Clause 8.—(SHORT TITLE AND EXTENT.) (Hansard, 8 July 1949)

§ Mr. Manningham-Buller
I beg to move, in page 3, line 26, to leave out "Scotland or."
As the Bill stood, it was provided that it should not extend to Scotland. By reason of the new Clause which this House has agreed this morning, it is obvious that the words "Scotland or" should now be left out.

§ Sir P. Macdonald
I beg to second the Amendment.

§ The Lord Advocate
I think it desirable to make it clear to the House, and particularly to my hon. and learned Friend the Member for Northampton (Mr. Paget), that the only part of this Bill which affects Scotland is the new Clause moved this morning. Hitherto, no part of this Bill affected Scotland. The introduction of this new Clause made it necessary to extend the Bill to Scotland only to that limited extent. None of the other Clauses had any application whatever to Scotland. If on reflection we decide that any other Amendments are required to make the position clear, although I do not think that they are, they will have to be made in another place.

§ Sir P. Macdonald
I beg to move, "That the Bill be now read the Third time."
I do this with some confidence because to my delight I found that this Bill designed to remove certain anomalies in the law met with support from all sections in the House. This is the second time when, through the luck of the ballot, it has fallen to my lot to introduce a Private Member's Bill in this House. The first occasion was when the last Labour Government were in office I introduced a Bill to remove tolls on bridges and highways. That was not part of the Road Traffic Act, and I thought that it was a necessary reform in the law. When I introduced the Bill I received assistance from the Lord President of the Council, who was then Minister of Transport. After the Bill had 2513 been through all its stages in this House, he asked my permission to incorporate it in his Road Traffic Act. I gladly agreed. I hope that this Bill in its further stages will meet with the same support from the Government, that it will be met with the same acclaim when it goes to another place and, finally, that it will reach the Statute Book.
I should like to mention the new Clause put down by the hon. and gallant Member for Brixton (Lieutenant-Colonel Lipton) which brought on my head shoals of correspondence——

§ Mr. Speaker
If the new Clause was not incorporated in the Bill, one must not discuss it.

§ Sir P. Macdonald
I accept your Ruling Mr. Speaker. The fact is that I had so much correspondence as a result that I thought I would make my position clear to the hundreds of people who wrote, and that I would say that I could not possibly allow a subject such as divorce——

§ Mr. Sydney Silverman (Nelson and Colne)
On a point of Order. I do not want to stop this at all—I would rather encourage it—but if the hon. Member is allowed to say why he does not agree with the suggestion of my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton), will the rest of us be allowed to say why we do?

§ Mr. Speaker
One really should not mention the matter at all.

§ Sir P. Macdonald
I wish to thank most sincerely all those who have assisted during the various stages of this Bill, especially the hon. and learned Member for Daventry (Mr. Manningham-Buller), who carried the full burden of the negotiations during the earlier stages of the Bill while I was absent in another part of the Commonwealth. He has shown the utmost skill and tact and has earned the praises of everybody. I want also to thank the Law Officers, who lent their assistance, and the officers of the Lord Chancellor. I am delighted that this Bill has met with the approval of this House, and I hope it will meet with equal success in its further stages. I know from the correspondence I have received that it will remove unhappiness and misery from the lives of hundreds of worthy people throughout this country.

§ The Attorney-General
This is a useful little Bill and the hon. Member for the Isle of Wight (Sir P. Macdonald) who, I think, has just made his first speech upon it, and the hon. and learned Member for Daventry (Mr. Manningham-Buller), who has piloted the Bill through the House and through the Committee stage are, if I may say so, both to be congratulated on the expedition and unanimity which have attended its passage through the House. The Bill does not purport to make any great or dramatic changes in our marriage laws. Whatever criticisms may be made about our laws relating to marriage—and some of them are, no doubt, open to criticism—and whatever hard cases may arise under our existing marriage laws—and there are hard cases—it is manifest that the religious, the social and the political implications of any general changes in the substantive laws relating to marriage are such that the House would not wish to deal with them in a Private Member's Bill in the short space of a Friday Sitting. The existence of hard cases is not a sufficient ground for drastic and inadequately considered Amendments in the general law.
But although the Bill does not purport to make any wide-scale or drastic alterations of that kind in the law, it is none the less useful in the procedural reforms which, in fact, it introduces. I will not take up time by commenting in detail upon all of them, but I should like to say that I am particularly glad that Clause 1 of the Bill will enable a married woman, long resident in this country, to petition for divorce in the courts and under the laws of this country, notwithstanding the fact that her husband is domiciled elsewhere outside the British Isles.

§ Sir P. Macdonald
The United Kingdom.

§ The Attorney-General
It is a little wider than that. We have used a phrase which, in fact, is generally and colloquially given as the British Isles and I am speaking, in this context, colloquially. The fact that a wife has hitherto been deemed to have the same domicile as her husband, is a rule which by no means has been universally recognised either in international law or, indeed, in our own municipal law, even in our law relating 2515 to marriage. It was a procedural and in some respects a highly technical and artificial rule and I have no doubt at all that its existence hitherto has caused grave hardship in a number of cases. For instance, a husband, perhaps guilty of some matrimonial offence, may have taken up his domicile in a country where, owing perhaps to the expense involved or to the fact that the laws of that country do not permit divorce at all, the wife has been prevented from petitioning for divorce. She has had to live, although separated from her husband, still in law married to him and unable to rely on the matrimonial offence which he has committed in order to seek a dissolution of her marriage.
I feel quite sure that the amendment of the law which the first Clause introduces in this respect will remedy a real injustice and greatly improve the procedure in this branch of our law. Accordingly, I commend this Bill to the House and I congratulate the hon. and learned Member for Daventry on his pan in introducing it and piloting it through the House.

§ Mr. Paget
I, too, should like to congratulate the hon. Member for the Isle of Wight (Sir P. Macdonald) and the hon. and learned Member for Daventry (Mr. Manningham-Buller) on having introduced this most useful Bill. I do not feel that they can in any way be blamed because they have not also included other reforms of this branch of the law which I believe—and I think the hon. and learned Member for Daventry also believes—would be highly desirable. If one draws a not very high place on the list of Private Member's Bills, one has no hope of getting the Bill through if one does not exclude everything which is controversial.
We have included, however, a number of highly useful reforms. We have got rid of the wretched rule in Russell v. Russell and we have got rid of the anomaly that a man, by deserting his wife and going abroad, could not only escape from the obligation to maintain her but could also hold her bound to him by having changed his domicile, so that she could not obtain a divorce in this country. That Clause in the Bill has released a lot of people who are held in most unjust 2516 bonds, and I think we should be extremely grateful.
I should, however, add one comment, and it is that I was a little shocked by the Attorney-General's statement that fundamental alterations in our divorce laws were not appropriate to Private Members' legislation. I cannot help feeling that the junior Burgess for Oxford University (Sir A. Herbert) must have felt equally shocked because, after all, it was by Private Members' legislation that we fundamentally altered the whole of the divorce law in this country. I feel that in a position as low in the list as was this Bill, we should only have lost the Bill had we introduced a controversial Clause, however desirable and however manifest, and I can only hope that when we reach another series of Private Members' Bills, somebody who will support these other reforms will draw a very high position.

§ The Attorney-General
Before the hon. and learned Member sits down, may I say that I said "a Private Member's Bill on a Friday."

§ Sir Alan Herbert (Oxford University)
I am not quite clear as to what the right hon. and learned Gentleman means.

§ The Attorney-General
If the hon. Member is not clear, perhaps he will allow me to amplify what I said. Fundamental changes in the law of this country may or may not be appropriate to a Private Member's Bill, but it seems to me to be inappropriate that they should be dealt with on a Friday in a House which is not likely to be very largely attended and when there is not much time for adequate discussion. That was not the case on the previous occasion to which the hon. and learned Member for Northampton (Mr. Paget) referred; in those days we were given rather greater time for the discussion of Private Members' Bills.

§ Sir A. Herbert
I do not quite know how all this arose. The more the right hon. and learned Gentleman explains, the more confusion he seems to create. All Private Members' Bills came in on a Friday and the discussion of the very highly controversial Measure to which the hon. and learned Member for Northampton (Mr. Paget) referred, took place in every stage on a Friday. However, the right hon. and learned Gentleman is right 2517 in saying that it is not the proper thing for a controversial Amendment to be considered on a Report stage on a Friday, but in continuing this discussion I am probably already out of Order. If there are other things that might have been done in this extremely useful Bill, may I humbly venture to give this advice which I have been giving for years past to Private Members and to bodies outside the House about this matter? And that is to put their reforms into compartments, and let the highly controversial proposal have a Bill to itself, so that other useful things are not endangered. That is the right course, I am sure. I hope that nothing that the Attorney-General has said—I am sure innocently—will even seem to detract from the might, power and majesty of Private Members' time, and our right to introduce any reforms whatever, however fundamental they may be, as they have been introduced successfully in the past, and will be, I hope, in the future.
I have only to add my congratulations to that great master of jurisprudence the hon. Member for the Isle of Wight (Sir P. Macdonald) on the most useful choice he has made of his luck in the ballot, and to acknowledge the learned and distinguished services of the hon. and learned Member for Daventry (Mr. Manningham-Buller) to the Bill. Let me add my thanks as a humble backer of the Bill for the great and learned assistance of the Law Officers of the Crown from top to bottom. It seems to me that once again the great institution of Private Members' time has, by this Bill, been strongly and admirably justified.

§ Mr. E. Fletcher
I should like to express my appreciation of the manner in which the Bill was introduced by the hon. Member for the Isle of Wight (Sir P. Macdonald). I think the whole House welcomes this Bill and joins in congratulating the hon. Member who introduced it. It is a great achievement, in such a controversial sphere of the law as divorce, to have piloted through the House a Measure of this kind, which contains at least six marked improvements in the existing law. One of the difficulties of dealing with divorce has always been to remove certain hardships without creating a fresh crop of hardships, and I think the hon. Member can take credit to himself for the fact that 2518 this Bill in its present form, will remove a large number of hardships without, apparently, creating any fresh hardships.
I think it is worth while for the House to spend a little time on the Third Reading of this Bill, if only for the fact that the Bill is in a totally different form from that in which it was when the House considered it on Second Reading. What also, I think, is a significant commentary on the use of Private Members' time is that we gave a Second Reading to a Bill whose provisions then were intended to deal with one or two minor matters, that it went up to a Standing Committee, and that as it came back to the House on Report, we found that it had not only grown to about twice its original size, but contained a number of Clauses that I venture to think are of far greater importance, and make more profound changes in the law, than what was contemplated in the original Bill. It is for that reason that I think the House is justified in spending a few minutes on this Third Reading in considering exactly what the Bill now does and, in particular, what the Clauses do that have been added since Second Reading.
It is significant, I think, that the very first Clause is itself a Clause which was not originally in the Bill but was introduced in the Standing Committee. I think it is now the most important one in the Bill, because it makes a quite radical change in the previous basis of jurisdiction of the High Court in matters of divorce. It does away with the old rule which has existed for centuries, that domicile was the basis on which a spouse could get his or her marriage dissolved. It introduces the provision that a wife who has been deserted and is resident in this country, and whose husband has gone abroad and acquired another domicile, can petition the High Court in this country on the basis of residence. I ventured earlier to seek to move a manuscript Amendment to this Clause, and I must apologise for not having put it down on the Notice Paper. I think it will be in Order to refer to it now; and I think it is of some importance because there will be an opportunity for the language of Clause 1 to be considered in another place.
When this new Clause 1 was introduced in Committee upstairs by, I think, the hon. and learned Member for Daventry (Mr. Manningham-Buller) he pointed out 2519 that it derived from a recommendation of the Denning Committee. I think the House should consider whether, in its present form, Clause 1 really gives effect to the suggestions that were made by the Denning Committee. The relevant paragraph of the Report of the Denning Committee is paragraph 82, which refers to the existing law and says: This rule acts with particular hardship on English women who marry men from the Dominions or from places abroad. A wife by law takes the domicile of her husband. If the marriage breaks down, her natural tendency is to remain with, or return to, her relatives in this country, but nevertheless in order to obtain a divorce, she has to proceed in the courts of the country where her husband is domiciled, and this is so even if they are both resident here. Then—and this is the operative sentence—the Denning Committee makes this recommendation: These modifications do not in our opinion go far enough. In particular, the 1944 Act does not meet the case where an English woman has married a man from overseas and after living with him a short time in his home land is deserted by him and, being left stranded, returns to her relatives in this country. As the law stands at present, she cannot obtain a divorce here but has to go to his country for the purpose. As I understand the proceedings in the Standing Committee, Clause 1 of the Bill is designed to remove that hardship, but, for some reason which I do not understand, Clause 1, in its present form, has what seems to me to be a quite unnecessary limiting condition. It is operative only if the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings. The question I ask myself, and which I think the House should ask itself, is, why should such a person be required, if her husband has deserted her, and she has come back to this country, her husband having committed, presumably, a matrimonial offence—why should she be condemned to live in England three years prior to the commencement of the proceedings? I should have thought that it was, at least, necessary to add words to make it clear that a wife, in the circumstances supposed, would have the right to petition if she had been ordinarily resident in England immediately before the marriage.
I fail to understand why, in order to remove this cause of hardship on which 2520 the Denning Committee reported, and from which Report this Clause is derived, it is necessary to condemn such a woman to wait for three years before she becomes entitled to take proceedings in this country. I can, of course, understand that it may be desirable to have some qualifications to prevent any abuse by a person not domiciled here and not really resident in this country or, who, indeed, never was resident; but I fail to understand why this Clause has crept in because it seems to me a totally unnecessary and unreasonable qualification before an English woman can take divorce proceedings. I would, therefore, venture to hope that the promoters of this Bill and the Attorney-General and the Government, if they are in agreement, as I presume they are, with the basic intention of giving effect to the recommendation of the Denning Committee——

§ Mr. S. Silverman
Or some of them.

§ Mr. Fletcher
Yes, or some of them. I hope the promoters will use their influence in another place in the hope that the Clause may undergo a further measure of redrafting before its passage into law. Having said that, I am bound to admit that that is the only piece of constructive criticism I have to make on the Bill in its present form. For the rest of it, I have nothing but praise and, like others who have spoken earlier, I commend it to the House. I would, however, like to support what was said by my hon. Friend the junior Burgess for Oxford University (Sir A. Herbert) with regard to the use of Private Members' time. I also was shocked by the words of the Attorney General about the use of Private Members' time. I hope we shall not get into the habit of thinking that the only appropriate subject as a matter for Private Members is something which is non-controversial.

§ Mr. Gage (Belfast, South)
I hope my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) will forgive me if I strike what I think is perhaps the first discordant note in the proceedings this morning on this Bill. I do it solely to give him points about which to reply, because I know how dull he would find it to reply to a general paean of praise. This Bill is very well intentioned, but I do not think it is quite 2521 as good as some hon. Members have declared it to be. I am not certain that it achieves all that it sets out to do. If we look at Clause 1 we find that it represents a departure from the law of domicile, and gives the wife petitioner the right to bring proceedings simply because she is resident in this country. I am not going to say whether one should depart so radically from the law of domicile or not; I think it is probable that one should, but the House should understand that this principle will apply not only to English women, but to French and German women or women from anywhere else who happen to be resident in this country. A French woman can come here and can divorce her husband if she has been domiciled for three years, and has been resident here according to the laws of the country.
It might equally be said that the same advantages should be given to her husband, but a husband petitioner must still be domiciled in this country. There might be a case where the husband is not domiciled here, but is in one of the Dominions, and has been resident there for three years. He would, however, be denied the rights that his wife would have. That seems to me to be a matter which might possibly be put right. In regard to Clause 3, I agree that the High Court should have this new ground for ordering periodical payments. But this is giving a new ground for judicial separation, and is it not already covered by proceedings for restitution? It is true that proceedings for restitution do not allow of a decree of separation afterwards, but the parties live apart anyway and they do obtain what the wife really desires, which is support and maintenance from her husband.
Under Clause 4, power is given to the courts to vary orders for maintenance in the event of re-marriage, and many will agree with that. Of course, it will mean that orders for security will no longer mean what they say, and a wife who re-marries may have them varied. That, to some extent, is a criticism, and perhaps should be considered. In Clause 5 a very desirable object is sought to be achieved. Everyone agrees that the rule in Russell v. Russell should go. I am not at all sure that that is achieved, because if we read the words Notwithstanding any rule of law"— 2522 whatever that may mean; I assume it means the decision in Russell v. Russell— the evidence of a husband or wife shall be admissible in any proceedings for divorce … That really means that it may contravene the rule as to hearsay or anything else, and it will still be admissible provided it is relevant to the proceedings. That is how the matter appears to me, and I should have thought that that was a serious criticism. With great respect to my hon. and learned Friend, I should have thought that the Clause could have been very much better drafted, for instance, in the reverse order, when it would read: In any legal proceedings no evidence shall be excluded upon the grounds only that such evidence relates to the fact or absence of sexual intercourse between persons lawfully married to each other, or tends to show that any husband is or is not the father of any child born to his wife. That deals with the rule in Russell v. Russell, and I do not think the courts would desire to admit all kinds of evidence.
Subsection (2) says: Notwithstanding anything in this section or any rule of law, a husband or wife shall not be compellable in such proceedings to give evidence of the matters aforesaid. It does not say the husband and wife who are concerned in the action, and it could mean that any person who happens to be a husband or wife shall not be compellable. I hope that these will not be considered legalistic objections. It seems to me that in a Bill such as this, where we are dealing with matters of this nature, one should pay particular attention to those things. This criticism is devoted merely to those kind of matters, though I agree with the principle which this Bill seeks to obtain. It may be possible to remedy these things in another place.

§ Mr. S. Silverman
Everybody who has so far referred to the point has been of opinion that it was a good thing to abolish the rule in Russell v. Russell. I do not propose to debate the point now. It is far too late, and nothing can be done about it. I do not know whether I am reactionary, retrogressive, or backward, but I am not usually accused of being reluctant to change things. For my own part, I should like to record my own view that the rule in Russell v. Russell was a very good rule, and in so far as it is now 2523 proposed to abolish it, I think that is a retrograde and not a progressive step. If children were born during a marriage, and were to be proved illegitimate, it was a good thing that that fact should be proved by evidence other than the evidence of the presumptive parents. I do not know what advantage is supposed to flow from the alteration of that rule.
I did not intervene in this Debate to say that, but to add my congratulations to the hon. Gentleman the Member for the Isle of Wight (Sir P. Macdonald) and others who have been associated with him in seeking to put on the Statute Book a Bill which does a number of useful and profitable things. I think that the discussion on this point has been valuable. I am quite sure that within its limited scope—and I think it is a very limited scope—the Bill will add to the social laws of this country things that might well have been added long ago. The promoter is entitled, therefore, to congratulate himself on having produced that result.
One of the other reasons why I wanted to intervene in the Debate arises out of the remarks of the Attorney General. The Bill shows in a quite significant way what are the advantages, and to some extent the demerits, of our system of private Members' legislation. I think it is time that some members of the Government acquainted themselves with what the business of the Government is with regard to private legislation. In the old days, the rule was that the Government should interfere as little as possible, and should quite definitely not take sides. That did not mean that the appropriate Minister should not, at an appropriate moment, intervene in the Debate and give the House the benefit of the Government's view, but it did mean that it should not be done in a controversial way, and that it should be done objectively and impartially with no strong lead being given either way. That was the essential difference between legislation introduced by Private Members and legislation introduced by the Government.
In the case of legislation introduced by the Government, there is a duty upon those Members who are pledged to support the Government generally to support the Government's legislation. The Government have a right in that respect and to that extent to lead the House, 2524 and to call upon their supporters and friends to agree with them. But that has never been true in the case of legislation introduced on the initiative of Private Members.

§ Sir T. Moore
On a point of Order. I cannot find anything in the Bill dealing with Private Members' legislation. It seems to be a Bill dealing with reform of our divorce laws. I understand that on Third Reading one can debate only what is in the Bill.

§ Mr. Speaker
I think the hon. Member for Nelson and Colne (Mr. S. Silverman) was replying to a remark made by the Attorney-General.

§ The Attorney-General
Perhaps I may be allowed to say this, as there seems to have been some misunderstanding about a remark I made: what I intended to say was that great changes in the law such as were involved in the new Clause standing on the Order Paper in the name of my hon. and gallant Friend the Member for Brixton (Lieutenant-Colonel Lipton), were not appropriate to be dealt with on a Private Member's Bill on a Friday—I meant in existing circumstances of Private Members' Bills. The 1937 Measure, which was introduced by the hon. Member for Oxford University (Sir A. Herbert), I think, occupied many Fridays, whereas our existing time-table does not permit that to be done. I was dealing only with the question of the inadequacy of the time available for discussion of the proposal.

§ Mr. Silverman
I think we all understood that in the first place, if my right hon. and learned Friend will allow me to say so; but we do not necessarily agree with it when we understand it. I am trying to put the other point of view. It used to be thought that the Government should not give a strong lead in regard to Private Members' Bills, but should keep well out of the picture, intervening once and once only, and then very moderately, objectively and impartially, to indicate a view, if they had a view, with some restraint, leaving it to Private Members to exercise their own responsibility whether they agreed with that view or not. On the point whether Private Members' Bills ought or ought not to be controversial, it is quite competent for my right hon. and learned Friend to hold the view that at a particular time 2525 there ought not to be a controversial Bill or Amendment, but it is equally competent for others to hold the other view. What my right hon and learned Friend said—and this is where I dissent—was that the House would not wish at this stage to introduce a fundamental or far-reaching change in the law. What he meant by that was that he did not want the House to make a far-reaching change, and that if the opportunity had been there he would have advised the House——

§ Mr. Godfrey Nicholson (Farnham)
On a point of Order. This is very interesting, but has it anything to do with the Bill? Is there not a danger, if the hon. Member is allowed to develop his argument in this way, of the whole of the afternoon being taken up with a Debate on what should or should not be the Government's attitude to Private Members' Bills? Should he not try to link his remarks to something that is in the Bill, the Third Reading of which we are now considering?

§ Mr. Speaker
I mentioned that I thought what the hon. Member was saying was in answer to a remark made by the Attorney-General, but I was about to ask the hon. Member not to develop his argument too much as we might then be getting on to another Debate.

§ Mr. Nicholson
May I point out, Sir, that that remark was not made on the Third Reading of this Bill?

§ Mr. Silverman
I am practically at the close of what I wanted to say on this point. It was only that I wanted to make quite clear that, while what my right hon. and learned Friend said may be his view, and may be the correct view, it cannot be said that the House has one opinion or another, because by reason of a Ruling of the Chair the House has not had an opportunity to decide whether it wishes to introduce a fundamental and far-reaching change or not; no one will ever know, because it was held by the Chair that it was not competent to put the question to the House. What my right hon. and learned Friend said might have been understood by those outside to be an expression on the subject by this House, whereas the House has expressed no opinion whatsoever; as far as I can see from the Order Paper, the probability is that the opinion of the House is on the other side. I will conclude by associating 2526 myself with everything that has been said by way of congratulation to those who have been closely concerned with this Bill.

§ Mr. Manningham-Buller (Daventry)
I should like to thank those who have said such kind things about the promoters of this Bill, which has met with a very favourable response generally. There have been just a few criticisms voiced in this Third Reading Debate to which I will endeavour to reply. I think that these criticisms are really on the grounds that the Bill does not go far enough. On that point I should like to say this—I think the right hon. and learned Gentleman really tried to express it, and did express it in somewhat different words. Realising that the Bill had a low place in the Ballot, I think my hon. Friend showed great courage in selecting a Bill to amend the law of divorce, because it would be clear that its title might give rise to discussions involving acute controversy, in which case there would be no prospect of the Bill reaching the Statute Book. It was for that reason that when I moved the Second Reading of the Bill, which contained only three non-controversial Clauses, I indicated quite clearly its non-controversial character.
Before the Committee stage we were able to explore to what extent the proposals could be regarded as non-controversial. As a result of discussions, conversations and inquiries in a number of quarters we were fairly confident that the additions made on the Committee stage would not arouse controversy, but would be generally welcomed. Now we come to the Report stage, on which we have made a number of Amendments. The Bill now covers to the fullest possible extent the changes in divorce law which can be regarded by people of all sections as non-controversial. If any controversial proposal were put forward today, however desirable it might be in the minds of many hon. Members, it could only have one effect, to endanger the passage of the Bill and perhaps to prevent the Bill from reaching the Statute Book. I am sure that no one would want that to happen. I believe that it was for that reason that the right hon. and learned Gentleman said what he did say. I should have deplored the raising of any controversial issue today which might have jeopardised this proposal, 2527 which so many people have strongly supported.

§ Mr. S. Silverman
In what way?

§ Mr. Manningham-Buller
I should have thought that a calculation of the probable time taken to deal with a controversial issue in the Bill in this place, the time for it to be dealt with in another place and then to come back here would convince the hon. Member that there would be more chances than one, in those circumstances, of the Bill falling by the way.

§ Mr. Silverman
How could the moving of an additional Clause, under the Rules of this House, possibly have interferred with the completion of the Report stage and of the Third Reading in this House?

§ Mr. Manningham-Buller
I really thought the hon. Member knew the answer to the question he was asking, but if he does not know it, I will give him an indication. I should have thought it quite possible for a Debate upon a controversial issue to last a good deal of today, and then the hon. Member, or anyone else who was strongly opposed to the issue, could have made a very long speech and perhaps have stopped the Bill from getting its Third Reading. Perhaps the hon. Member does not know that Bills are occasionally talked out. That has happened before, and I daresay that the hon. Member has taken some part in talking Bills out.

§ Mr. Silverman
It is true that I have seen many Bills talked out, but that was when I was on the other side of the House and when the talking out came from hon. Members of the opposite party, then sitting on these benches.

§ Mr. Manningham-Buller
No doubt the hon. Member may be able to do some talking out again, as he has done in the past, when he returns to sitting on these benches—if he is sitting anywhere at all.
The only criticisms of the Bill have come from the hon. Member for East Islington (Mr. E. Fletcher) and from my hon. Friend the Member for South Belfast (Mr. Gage). With regard to the criticism of Clause 1, the Clause is undoubtedly very important and will bring great benefit. I think the hon. Member for East 2528 Islington was under a misapprehension in the proposal that he put forward that the Clause should apply to people ordinarily resident in England immediately before their marriage. If that alteration were made it would limit the effect of the Clause, which can be used now by people who did not marry in England and who were not ordinarily resident in England immediately before their marriage. I have no doubt that the hon. Member did not intend to make such a limitation, but the Amendment he proposed would have had a limiting effect. As I understood his argument, the real point of it was that the requirement of residence for three years immediately preceding the commencement of proceedings was unnecessary and too long.

§ Mr. E. Fletcher
I am sure that the hon. and learned Member misunderstood my argument. My suggestion was that what is provided in Clause 1 should also cover the case of a wife who was ordinarily resident in England immediately prior to her marriage, so that she would not have to wait three years before being able to file a petition.

§ Mr. Manningham-Buller
I will certainly consider that suggestion, but I did not understand it was what the hon. Member suggested in the course of his speech. The mistake was no doubt my fault. At first sight it seems to me that difficulties might arise in proceedings for divorce betweeen parties married for, say 15 or 18 years, in determining whether the petitioner had been ordinarily resident in Great Britain 15 or 18 years previously.
I turn to the criticism of my hon. Friend the Member for South Belfast. It is very desirable that a woman ordinarily resident in the United Kingdom should have the facilities contained in the Clause. I am sorry if he takes a somewhat contrary view. I think he must have misread Clause 3; it does not provide any new ground for judicial separation, but merely gives the court ground for maintenance, without the presentation of a petition. I should have thought that change was desirable.

§ Mr. Scollan
I would like the hon. and learned Gentleman to deal with the question of aliens coming to this country and obtaining divorce after the qualifying period of three years.

§ Mr. Manningham-Buller
If they come here and reside for three years, becoming ordinarily resident here, they will be able to have recourse to our courts. They will be able now, in view of the changes made today, to live in Edinburgh or Glasgow—if they want to live there—for three years, and will be able to bring proceedings in a Scottish court. In the case of women who have deserted their husbands, I should hardly have thought that even in Scotland they would be likely to succeed as petitioners for divorce on the grounds of desertion by their husbands. They would have to disclose their own matrimonial offences.
With regard to the abolition of the rule in Russell v. Russell, I think the fears which my hon. Friend put forward are unfounded, though consideration will be given to his point. The hon. Member for Nelson and Colne (Mr. S. Silverman) is almost unique in being one of the very few people who are in favour of the retention of that rule. If he will look at the Denning Report he will see ranged very strongly there the arguments for its abolition. In a document with which he is perhaps more familiar, the report of the Law Society, the hon. Member will find that his colleagues express the opinion very strongly that the rule should be rescinded. In this matter he has shown himself not progressive; I should hesitate to attach to him any other label.
The Bill, although non-controversial, makes great and important changes. The value of those changes is not to be assessed by the lack of controversy. The provisions with regard to the wards of court is of great importance. I hope that as a result of our Debate today people of this country will have their attention drawn to the changes contained in this Measure. I conclude by expressing my thanks to those responsible for the Denning Report, which was most valuable in formulating these proposals; my thanks not only to right hon. and learned Gentlemen opposite for the great help they have given me, but also to the Parliamentary draftsmen and others who have helped in framing this rather complicated Measure; and my thanks to my hon. Friend the Member for the Isle of Wight for having given us the opportunity of making these much-needed changes in the law.

§ Mr. Austin (Stretford)
After listening with great interest to the variety of expert legal knowledge in support of the Bill, I intervene on one point with a great deal of diffidence. In Clause I there is the underlying assumption that the aggrieved party is always the wife. It may well be that there are hundreds and possibly thousands of wives whose husbands are abroad, and for whom a divorce is very necessary and desirable. The point I am about to put to the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) may already be covered by the law—I am ignorant of it—but the fact remains that if there is a large category of women who have been deserted in this way, there may equally well be a very small proportion of husbands in this country who have been done an injustice by their wives going abroad. I am certain that the hon. and learned Gentleman will not resent this effort to improve the Bill slightly. I hope he will look at this point and establish justice and equity for what may be a very small number of husbands who have been similarly treated by wives who are now abroad.

§ Sir Patrick Hannon (Birmingham, Moseley)
I hope I may be forgiven if I disturb for a moment or two the harmony of these pleasant proceedings this afternoon, but I really must say how much I regret the continued extension in this country of facilities for divorce. I am sorry that the junior Burgess for Oxford University (Sir A. Herbert) is not present, because I wanted to tell him of the deplorable results of the Bill which he brought before this House one Friday in 1937.
The courts today are flooded with divorce cases, and I think it is a great pity that from time to time so much thought and attention is given in this House to breaking up the family life of the country. In all the circumstances I am sure that it is lowering the moral level of our people. The facilities for divorce which now exist must give foreign communities a very poor impression of the spiritual level of this country. I daresay that there are great and abounding grievances which the provisions of the Bill will remove, but in relation to the broad principle of maintaining the vitality of our people and 2531 the sacred character of the homes of our people, this extension of the divorce law must have a most deplorable effect.
I am sorry if I appear not to join in the grateful expressions directed towards my hon. Friend the Member for the Isle of Wight (Sir P. Macdonald); I regret that, following the example of the junior Burgess for Oxford University, he has taken a course in legislation in this House which will not redound to his high reputation in the future. I enter my protest at the continued expansion of divorce facilities in this country through the procedure of this House.

§ Sir T. Moore
It grieves me very deeply to have to disagree with my good and hon. Friend the Member for Moseley (Sir P. Hannon), but I believe that the promoters of the Bill have rendered a great service to many people who have suffered great hardship and sorrow during many years of their lives. The Bill will give hope of happiness to many who are in a union which has brought them nothing but misery.
If it will be of any comfort to my hon. Friend the Member for Moseley I will tell him of a case—I could tell him many cases—in which I was interested. It concerns a Scotswoman—that is why I am so glad the Bill applies to Scotland—who married a Newfoundland soldier in 1919. The man deserted her and went back to Newfoundland, where he married again and had six children. This Scotswoman had to live with her parents here. A childhood friend of hers wanted to marry her, but she could not get a divorce because she could make no application here and there is no divorce in Newfoundland. She was thus condemned to live alone for 30 years. I brought her case to the notice of every Law Officer of the Crown during the last 25 years. In every instance the implied advice was that the only relief she could have was to live in sin. That was the advice given me by Law Officers of the Crown——

§ The Lord Advocate
For record purposes I want to point out that, while I cannot speak for my predecessors, that certainly was not the advice which the hon. and gallant Gentleman got from me.

§ Sir T. Moore
I hope that I did not imply that I had consulted the hon. and learned Gentleman himself. He has not been long enough in office for me to have done so. I certainly did refer it to the Attorney-General, and to many others.

§ Mr. Manningham-Buller
During the Committee stage my hon. and gallant Friend did not say that that advice was given to him by a Law Officer, but that it was the advice which he himself gave the woman.

§ Sir T. Moore
Naturally, any advice I gave I should base on something far stronger than my own personal opinion, and I, therefore, based it on the advice given me by the Law Officers. I do not say that it was in so many words, but that was the implied advice. The Bill will now give that woman and many other women similarly placed an opportunity of enjoying comradeship and companionship hitherto denied them under the law——

§ Mr. Scollan
But the Bill does not apply to Scotland, or to Northern Ireland?

§ Sir T. Moore
I really give up the hon. Member.

§ Mr. Scollan
Read the Bill.

Hon. Members
It has been amended.

§ Sir T. Moore
I am sorry to have to be dragged into this sort of controversy with someone who obviously does not understand what the Bill as amended seeks to do. I cannot spare the blushes of my hon. Friend the Member for the Isle of Wight (Sir P. Macdonald). He has conducted the Bill with marked skill, tact and devotion, ably assisted now and again by my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller). Both of them deserve the thanks of the House and of all women who are, or will be, affected by the Bill.

§ Lieut.-Colonel Lipton
Like the hon. Member for Moseley (Sir P. Hannon), I cannot join with unrestrained enthusiasm the congratulations which are being offered to the promoters of the Bill. I hasten to say that my reasons for modified enthusiasm are quite different from his: his views are entitled to respect, but I believe that they represent the feelings of a minority.
2533 The problem which always faces us in devising any amendment of the law of divorce is that any amendment must inevitably make divorce easier for certain people who are hardly treated under the existing law. That is inevitable, and the promoters of this Bill are to be congratulated to this extent, that they have brought forward a Bill the avowed object of which is to amend the law relating to divorce without incurring that measure of controversy which normally arises when the subject of divorce is raised in this House. It may well be that they have obviated a certain amount of controversy by designating the Bill the Law Reform (Miscellaneous Provisions) Bill, which, of course, does not convey anything to the public. It would have been less disingenuous on the part of the promoters if this Bill had been called the Divorce Law Reform (Miscellaneous Provisions) Bill.

§ Mr. Manningham-Buller
The hon. and gallant Member will see, if he reads the whole Bill, that it deals not only with divorce but also with the law relating to wards of court. It would be difficult to call it a divorce law reform Bill since it deals with children as well.

§ Lieut.-Colonel Lipton
The only Clause in the Bill which does not necessarily, although it may, affect the law relating to divorce is Clause 6, to which the hon. and learned Member has referred. In other words, seven out of the eight Clauses in the Bill amend the law relating to divorce, so the question of wards of court is only incidental. The main object is to provide facilities to men and women, who are denied them at present, for securing release from a matrimonial tie which would otherwise be indissoluble.
The hon. and learned Member for Daventry (Mr. Manningham-Buller) and my right hon. and learned Friend the Attorney-General have both been far too modest about the nature and the scope of the Bill. They have endeavoured to persuade the House that it is of limited scope, and that no drastic changes are involved. The fact is, however, that the Bill introduces important changes in the law of divorce, and to that extent it must be welcomed by all those who take an interest in this serious social problem.
I will not involve myself in the argument which took place between hon. Members and the Attorney-General on the use of Private Member's time, or the 2534 extent to which controversial issues may or may not be raised. I will only say that I prefer to accept the view of the hon. Members who objected to his interpretation, because they have long experience and speak with greater knowledge of that aspect of our Parliamentary procedure than my right hon. and learned Friend can possibly have acquired. I congratulate the promoters of the Bill on the extent to which they have made divorce easier for what is bound to be a fair number of people, because otherwise it would not have been worth while bringing in this Bill at all. Now that the country has probably realised that the Bill introduces changes in our divorce law and makes it easier for unfortunate victims to obtain their release, I hope that artificial opposition will not be whipped up outside by those who object to divorce in principle, whatever the grounds may be.
For reasons to which I cannot refer I, like the hon. Member for the Isle of Wight (Sir P. Macdonald), have received a large number of letters from people associated with the Bill to which, like him, because of their very numbers, it has been quite impossible for me to reply. What has taken place clearly indicates that a substantial majority of people and a large number of hon. Members of the House are interested in divorce law reform. They want to see changes brought about in the divorce law and they will welcome the extent to which this Bill makes divorce easier for unfortunate men and women. I hope, too, that it will persuade the authorities concerned in the matter that a Bill of this limited scope does not go anywhere near solving the problem. I trust that the discussion which has taken place on this Bill will have convinced the authorities concerned that the sooner a Royal Commission is appointed to go into the whole problem the better it will be, instead of dealing with this difficult subject in the piecemeal way in which this House has been compelled to deal with it during recent months. At present, the law of divorce in this country is such a mixture of humbug and inhumanity that even the modest proposals contained in this Bill will be welcomed.

§ The Lord Advocate
In the interests of international amity, and in order to preserve the balance of power, the voice 2535 of Scotland should at least be heard in this Debate because, by virtue of an Amendment which was carried this morning, I should point out for the benefit of my hon. Friend the Member for Western Renfrew (Mr. Scollan) that the Bill applies to a limited extent to Scotland, although it does not apply to Northern Ireland. It applies in toto to England and also to the Isle of Wight which, no doubt, will increase the attraction of that place as a holiday resort.
There are one or two misconceptions which it is desirable should be removed. Although I speak particularly from the point of view of Scotland, I shall deal first with the general position and then with a misconception which the hon. Member for Moseley (Sir P. Hannon) revealed in his speech, and I am sure he will be glad to hear the explanation I have to give in that respect. The extension of the grounds of jurisdiction, which forms the first Clause of this Bill, applied in the first instance only to England and, as I said during the discussion on the Amendment, it had to be considered in relation to Scotland.
Whatever views may be held in Scotland on the merits of that Clause—and there may be different views—I think there will be an almost unanimous opinion that if the extent of jurisdiction is increased in England, it would be anomalous if that increase were not also extended to Scotland. Again, as I pointed out during the discussion on the Amendment, it would have led to serious repercussions and difficulties in international law as between two countries, and might well have resulted in the Scottish courts not being able to recognise a decree of divorce granted under circumstances in which the case had been brought into court under the provisions of Clause 1 of this Bill. So, manifestly, it was not only socially but legally desirable that we should have uniformity.
The hon. Member for Moseley deprecated this introduction of further extension of grounds of divorce. I would point out quite seriously that there is no extension of the grounds of divorce in this Bill. What the promoters of the Bill have done is to extend the grounds of jurisdiction, but the grounds of divorce remain identically the same as they were prior to the introduction of the Bill. The 2536 Bill merely makes it possible for women in certain circumstances to have recourse to the courts both in England and in Scotland for divorce, but their grounds for divorce must be exactly the same as those which appertained heretofore.

§ Sir P. Hannon
Would the Lord Advocate not agree that the extension of jurisdiction must, inevitably, extend the facilities?

§ The Lord Advocate
I think that the hon. Gentleman is confusing the two points: namely, the extension of jurisdiction and the extension of the grounds of divorce. I concede that it will be possible for people to have recourse to courts in this country for divorce who would not hitherto have had that advantage and who might have had to go elsewhere to seek their remedy. But there has been no extension of the grounds on which divorce can be granted. That is an important distinction.
Moreover, there is nothing novel in this departure, because, as the hon. and learned Member for Daventry (Mr. Manningham-Buller) would, I am sure, agree, this is merely an extension of a principle that has been recognised in our law hitherto. In England, by the 1937 Act, the ordinary rule of jurisdiction based on domicile was departed from in the cases of desertion; and in Scotland, although it did not form part of any statutory law, the common law of jurisdiction was exactly the same. Although a woman had been deserted by her husband, say, in Scotland, and her husband had gone abroad and acquired a new domicile, she was able to bring her action for divorce in the Scottish courts on the ground of desertion because the husband had been domiciled in Scotland at the date of the commencement of the matrimonial offence.
In 1944, the Matrimonial Causes Act gave to the wives of foreigners the right of access to the courts in this country under certain conditions, albeit that their husbands were not domiciled in this country. Accordingly, there has been a historical departure in England, at least, since 1937, and in Scotland prior to that date, from the old rule that domicile, and domicile alone, provided jurisdiction in our courts. Therefore, the Bill is merely extending to certain other people in, perhaps, circumstances as equally 2537 difficult as those we have already recognised in our law hitherto, the right of access to the court, but the grounds of action must remain exactly the same.
It may be thought, as the result of the introduction of this extended jurisdiction to England and the consequential consideration of the matter in relation to Scotland, that people in Scotland, who will welcome this provision, owe a debt of gratitude to the English people who had introduced this Measure. It is not for me to try to prevent any flow of that international concordat between the two countries or any expression of gratitude, but in case it may be thought to be rather one-sided, may I point out that, by virtue of Clause 5 of the Bill, England is now adopting by statutory enactment what has always been the common law of Scotland. As I pointed out to the hon. and learned Gentleman when we were considering this matter upstairs, I appreciate that very much; it is very encouraging, because I am quite sure that if the people skilled in jurisprudence south of the Border are sufficiently careful and industrious and care to look further into this matter, there are many other improvements which they could make in the law of England by a further study of the law of Scotland. I hope this is merely an indication of the great missionary work we may be able to carry out.

§ Mr. David Renton (Huntingdon)
I deeply agree with the right hon. and learned Gentleman. I am sure there are many Members of this House who wish that he would direct his obvious abilities and energies towards persuading his Socialist colleagues to spend more time on improving the law of England in the manner he suggests instead of spoiling it in the manner in which they are doing.

§ The Lord Advocate
As Confucius once said, it is a question of perspective and ethics. Confucius said many other things, but hon. Members will pardon me if I do not refer to them in the House. By following the Scottish principle, therefore, whatever may be our views of the merits, I think there is a recognition that by our joint efforts we may improve the law of the corresponding countries.
I must take up a point which was raised by the hon. and gallant Member for Ayr Burghs (Sir T. Moore). I do not know exactly what he meant, but it is 2538 rather unfortunate if he conveyed the impression that any Law Officers give advice to people to live in sin. My recollection is the same as that of the hon. and learned Member for Daventry, that when the hon. and gallant Member referred to this matter upstairs he said that that was his own personal advice to the client. It is something which he should not wish to publicise too much. But he tried to qualify it by an expression which I did not quite understand—I do not know how one lives in sin, although not in so many words. That is exactly the manner in which he put it, but I am not inviting him to explain it further. It seemed rather strange advice that he was giving to his client.
There is one further point I should like to mention. I am sorry that the hon. Member for Nelson and Colne (Mr. S. Silverman) is no longer present. It relates to the point raised by my right hon. and learned Friend the Attorney-General in connection with Private Members' Bills. I think he made it quite clear in his intervention exactly what he meant and that he was in no way denigrating the right of the House or of Private Members to put forward their Bills in whatever manner they wished; but he was pointing out that in the time remaining at our disposal in the time-table for these Bills, to introduce any matter of a deep constitutional, legal, social and moral implication was something to which justice could not be given in the time available under our present time-table. Without going into any of the merits of the case, I am quite sure that the particular matter which gave rise to that discussion, arising out of an Amendment which was not called, is merely typical of the thing to which he was referring. An Amendment of that nature, involving as it does not only legal, but social and moral, repercussions, would have given rise to long, passionate and involved Debates which could not possibly have run within the time-table at our disposal.

§ Lieut.-Colonel Lipton
What the Attorney-General said, I think, was that the House would not wish to have a controversial issue of that kind discussed in the circumstances to which my right hon. and learned Friend has Just referred, and it was then pointed out to him that the House had had no opportunity of expressing a view on that particular statement.

§ The Lord Advocate
Obviously, the reason why my right hon. and learned Friend said that was because the House is very jealous of the powers which it possesses and would not lightly introduce into legislation any fundamental changes of the nature contemplated without full and adequate consideration. My right hon. and learned Friend felt, as I think, a lot of us felt, that matters of that nature could not be given adequate consideration by the House at its various stages in the time allotted to us under the existing procedure, because—it was obvious from the Debate this morning—there are many people who would have taken conflicting views about this. Even some of the people who were prepared to accept, and do accept, the extension of jurisdiction contained in the Bill, might very well oppose wholeheartedly and bitterly any extension of the grounds of divorce, which is an entirely different matter. Accordingly, I feel that the matter was enlarged completely out of its proper perspective and that a great deal attributed to my right hon. and learned Friend was not justified in its context.
I wish to make one answer to the hon. Member for Nelson and Colne. He stated categorically that it was not usual for the Government to put on the Whips on a Private Member's Bill, and that the Government were not in the habit of taking sides or giving a lead or directions. That is not so, because I have had researches made and I find that in the Betting (Juvenile Messengers) (Scotland) Bill, 1928, the Government Whips were put on at the Report stage, and perhaps some of the older Members will have a recollection of that. Accordingly, I should not like it to go unchallenged that the Government do not reserve the right to put on the Whips, or the Opposition do not reserve the right to put on the Whips, in relation to a Private Member's Bill, particularly, in the case of the Government, if they feel that the purposes of the Bill are adverse to the public interest. The Government must always preserve that right, because, if they do not, they are denying themselves the right, the duty and the obligation to be responsible for the proper administration of and legislation in this country.

§ Sir P. Hannon
I am very much obliged for the commentary which the right hon. and learned Gentleman made 2540 on my protest, but that does not modify my attitude in the slightest degree.

§ The Lord Advocate
That is quite understandable, if I may say so. As I said, had we gone on to the wider question, many divergent views might have been heard from both sides, but, in so far as we are concerned with the contents of this Bill and the limited extension of jurisdiction, so far as I am concerned as a Law Officer for Scotland, it is something which has more or less received universal acceptance upstairs, in this House, and in the Committee of Legal Reform to which I remitted the matter.