HC Deb 29 May 1946 vol 423 cc1207-11
The Solicitor-General

I beg to move, in page 47, line 10, to leave out Subsection (5), and to insert: (5) In any proceedings for an offence under this Act, the wife or husband of the accused shall be competent to give evidence, whether for or against the accused: Provided that the wife or husband shall not be compellable either to give evidence or, in giving evidence to disclose any communication made to her or him during the marriage by the accused. This Amendment entails a word of explanation, and possibly entails recounting the main burden of the discussions which have taken place on this Clause. Clause 53 (5) was designed to bring it about that the husband or wife of a person accused of an offence against the terms of the Bill should be a competent witness. In order to bring that about, the words which at present appear in Subsection (5) were incorporated into the Bill from the Criminal Evidence Act, 1898. They were anxiously considered by the Committee which sat upon this Bill, and the doubt was expressed that the effect of the Clause might be that the husband or wife might be made, not only a competent witness but a compellable witness. On behalf of the Government I gave an assurance that there could be no danger of that, because the words had been the subject of a decision in another place to the effect that they would not make the husband or wife compellable, although they did make him or her competent to give evidence. Therefore, that doubt was set at rest.

Then a further point was made—and this is the point we have endeavoured to meet by the present Amendment—that the privilege which was said to exist should be reintroduced into the Bill, namely, the privilege which protects a husband or wife from being under an obligation to disclose, in the course of proceedings, communications made to him or her by his or her husband or wife, as the case may be. It was pointed out that the Subsection did not contain any words which were apt to reaffirm that privilege. That again was pat forward by an hon. Gentleman opposite in a very carefully reasoned argument. An undertaking was given on behalf of the Government that that point would be very carefully considered, and an endeavour made to meet the point. It has been considered and, as the result of considenation, the Government have come to the conclusion that the best way of making certain, not only that the wife was not compellable but only a competent witness, but also of preserving the privilege in respect of marital communications, was to recast the whole Subsection. There were various technical drafting reasons for that decision with which I need not trouble the House. The net result is, we have recast the Subsection with the object of bringing about those two results.

The first result is, therefore, that the husband or wife is a competent but not compellable witness in proceedings against his or her spouse; and the second result is that the privilege is preserved which enables a husband or wife to decline to disclose a communication to him or her by his or her spouse during marriage. In these circumstances, the desire having been expressed from both sides of the Committee that the privilege should be retained and reaffirmed, and as the recast Clause does that, I ask the House to say that it would be proper for the Bill to be amended in the terms of the Amendment which I have moved.

Major Digby (Dorset, Western)

As, supported by hon. Friends, it was I who moved the Amendment in Committee, I should like to say how grateful I am to the hon. and learned Gentleman for this Amendment, which seems to me to cover the point I had in mind.

Major Legge-Bourke

I also welcome the decision of the Government, but may I put one question to the learned Solicitor-General? In Committee the hon. and learned Gentleman felt, I think, that this provision might queer the administration of other Acts if it were put into this Bill. Reference was simply made to the Criminal Evidence Act, 1898. Can we have an assurance that it will not do so?

Mr. C. Williams

This raises a point of considerable importance, and that is the point that a married man or woman shall not be compelled by law to give evidence against his or her spouse. Now, on this point the Government have given way to what, I believe, is the general opinion of the House and of the community as a whole. In thanking the Government for doing so, I wish to point out to the House two important points. First this had got into the Bill. It was in the Bill as it then stood. [HON. MEMBERS: "NO."] Well, at any rate, if it was not in the Bill, the Clause was drafted in such a way that there was doubt on the matter.

An Hon. Member

There never was doubt.

Mr. C. Williams

If it was not in the Bill, and if there was not any doubt whether the husband or wife might be compelled, what is the matter with the Bill? I thank the hon. and learned Gentleman for what he has done, and for clearing up the matter and keeping the right of a husband or wife in the way that it should be kept.

The Solicitor-General

If I have permission to reply to the points made, I should like to say with regard to the first point, that I did refer to technical drafting considerations. We were anxious to ensure that other Acts would not be put into doubt as a result of any wording we used in this Bill, and we are quite satisfied that the wording we have chosen in recasting the Subsection will avoid that possibility. In reply to the hon. Member for Torquay (Mr. C. Williams) may I say I think he is under a slight misapprehension. Suppose the Amendment were not made, and the Clause remained as it is now. There would be no doubt at all— it would not be possible to compel a husband or wife to give evidence against his or her spouse. The point that was made, and the point that we are now seeking to remedy in recasting the Clause is this: we want to make sure that the privilege which protects a husband or wife from having to disclose communications made during the course of marriage is preserved, and it is that additional point we have met in recasting the Subsection.

Mr. C. Williams

I do not wish that there should be any misunderstanding of what I said. I fully accept what the Solicitor-General has said. If I did not put it quite so clearly as he did that is because I have not his command of legal language.

5.45 P.m.

The Solicitor-General

I did give way and so perhaps I may continue to speak. There were two separate points. One point was already provided for in the Bill as it stood. That point was this: we wanted to bring it about that a husband or wife, although competent, should not be compelled to go into the witness box and give evidence; and as the Clause stood without the Amendment that was provided for. But then there was this additional point. We wanted to make sure that if a husband or wife did go into the witness box, and elected to give evidence, nevertheless, he or she could claim the privilege in respect of communications made to him or her by his or her spouse. That is the additional point we have provided for in the recast Clause.

Mr. Peake

I intervene only to thank the hon. and learned Gentleman for what he is doing and to ask, in view of the fact that we are keeping the provisions of this Bill and those of the Industrial Injuries Insurance Bill parallel, whether steps will be taken, before that Bill returns to this House from another place, to include similar alterations in it?

The Solicitor-General

That is so.

Mr. Scollan (Renfrew, Western)

Did the Solicitor-General mean that the reading of this Bill is that a husband or wife may be called as a witness either for the prosecution or the defence? Does it mean that they will not be compelled to give evidence?

The Solicitor-General

This is the second time that I have to ask the leave of the House to speak again in order that I may reply to that point.

Mr. Deputy-Speaker (Major Milner)

The hon. and learned Gentleman in charge does not require leave to speak again on the Report stage of a Bill which has been committed to a Standing Committee.

The Solicitor-General

The position is this. A husband or wife can now go into the witness box and give evidence, and can, give evidence as to all relevant matters; but if somebody asks a question about what his or her spouse said, in a confidential way in marital communications, the witness can refuse to answer that question.

Mr. Scollan

Before we leave that, I do want to be clear on this point. The Amendment says: The wife or husband of the accused shall be competent to give evidence, whether for or against the accused: Provided that the wife or husband shall not be compellable either to give evidence, or, in giving evidence to disclose any communication. … If it does not mean the husband or wife can be compelled to be a witness of anything but such communications I do not see the point of the Amendment.

Mr. Turner-Samuels

There is a difficulty here. If such a witness were compelled to give evidence on every other matter except that concerning such a communication, that would be a very grave matter. It certainly looks rather like that.

Amendment agreed to.