HC Deb 14 July 1950 vol 477 cc1727-37
The Lord Advocate

I beg to move, in page 17, line 5, to leave out from "summary," to "shall," in line 7, and to insert: made for the purposes of this Act or of any rules made thereunder. This Amendment is really designed to meet a point raised by the hon. Member for Henley (Mr. Hay) in Committee when he suggested that Clause 17 should enable application for the registration of an order under Part II of the Bill to be made in the court having jurisdiction in the place where the person entitled to payment resides. As I said earlier, it was considered that there was a valid point in his argument, but that we could meet it better by providing in the rules that application could be made by letter, supported possibly by a statutory declaration. The result is that, although the application will still have to be made to the court which made the order, it will not be necessary for the person to attend personally at that court.

Clause 26, which provides that statutory declarations and other documents shall be deemed without further proof to be the documents which they purport to be, applies only to statutory declarations made under Part II of the Bill. A statutory declaration to support a written application for registration will be made not under the Act, but under the rules, and accordingly this Amendment is designed to apply Clause 26 to such declarations.

Amendment agreed to.

The Lord Advocate

I beg to move, in page 17, line 11, at the end, to add: (2) Paragraph 7 of the Second Schedule to the Emergency Laws (Miscellaneous Provisions) Act, 1947 (which relates to the proof of affiliation orders and maintenance orders and of orders for the discharge or variation of such orders), shall apply to the registration of orders under Part II of this Act, and to the cancellation of such registration, as it applies to the variation of orders; and for the purposes of that paragraph

  1. (a) a maintenance order registered under the said Part II in a court of summary jurisdiction; and
  2. (b) any proceeding under the said Part 11 relating to a maintenance order made by or registered in such a court, being a proceeding of which a memorandum is required to be entered in the register kept by the clerk of that court pursuant to section twenty-two of the Summary Jurisdiction Act, 1879,
shall be deemed to he an order made by that court. This is the last of the series of Amendments with which we have been dealing. Its purpose is to ensure, in the case of a maintenance order made by an English court of summary jurisdiction, that proof is available when required both of the content of the order and of the fact that it is or is not registered, as the case may be. This Amendment effects that purpose by attracting and adapting the provisions of paragraph 7 of the Second Schedule to the Emergency Laws (Miscellaneous Provisions) Act, 1947, relating to the proof of maintenance orders.

Amendment agreed to.

Motion made, and Question proposed. "That the Bill be now read the Third time."

11.27 a.m.

Mr. Manningham-Buller

As this Bill owes its origin to such a large extent to the efforts made from this side of the House, it would be a pity to depart from it without saying a few words of farewell. I think all hon. Members will agree that it is a very desirable Measure, but I must say that in my opinion it contains one defect which is likely to give rise to considerable trouble in operation in the future. That defect, unfortunately, I understand, remains in the Bill to soothe Scottish susceptibilities. It is one which we sought to eliminate in the Committee stage, and it has certainly been lessened in degree by the Amendment made during that stage. But, in certain cases under the Bastardy Laws (Amendment) Act, under the National Assistance Act, and under the Children Act, 1948, jurisdiction of the English courts and of the Scottish courts will depend upon where an act of intercourse took place. This is something quite novel, and I do not believe that it will work well in practice.

Usually, before a court comes to hear and determine the issues in the case, it is enabled to decide whether it has jurisdiction to hear and to determine the case at all. But under this Bill; when certain proceedings are brought under those Acts, a court of summary jurisdiction will not know whether it has any jurisdiction at all until the conclusion of the complete trial. If, in a disputed case, the complainant alleges that an act of intercourse took place in this country, and the respondent denies it—and, indeed, may establish that it took place north of the Border—then whether or not the court makes an order against the respondent will depend whether they come to the conclusion that the act of intercourse took place north or south of the Border.

They will only make the order if they come to the conclusion that it took place south of the Border, and so they will only resolve the question whether they have jurisdiction or not at the very conclusion of the trial. I think this departure from the previous practice is likely to cause considerable difficulty; and I do not think it will be very long, notwithstanding the objections which have been raised from another part of the United Kingdom, before we shall have to have an amending Measure eliminating this one difficulty in the Bill. I do not believe that it serves any practical purpose.

I am sorry that the Government have not been able to accept the Amendment which was moved in Committee to delete this condition, which is an important condition affecting jurisdiction in these cases. I cannot think of any case in the courts of this country when, at the end of the day when all the evidence has been heard, the court may say, "It has not been established to our satisfaction that the respondent is the guilty man and, therefore, we must, while deciding that, decide also that we have no jurisdiction at all in the case." The court might have been engaged on the hearing for one or two or more days, and then find they have no jurisdiction whatsoever to hear it.

It seems to me a most extraordinary position, which will result in considerable difficulties in some of the courts of the country. After all, magistrates, quite rightly, are very careful to see that they do not act in excess of the jurisdiction they have. If they do act in excess of their jurisdiction, they may be visited with certain penalties. Now, in this category of cases, they will not know whether they have jurisdiction or not until the conclusion of the case. It seems to me to be wrong, and not to serve any useful purpose.

I hope that by making this comment on what I believe is the one remaining defect in this Bill, I shall not be thought to be departing, in any way, from the main purposes of the Bill, and from the welcome we have extended to it throughout, with our efforts to improve it. We take the view that this Bill will meet a want which has been long felt. We hope it will work well. We feel it would have been certain of working better if the Amendment we moved had been accepted.

Mr. Hay

When this Bill was read a Second time, it received general approval from all quarters. I believe that now, as we take leave of it, it is in a form better adapted to carry out in an expeditious manner the purpose for which it was intended. However, I should like to emphasise again the point my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) has raised in connection with this provision relating to affiliation orders. It is still an unsatisfactory situation. During the proceedings in Standing Committee, we did our utmost to impress upon the Government that very serious difficulties would arise from the practical point of view. We can only regret that, even at this stage, they have not been able to see our point of view.

We are here making a Statute, and we have to bear in mind that, eventually, some parts of that Statute may come before the higher courts for decision. As it stands, Clause 1 of the Bill contains what I still consider to be an inaccuracy which is bound to cause a certain amount of dissatisfaction from the point of view of a superior court which might have to consider it eventually. In our view, the reference to residence together as man and wife, on which my hon. Friend the Member for Bromsgrove (Mr. Higgs) and myself had put down an Amendment, which has not been called, does introduce to our law an entirely new sort of expression. In Committee I said it would have been far better to say out and out "co-habitation between the parties," or some other expression which would make more clear what the Government had in mind. The Under-Secretary of State for the Home Department pointed out that what they had in mind was residence together by husband and wife, but it is not clear.

In our law we have this clear definition of co-habitation and all that it means. That has been clearly settled by the courts on many occasions. It is also clear what is meant by residence in a particular place by separate persons. Here we have the hybrid expression, "resided together as man and wife." I ask the Government to look at it again and consider what is meant, and what will be believed is meant by people who have to consider those words. This is a sort of half-way house between two well-established definitions, and it is something which is a blot on the Bill as it stands.

But, generally, the Measure is going to do a great deal to help a most deserving type of persons. We have done something to improve the law relating to maintenance orders and the unhappy circumstances that arise when man and wife fall out.

11.37 a.m.

Lieut.-Colonel Lipton (Brixton)

The hon. and learned Member for Northants, South (Mr. Manningham-Buller) has endeavoured once again to establish his claim, or that of his hon. Friends, to the paternity of this Measure. One can only wish that some of the people to be dealt with under this legislation were as eager to accept paternal responsibility as hon. Members opposite have been eager to accept it for the Bill we are now discussing.

As has been pointed out already, it may well be that this new principle, of making the place of intercourse a factor in deciding jurisdiction, may give rise to some difficulties. It adds a new principle in the administration of the law in this aspect. But, as the Lord Advocate pointed out in the Committee Stage, the difficulties may not be as great as have been anticipated by hon. Members opposite. In any event, it will he for the complainant to be very careful before deciding to take action in a particular court; because the complainant will not wish to prejudice a claim by seeking to take proceedings in a court if she is not going to be in a position to establish, fairly conclusively, that the act of intercourse relating to the birth of a child took place within the area of the jurisdiction of that particular court.

The main advantage of this Bill is that it will make a little more worth-while the mass of separation and maintenance orders that are being churned out in the courts up and down the country. Unfortunately, in the past, some of these have not been worth the paper on which they are written. This Bill is to be welcomed to the extent that it makes some of these orders imposable. There is still a yawning gap in the administration of the law in this matter in the British Isles. Normally, a person has only to go to the Republic of Ireland, and nothing we are discussing can possibly apply. I hope that, some time, it may be possible to stop up that particular gap, which may operate very harshly in a number of cases. Nevertheless, this Bill has proceeded fairly happily through all its stages, and we all wish it well on the Statute Book.

11.40 a.m.

Mr. Higgs

I should like to say one word in support of the point raised by the hon. Member for Henley (Mr. Hay) on Clause 1. We are introducing here, so far as my research goes, a phrase new to our statute law: residing together as man and wife. It is, I believe, a well-established rule that, in a field like this which has been the subject of so much litigation, when a new phrase appears in the statute, the courts feel obliged to find a new meaning for it.

As has been said, the courts have thoroughly defined the state of affairs known as cohabitation, and there is no doubt, apparently, as to what is involved in residing at the same address. I read in this morning's paper that a man and wife resided at the same address in such a state of estrangement that they erected a screen between them when eating their meals. Here we have a state of affairs midway between the two conditions I have indicated. I hope that we may be able, before we bid farewell to this Bill, to know exactly what these words are intended to convey.

There is one other point to which I should like to refer. It relates to Clause 20 and to the extent of arrears of maintenance which may have accrued during the time when a husband living in Scotland has not been making payments. This Bill, for the first time, makes provision for enforcing these payments, and, therefore, one has to look carefully, as the Bill does, to these arrears, which may be very substantial. Provision is made in Clause 20 (3) for a court in Scotland to have a discretion as to whether it will or will not remit the arrears. I think that we have to bear in mind in practice—those of us who practise in the courts in this sort of case that where a court has a discretion to exercise, it will require to hear evidence before it will exercise that discretion.

The position in this country is that if a husband wants the arrears remitted he must go to the court and give evidence why they should be remitted. In Scotland under this Clause the position will be reversed. If the wife does not want them remitted, she will have to go and explain why they should not be remitted. We have gone to the trouble in this Bill to remove the gearing, as it were, to the place where the husband lives. A husband is present in Scotland in circumstances envisaged in this Clause. The husband is the person who has a court on the doorstep. The hearing takes place, and yet it is the wife who has to satisfy the court before it will exercise its discretion and keep alive the arrears. I say that that will be a hardship in practice, because it will mean that, if the wife wants to keep long arrears alive and seeks to enforce them in the future, she will lose the whole benefit of this Bill unless she goes to Scotland to explain why she wishes to do so.

I had hoped that at some stage in these proceedings, the Government would have been persuaded to view it in that light. It does arise in practice, and the courts do insist on hearing evidence before they will exercise their discretion, and we should have preferred the evidence which they would require to hear, to be that of the husband, which is the conventional procedure on the subject, and not that of the wife who might have to travel a long distance. These are matters of detail and do not derogate from the general welcome which we give to the Bill.

11.44 a.m.

Lieut.-Commander Clark Hutchison (Edinburgh, West)

I should like to express my pleasure that the Bill has got to its final stage in this House. I have been interested in this matter for nearly nine years, as a result of a case in my own constituency of which the Lord Advocate is aware. I hope that the intentions of the Bill will be carried out. Frankly, not being a lawyer, I do not like to express an opinion on the technical points raised by the hon. and learned Member for Northants. South (Mr. Manningham-Buller) and the hon. Member for Henley (Mr. Hay). I think that the broad purpose of the Bill is admirable, and I hope that it will bring relief and assistance to a great many women who have had a very rough deal in the past.

11.45 a.m.

Lieut.-Colonel Hyde (Belfast, North)

In adding my word of farewell to the Bill, I should like to say on behalf of hon. Members representing Northern Ireland constituencies on this side of the House, that we think that the Bill is now in better state than it was on Second Reading. We should have preferred it, if the Amendment moved by the hon. and learned Member for Northants, South (Mr. Manningham-Buller) and supported by the hon. Member for Henley (Mr. Hay), affecting Clause 3, had been accepted, but, apart from that, we think that this is an excellent Measure and that it will bring relief to people by whom it is much needed.

11.46 a.m.

The Secretary of State for the Home Department (Mr. Ede)

I should like to thank the House for the reception which they have given to this Measure, and for the way in which on the Committee stage and this morning we have had co-operation from both sides of the House, in a non-party spirit, in an endeavour to improve it. I never apologise for the fact that Amendments have been accepted or introduced into a Bill during its passage through this House, because that is what the House and the various stages of the proceedings are designed to secure.

I agree with the hon. and gallant Member for Belfast, North (Lieut.-Colonel Hyde) that the Measure is a better Measure now than it was when it was brought from another place to this House. I am bound to say that I do not share the view expressed by the hon. and learned Member for Northants, South (Mr. Manningham-Buller) about the origin of the Bill. It is true that it had been talked of for a long time, and one of the first things that I did when I took office was to see if something could be done to make a determined legislative effort to deal with the subject. I was not greatly helped in that matter by any heritage of documents left by the party opposite when they were in office.

Undoubtedly, we did come across a conflict of opinion between English and Scottish lawyers, and we have had to enshrine the result in this Bill. I would point out to the hon. and learned Member one of the curious things that happened during the Committee stage when, in his absence, the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) was most gallantly and efficiently leading the Opposition party. The case for the English practice was very well argued, but when it came to the Division we had the curious experience that the two Scottish Members of the Opposition declined to vote, and, in that way, I think, indicated that while, of course, they would not vote against their party they could not support them.

I had the humiliation of having the hon. Member for Coatbridge and Airdrie (Mrs. Mann), who can always be relied upon in such circumstances to place the representative of the Government in as uncomfortable a position as she can, not only speaking against me but having the pluck to vote against me. Fortunately, the Committee rejected the Amendment moved by the Opposition by, I think, 20 votes to 14, which is quite a good majority for these days even on the Floor of the House, and is, of course, simply overwhelming when it is secured in Committee.

Personally, I regret that the victory of Bannockburn should have been repeated on this occasion. If the hon. and learned Gentleman can arrange a Flodden Field in the future, I am not at all sure that I should not feel that there was a very great deal to be said for the line of argument he adopted, but, at any rate, we have managed, I think without doing any substantial injustice, to ensure that a certain number of scoundrels who on both sides of the border have been evading their liability will in future be amenable to the courts of the country, and will not be able, merely by going north or south of the Tweed, to escape their liability. They will in future have to contribute what the law says they ought to contribute.

I am not going to enter into a new argument about the question of a man and wife living together. I thought that my hon. Friend the Under-Secretary gave a very able answer to that question during the Committee stage. I am not at all sure that the erection of a screen at breakfast time between the two parties is not almost proof that they are living as man and wife. I have heard complaints on occasions that the size of "The Times" at the breakfast table, when one is trying to discover what happened to the speech one delivered the previous day at the House, as constituting a barrier, can be regarded as almost a matrimonial offence.

The hon. Member for Bromsgrove (Mr. Higgs) raised the question of arrears. In my experience as a magistrate, the question of what should be done when substantial arrears have accumulated is very often a matter of great concern. It is often wondered whether the money will ever be got out of the man. On occasions, I think that the woman is well served when the accumulated arrears are wiped out or reduced and it is made quite clear to the man that arrears must not be allowed to accumulate in future.

There is the problem I dealt with in relation to the jurisdiction of the courts and the place where the matter has to be heard. I think we shall find that, in the long run, the position created by the Bill will help a good many women to get money they would not otherwise have got. With the limited amount of knowledge we have on the future working of the Bill, I am not going to put it any higher than that. This is a Measure to which both sides have made a contribution. Perhaps, as viewed by the lawyers, some of it may not be very good law, but I believe that the whole of it is most excellent justice, which, after all, is what the House has attempted to achieve. I thank the House sincerely for the way in which the Bill has been treated.

Question put, and agreed to.

Bill accordingly read the Third time, and passed with Amendments.