If the Amendment on which the House has already decided, namely, to insert in this Clause
and has been continuously under care and treatment as an insane person for a period of at least five years immediately preceding action for divorcewas a preliminary Amendment to Subsection two of Clause 6, which it clearly was from the arguments already advanced by the Lord Advocate, are we not now being invited to decide on the same question on which we have already voted? If the Amendment was because of this following Amendment, and they wanted to preserve the five-year term 1277 condition under Sub-section (2) and to omit the presumption which follows in the second part of the Sub-section, it was precisely on that part of Sub-section (2) to which objection is now being taken that the House has already decided in voting upon it.
Mr. DavidsonOn that point of order, is it not a fact that when the previous Amendment was discussed it was an amendment of words that did not deal with the onus on the defender or the pursuer? This is an Amendment which deals with the onus on the defender, and is it not a fact that on the previous Amendment a ruling was given that we could not discuss Clause 6, and does that not give us the right to discuss this Amendment?
§ Mr. Deputy-SpeakerIn reply to the hon. Gentleman who raised the point of Order, the more it is discussed the more it comes into my mind that it is completely out of Order. I think I am bound to hold that this Amendment is contrary to the decision of the House already taken, and I must withdraw it from the House.
§ Miss HorsbrughIn the ruling that was given at the beginning we were told we could not discuss this question until we came to Clause 6. When we were discussing the first Amendment we all kept off very carefully the question of onus. It is a very big point, and we kept off it because we believed that the question of onus was coming up on Clause 6. The ruling was, I understand, that we could not discuss the subject of onus because we were to discuss it on Clause 6. Therefore, I cannot speak on the subject.
§ Mr. Deputy-SpeakerIn reply to the honourable Lady, Mr. Speaker later on ruled that the question of onus had been raised. The more I have listened to the debate the more I have become convinced that had the original Amendment to leave out line 15 been carried all this subsection would have been consequential and, therefore, the matter cannot be raised now.
§ 12.50 a.m.
§ Mr. SpensOn that Ruling, and with very great respect may I raise two points? The first Amendment was an Amendment 1278 to prescribe that there should be five years' detention before a petition for divorce could be presented. That was the first Amendment and it had nothing whatever to do with what had to be proved or how it had to be proved when the petition had been presented. That Amendment was rejected, and it is therefore perfectly competent for any person to present a petition under this Bill, as the House has accepted it before there has been five years' detention at all. Now what this Clause prescribes is that if, in fact, there has been five years' detention and a petition is presented, then the pursuer can establish that, and there is a presumption in law that, having established that, there are grounds of incurable insanity. With very great respect, Sir, the two Amendments are on quite separate points. I, certainly, on the first Amendment spoke from one point of view only—that as in the English Act passed last year this House laid down that no petition should be presented until there had been five years' detention in a home, so in the Scottish Bill the law should be made the same and passed. With very great respect to you, I submit there are two separate points, and I would be grateful if I had an opportunity of speaking on the second.
§ Mr. Deputy-SpeakerI think there is a mistake. There is nothing in Clause 1 saying that a petition cannot be presented before a certain time has elapsed. I must adhere to my Ruling.
§ 12.52 a.m.
§ Mr. FootPerhaps I might give some assistance. I think that I was to blame when the matter was being raised on the previous Amendment when Mr. Speaker was in the Chair. What happened was that certain honourable members had spoken on that Amendment without referring to Clause 6. When I got up I asked Mr. Speaker's guidance, pointing out that it was difficult to discuss the previous Amendment without referring to Clause 6. I pointed out I did not want to discuss the merits of Clause 6, but that in order to discuss the Amendment I did think it was necessary to refer to Clause 6. Then I think it was the hon. Member for Linlithgow (Mr. Mathers) who rose and endeavoured to preserve the Rules of the House without discussing Clause 6. At a later stage—I may be wrong—I think Mr. Speaker did say 1279 that it would still be open to us to discuss the proposal contained in Clause 6, although the wider interpretation had been given on the earlier Amendment. The impression that was in my mind at the time when I rose to put that point was that by referring to Clause 6, and discussing the earlier Amendment we were not precluding ourselves from discussing this at this stage.
§ Mr. Deputy-SpeakerThat was a point I discussed with Mr. Speaker, and at the moment neither of us could see what was the difference between the first Amendment and the Amendment to leave out the Sub-section. We were not clear on that, and up to that moment we were prepared to give the House the benefit of the doubt; but listening to the debate has convinced me that the point has already been decided.
§ 12.54 a.m.
§ Mr. MathersThe reason for our being disqualified from discussing the Amendment is because the point was previously included in the Amendment which sought to lay down in Clause I that there should be a period of five years before action could be taken. I submit that that particular point is preserved by the alteration of the Amendment by allowing the words to "person", in line 19, to stand part under the Bill, and that a new principle is raised in the subsequent words which deal with a matter we have not been able adequately to discuss—the question of the onus of proof of insanity being laid now on the defender instead of, as we who arc in favour of the Amendment consider, upon the pursuer of the action.
§ Mr. Deputy-SpeakerI am afraid I cannot take the hon. Member's point. The Amendment if carried would clearly mean that the Court would be able to grant a divorce on the terms which the House has decided it should not be able so to do. That is the position in which we are left. The more I have listened to the debate, the more I am convinced that this Amendment is contrary to the decision the House had already taken, and I must adhere to that and withdraw the Amendment from the House.
§ Lieut.-Commander AgnewFurther to that point.
§ Mr. Deputy-SpeakerI must adhere to my point and withdraw the Amendment from the House.
§ Mr. Erskine HillI beg to move: In page 3, line 31, after "treatment" insert "(other than treatment as a voluntary patient)."
I do not think I need say very much about this other than that it is in fulfilment of a promise made during the Committee stage to see that treatment of voluntary patients does not come within this provision.
§ Amendment agreed to.
§ Mr. Erskine HillI beg to move, in page 3, line 35, at the end, to insert "and not otherwise."
This, like the previous Amendment, is in fulfilment of an obligation incurred in the Committee stage to make it clear that no other form of presumption period should be allowed.
§ Amendment agreed to.