HC Deb 05 December 1949 vol 470 cc1583-93

Lords Amendment: In line 23, leave out Clause 7.

Mr. Asterley Jones

I beg to move, "That this House doth agree with the Lords in the said Amendment."

I move this Motion with a great deal of sorrow. The Clause, which the other place now wishes us to delete, provided a method of appealing from the decision of courts of summary jurisdiction which the promoters of the Bill felt was necessary unless substantial injustice was to be caused. A court of summary jurisdiction has a very wide power to make orders extending over many years.

It appeared to the promoters of the Bill to be rather absurd that on a comparatively trivial criminal case a person, who is convicted before the magistrates, should be able to go to quarter sessions and have a complete re-hearing of the case with witnesses recalled, but that when a man is adjudged to pay a sum of £5 a week in favour of his wife for her life and 30s. a week for each child until he or she attains the age of 21 he should not have that right. It appears to us wrong that the decision of two or three magistrates, however honestly arrived at, should, on the facts of the case, be absolutely final in practice.

We propose to bring this form of appeal into line with that which prevails in criminal matters, whereby there is an alternative opinion by way of a case stated to the divisional court or by a rehearing at quarter sessions. There is a further point which led us to that conclusion. In the Matrimonial Causes Act, 1937, an order of a court of summary jurisdiction can be evidence of a matrimonial offence for proceedings for divorce brought at a later date. The circumstances in which this arises are—a man and a wife may be married perhaps only a year when the husband commits adultery. There is no possibility of divorce for three years, but in order to protect the wife and preserve the evidence, the wife's advisers suggest that she should either ask for a judicial separation in the High Court, or in the case of poor people go to the magistrates and ask for a separation or a maintenance order, or both on the grounds of adultery.

In due course, when the three years have clapsed it is possible to go to the High Court and ask for a divorce and produce the evidence of the magistrates. It is not conclusive evidence but evidence of the matrimonial offence complained of. While it is open to the High Court to hear evidence contradicting that order, it provides a strong prima facie evidence of the matrimonial offence which is the subject of the proceedings between the parties in the higher court.

Mr. Marlowe

I have not read the Debate in another place on this particular aspect of the subject. Perhaps the hon. Gentleman could tell us on what grounds the Lords rejected this Clause.

Mr. Asterley Jones

I was going to deal with that. I am just making the point that an order of a bench of magistrates may have far-reaching consequences, which ought to be very seriously studied, and which, in the view of the promoters of the Bill ought to be made the subject of appeal on the facts. When this particular Clause went to the other place, the Lord Chancellor was very sympathetic towards it, but he and a number of other noble Lords proposed that it should be rejected on the ground that a change in jurisdiction of such fundamental importance and one which aroused a certain amount of controversy should not be made in a Private Member's Bill. That is the only ground upon which I ask the House to agree with the Lords in this Amendment. I personally think this Amendment is necessary.

The Lord Chancellor has given an undertaking in another place that he will watch the situation very carefully and keep it under review. That being so I feel that the main objects of this Bill are of such importance that we should not insist upon this particular Clause being retained in it, but should rely on the assurance that has been given that if there is a substantial injustice caused by the absence of the Clause on a question of fact the matter will be examined once more. I am sorry about this and I am most reluctant to take the step which I have proposed, but I feel that it is the only course which this House can follow.

Mr. Monslow

I beg to second the Motion.

I should like to express my regret that the Lords did not accept the Amendment for the reasons adduced by my hon. Friend the Member for Hitchin (Mr. Asterley Jones). I should like to take advantage of this opportunity to recognise the progress already made with this Bill, and to express my warm thanks and appreciation to all Members on both sides of the House who have rendered invaluable service in order to bring this Bill to fruition.

Mr. Marlowe

I am very grateful to the hon. Gentleman the Member for Hitchin (Mr. Asterley Jones) for the explanation he has given of this matter. I agree with him that it is most unfortunate that this Clause has to go. It seems to me a very necessary reform of the law. I agree with what the hon. Gentleman said just now—that as the amount involved is veing increased by this very Bill, the necessity of an appeal of this kind becomes all the more important. It seems to me rather unfortunate that once again we are put in this position that either we concur or risk the loss of the Bill, which none of us wants.

As I told the hon. Gentleman, I have not read the Debate on this matter in another place, and I am obliged to him for his clear explanation of what took place. I cannot see that because this raises rather a large issue that it should not, therefore, be dealt with in a Private Member's Bill. It is not a logical sequence of events but the contrary in my view. Because the issues are important, I do not see why they should not be brought to the attention of the House by a Private Member's Bill. The Bill raises this important matter, but there is no guarantee that this admittedly desirable reform will be made by any other means.

I understood the hon. Gentleman to say that no undertaking was given by the Lord Chancellor that the Government will introduce a Bill to deal with the matter, merely a promise that the position will be watched to see if an injustice were done. I find that rather hard to follow. If there is not an appeal how is it known whether an injustice is done? It would seem far more preferable to allow the Clause to remain in the Bill and watch events thereafter. As it is, the Lord Chancellor is going to watch nothing. If this Clause were allowed to operate the matter could be given attention, and then the Government could introduce their own Bill to deal with any situation creating a difficulty. We are left once more in the unfortunate situation that the Lord Chancellor is holding a pistol at our heads. We must either accept this Amendment from another place or risk losing the Bill. Once again we have to concur in a proposition made in another place.

6.0 p.m.

Mr. Hale

I agree with every word that the hon. and learned Member for Brighton (Mr. Marlowe) has said. I still do not know precisely why it should be that under one head we can have the Bill only by agreeing with the Lords and under another head we can have the Bill only by disagreeing with the Lords. I am told that there are such things as "usual channels" and methods of navigation, in which I have never personally found myself and which are, so far as I am concerned, completely uncharted. If my hon. Friend says that he is satisfied that that is the position, we must pay some regard to what he has said. I read with very great care what was said by my noble Friend on the Woolsack, and I must say that I read it as being a little more definite than my hon. Friend has put it to the House. Perhaps I paid less attention to his golden accents and more attention to his words than most people. I will not say that I derived from it a specific undertaking, which no Lord Chancellor under the sun has ever given, but I derived something of an intimation of an admittedly great work of law reform that has to be done by embarking upon the whole consideration of appellate jurisdiction.

We know that that is fundamentally important. This Clause is nearly as important as any Clause in the Bill. I deplore its going. I hope that if it has to go in these circumstances, there will be a few moments spent now in emphasis of this matter in order to make the view of this House clear. In some speeches it has been frankly suggested, as it was put in the House on Third Reading, that for all practical purposes there is no right of appeal. In proceedings under the Summary Jurisdiction (Married Women) Act there is a right of appeal to the Probate, Divorce and Admiralty Division, but they of course have to say: "The Bench saw the witnesses; this is a matter of fact—and we do not decide upon matters of fact—we can only interfere on matters of law, and there is not a lot of law in this matter." In 99 cases out of 100 where there is not a sense of real injustice, one has to advise the party not to appeal at all.

I hope that it may go out from this House that we have paid some attention to what was said and that we look forward to a real consideration of appellate jurisdiction. I wish there were a Law Officer of the Crown on the Government Front Bench who could give some clear indication to the House that that will be done. [An HON. MEMBER: "The Lord Advocate."] I am very sorry that I failed to notice among that assembly of notables the Lord Advocate. Whether he can deal with this strictly English Bill, I do not know. I am sure that the Under-Secretary of State for the Home Department will bear in mind what has been said. I am sure that he will have a very lively appreciation of the points and of their application.

In conclusion, I should like to refer to the fact that this is the first Private Member's Bill that has come back to this House in this form. I would remind hon. Members that it was the minatory threat of the fairy queen in the opera that she would End the cherished right We enjoy on Friday night. The Bill is a symptom of the very useful work that can be done on either side of the House in matters of social reform. I hope that in the next Parliament we shall again have the cherished right that we once enjoyed on Wednesdays and Fridays, and shall see a great deal more of this kind of refrom.

Mr. Turner-Samuels (Gloucester)

The rejection of Clause 7 is definitely a retrograde step. The reason I say that is that there is a right of appeal, rather more extensive than we have just been told by the hon Member for Oldham (Mr. Hale), from the courts of summary jurisdiction to the Probate, Divorce and Admiralty Division, on matters of fact. It is more extensive than on a case stated merely on legal points.

Mr. Hale

I never used the words "case stated." Some echo of other oratory still remains in the ears of my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels). I never referred to it. I said that, virtually speaking, there is no appeal on fact.

Mr. Turner-Samuels

Actually I was indicating that there was, but we will leave that alone for the moment. The objection to rejecting this Clause lies in the fact that rejection does away with the opportunity that the Clause seeks to give to those who want to appeal to do it inexpensively and locally. Anyone who wants to appeal in these cases, now has to go to the Probate, Divorce and Admiralty Division and is precluded from taking his appeal locally to the court of quarter sessions, the right to do which it is sought to confer upon him by Clause 7 of the Bill. That seems to be a strong objection to the Clause being deleted. As I say, a local appeal is very much cheaper and quicker. The costs are relatively small and the time involved in making the appeal is also short. At the present moment, appeals are constantly coming from courts of summary jurisdiction to recorders and county quarter sessions of a much more intricate kind than those with which we are concerned here.

These cases of maintenance orders usually turn upon such matters as whether the amount which has been ordered is too much or too little, whether in fact there has been desertion, or neglect to maintain, or cruelty, or whatever the ground is on which the order is asked to be made. There is no abstruse or difficult point of law involved in cases of this kind. I think it is right to say that in almost every possible case of this kind the question is purely one of fact and of such domestic, simple facts that it is perfectly easy to decide. That, I suppose, is why these cases are submitted in the first place to a court of summary jurisdiction where lay magistrates can decide these very points. I cannot see why another place went out of its way to preclude the provisions of Clause 7 being incorporated in the Bill.

I must register my personal view against Clause 7 having to go, but having regard to the fact that we can keep the rest of the Bill only if Clause 7 goes, I would much sooner drop it than lose the other provisions. Before I resume my seat I should like to congratulate the promoters of the Bill, and particularly my hon. Friend the Member for Hitchin (Mr. Asterley Jones), whose experience and knowledge of this subject we all appreciate and to whom I have no doubt, in collaboration with his lay friends, the successful promotion of this useful Bill belongs.

Mr. Boyd-Carpenter (Kingston-upon-Thames)

The view was expressed by the hon. Member for Oldham (Mr. Hale) was that some useful purpose will be served if it is made clear that there is universal regret that the hon. Member for Hitchin (Mr. Asterley Jones) has, no doubt tactically and very wisely, found himself forced to give way on this point. I share the view of the hon. Member for Oldham that the only hope of further remedial action being taken, either by the powers that be or by the powers that will be, is that it is made extremely clear that this is regarded as a very important matter. An hon. Member opposite stressed the importance of providing appeal on fact in these cases, on the basis of the very large financial burden which now, under the Bill, may be imposed by one of these orders.

There is also another aspect of the matter which is at least equally important, and that is the extreme difficulty of determining the facts in these cases. Hon. Members who have had experience, as I had in the days when I was in practice at the Bar, of dealing with matrimonial cases before justices know that they are not only as unpleasant a type of case for anyone taking part as can be imagined, but they are incredibly difficult in that there is hard sworn testimony which conflicts at almost every point with hard sworn testimony in the opposite direction, and of all judicial tasks that of magistrates in dealing with matrimonial cases is one of the most difficult there is. If that is so and if, as has been said, the amounts involved are very substantial, there is a strong case for the provision which this Clause sought to make for an appeal on fact to quarter sessions. I hope that, no matter what may be the result of the Lord Chancellor's observations on the matter, we shall continue to press for such an appeal.

There is one other reason why it seems to me to be a great pity that this Clause has now to be dropped. There is another Measure before the House at this moment which seeks to abolish certain of the courts of quarter sessions to which these appeals would have gone if the Clause had remained. I hope that when we again press this matter we shall not be told that these appeals cannot be provided because, owing to the reduced number of courts of quarter sessions, the work there will be overloaded. It would have been more appropriate if we could have put this provision in the Bill now, so that when in another capacity the House dealt with the other Measure, it would know precisely what amount of work there would be for the courts to deal with. The two Measures would have dovetailed. The decision of another place has prevented that.

The only other thing I would add is that the objection which, according to the hon. Member for Hitchin, was taken to the inclusion of the Clause in the Bill was apparently its importance. It is a remarkable proposition that because a matter is important it cannot be dealt with in a Private Member's Bill. If that attitude had been taken in 1937, the extremely important Measure put through this House by the junior Burgess for Oxford University (Sir A. Herbert) could never have been passed into law, because that was plainly an important matter. It is certainly a new proposition that Private Members' Bills should be restricted only to matters of trivial importance.

I hope that even when this House does, as it will have to, give way on this point, we shall make it perfectly clear that we do not accept the principle that matters dealt with in Private Members' Bills originating in this House should not pass into law if they happen to deal with important subjects. That would be an extraordinary precedent, one highly derogatory to the whole procedure of Private Members' legislation and one against which many of us on both sides of the House would be ready emphatically to protest.

6.15 p.m.

Mr. J. Silverman

Like other hon. Members, I am sorry that it is necessary to concur with the Lords in order to save the Bill. This Clause is an extremely important one. My recollection is that its main antagonist in the other place was the President of the Probate, Divorce and Admiralty Division, and that his case was that the present appellate jurisdiction of that Division is properly exercised by people having vast and long experience of the law and of this type of case. Nobody questions that. It is true that those who sit in that court are competent people and that within the sphere of their jurisdiction they do their job very well indeed, but the complaint that we have to make is not with regard to the way they do their job but is simply that the vast majority of matrimonial cases in which there may be an injustice never have an opportunity of getting there.

In the first place, there is the expense. There is also the point that in the great majority of cases the husband will be compelled to bear the cost irrespective of the result. There is also the point that while it is true that, theoretically, their jurisdiction extends beyond points of law, in substance it does not go very much further than deciding points of law, because if the court can say that the magistrates' court could possibly have arrived at the decision at which they did on the evidence which is on the record, the appeal is inevitably dismissed, which means that in the great majority of cases the person who believes that his case has been properly decided before the magistrates does not bother to appeal at all and is advised, and quite correctly advised, "Do not waste your time and money in appealing because the decision against you is inevitable."

Obviously, decisions such as these decide the status of a man or woman for life and deal with vast sums of money, and it is clear that there ought to be adequate appellant jurisdiction and that it should not merely be confined to a small minority of cases where on the record the decision is unmistakably wrong. Appeal to Quarter Sessions, the procedure which applies to practically every other case of appeal from courts of summary jurisdiction, should also be applied to these cases.

Unfortunately, to save the Bill we have to concur with the Lords, but I hope the Government will note the unanimity of hon. Members about the Clause. On it we have what might be called a "lawyers' field day." I do not think we ought to apologise for that because between us we bring into this Chamber a good deal of specialised experience about these problems and the lawyers agree. I hope that the Government will find it possible to introduce legislation covering this point. Perhaps somewhere in the void of the coming Session they will be able to find room for it. Certainly it is badly needed, and I hope the Government will be able to deal with it on some future occasion.

Mr. Younger

I do not think it would be at all useful if at this stage I were to attempt to enter into a discussion on the merits of the Clause. I will, however, say that I shall see to it that what has been said is brought to the notice of my right hon. Friends the Home Secretary and the Lord Chancellor. I think that all hon. Members have appreciated that, whatever may be their views on the merits, the advice given to the House by my hon. Friend the Member for Hitchin (Mr. Asterley Jones), that for tactical reasons it would be advisable to agree with the Lords in this Amendment, is sound advice.

It is probably within the recollection of the House that at an earlier stage of the Bill, speaking for the Government, I supported the Clause which it is now proposed to remove from the Bill. Since that time there has been much discussion. Very considerable opposition was expressed in the other place. It is true that the President of the Probate, Divorce and Admiralty Division was among those who, if one can so desribe it, "led the opposition." It is also fair to say that misgivings have been expressed, as it were, on the other side, from the courts of quarter session to which it is sought to give the additional jurisdiction. There has been a certain apprehension that they might find the burden of this new work a very considerable one which it would be difficult to bear. I am not seeking to go into the merits of the matter, but I would emphasise what was said by my hon. Friend, that there was considerable opposition in another place and that if we wish to see, as we all do, this Bill on the Statute Book, it would be advisable to agree with the Lords.

Mr. Marlowe

May I put a point to the hon. Gentleman? In view of the fact that one of the difficulties that arises is the question of overloading courts of quarter sessions, will he when making representations about this matter point out that it seems most ill-advised that the Government should choose this very moment to cut down the number of courts of quarter session.

Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to one of their Amendments to the Bill: Mr. Eric Fletcher, Dr. Haden Guest, Mr. Asterley Jones, Mr. Anthony Marlowe, and Mr. Monslow: Three to be the quorum.—[Mr. Monslow.]

To withdraw immediately.

Reasons for disagreeing to one of the Lords Amendments reported, and agreed to: to be communicated to the Lords.