§ Order for Second Reading read.
§ 11.5 a.m.
§ The Under-Secretary of State for the Colonies (Mr. Cook)
I beg to move, "That the Bill be now read a Second time."
The purpose of this Bill is to widen the scope of the Indian and Colonial Jurisdiction Acts in two directions, one at home and the other overseas, first by extending the provisions of the Acts to British subjects domiciled in Northern Ireland, and secondly by enabling the Acts to be extended to Protectorates, protected States and Trust Territories. The object of this Bill will be better understood by giving some account of the purpose of the Indian and Colonial Divorce Jurisdiction Acts which it amends. The Indian and Colonial Divorce Jurisdiction Act was passed in 1926 and was amended in 1940.
2636 Until the 1926 Act was passed the general rule of English law was that a decree of divorce could only be granted by the courts of the country in which the parties were domiciled; that is to say, the country where they had their permanent home. As many aggrieved parties were resident in India or the Colonies for lengthy periods, the inconvenience of waiting for redress until coming home, in addition to the cost of doing so, caused considerable hardship. The 1926 Act removed this hardship in the case of British subjects of English or Scottish domicile by the simple expedient of substituting residence for domicile.
Section 1 of the Act provided that a divorce granted on this basis by a competent Indian court to British subjects to whom the Act applied should be recognised as valid by the courts of Great Britain. Further, Section 2 of the Act enabled the same provisions to be applied by Order in Council to any part of His Majesty's Dominions other than a self-governing Dominion, and it has been so extended to the Colonies of Hong Kong, Jamaica, Kenya and Singapore. Time, however, has shown that the 1926 Act was not sufficiently comprehensive and needs amendment. As I have already mentioned, that Act applied only to British subjects of English or Scottish domicile; it could not apply to British subjects domiciled in Northern Ireland because at that time no form of divorce was obtainable in Northern Ireland. This position, however, was rectified by the Matrimonial Causes Act, 1939, of Northern Ireland, and, that being so, there is now no reason why the Indian and Colonial Divorce Jurisdiction Acts should not also be extended to British subjects who have their domicile in Northern Ireland. This Amendment is effected by Clause I, which extends the Acts of 1926 and 1940 to persons domiciled in Northern Ireland.
Moreover, owing to the wording of Section 2 of the 1926 Act, its provisions could not be extended to Protectorates, protected States and Trust or formerly Mandated Territories, as these territories are not part of His Majesty's Dominions. The exclusion of these territories from the scope of the Act may have been due to the fact that at that time the problem was either not so acute, as in India or in 2637 the larger Colonies or had not arisen at all.
An opportunity to remedy this position occurred in 1940 when the 1926 Act was amended to deal with changes in the English divorce law introduced by the Matrimonial Causes Act of 1937; and although the need for extension to Protectorates, protected States and Mandated Territories had by then arisen, the amending Bill unfortunately escaped the notice of the Colonial Office until too late, having regard to the circumstances of the war, to secure the amendment required.
The present position, therefore, is that the facilities for the divorce of non-domiciled persons which this Act provides cannot be made available in these large and in many cases rapidly developing territories, although available in those to which the Act has been extended, and can be made available by Order in Council to any other Colony. It stands to reason that the position I have indicated gives rise to some curious anomalies, particularly in the case of British territories in East Africa. For example, it is possible for non-domiciled parties to bring an action for divorce in the Supreme Court of Kenya because, as has been mentioned, the Indian and Colonial Divorce Jurisdiction Act has been extended to Kenya, but it is not possible to bring such an action in the courts of the neighbouring Protectorates of Northern Rhodesia, Nyasaland and Uganda, nor in the Trust Territory of Tanganyika.
There has been a considerable development of the resources of these territories in recent years with the result that, at any rate in Northern Rhodesia and Tanganyika there are large and growing British non-domiciled populations, and it is clear that the number of cases in which hardship is caused by absence of facilities under the Act increases with the increase of population. It should be mentioned that representations have been made at various times by the Governors of Northern Rhodesia, Uganda and Tanganyika for rectification of the present anomalous position. Clause 2, therefore, provides for the application of the 1926 and 1940 Acts to the Protectorates and Trust Territories in the same way as they can at present by extended to Colonies. This simple procedure cannot be used in the case of protected States since in those territories there is no such jurisdiction as 2638 would entitle Parliament to confer powers on the local court. It is provided, therefore, in Clause 3 (1) of the Bill that if the local Legislature confers such powers on the local court His Majesty can, by Order in Council, provide that the decree of the local court shall be recognised here.
The Federation of Malaya provides a further complication since two of its 11 components are British settlements and, therefore, part of His Majesty's Dominions and, by themselves, could be dealt with under Section 2 of the 1926 Act, while the other nine are protected States. Clause 3 (3) of the Bill provides for treating the whole area in the same way as a protected State is treated under Clause 3 (1). Clause 4 merely effects a minor Amendment to the 1940 Act. Clause 5 is a saving Clause in respect of the legislative powers of the Northern Ireland Parliament, and is required in view of the terms of Section 6 of the Government of Ireland Act, 1920. The original title of the Acts which this Bill amplifies and amends has been dropped in favour of the present title since, under Section 17 of the Indian Independence Act, 1947, these Acts ceased to apply to India. I hope the House will agree to the Second Reading of the Bill.
§ 11.13 a.m.
§ Mr. Manningham-Buller (Northants, South)
The Under-Secretary has read very well an explanation of what this Bill is meant to do. It might have been a little easier to follow if he had read it a little more slowly. Indeed, it might have been a little easier to follow what this Bill was intended to achieve, if there had been attached to the Bill a condensed version of the explanatory memorandum which the Under-Secretary has now read out to us. However, I am sure that the House is grateful to him for his efforts to explain what is not a very easy Bill to understand merely at a quick perusal.
Really to understand the scope and effect of this Bill one has to make a very considerable study of the Indian and Colonial Divorce Jurisdiction Act, 1926, and also of the amending Act of 1940. I was astounded to hear that the Under-Secretary say that the amending Act, at the time of its passage through both Houses of Parliament, entirely escaped the attention of the Colonial Office. I hope that the Colonial Office will pay 2639 attention to these things in future and not let important amending Bills such as that escape their attention when those Bills are passing through Parliament.
The first point that emerges from this Bill, having regard to the two earlier Bills, is the urgent necessity for consolidation. The first Act is entitled the India and Colonial Divorce Jurisdiction Act. I think I am correct in saying that a decree for dissolution of marriage can no longer be made in India under that Act, so that "India" in the title is completely inappropriate. The amending Act applied to Burma; that has gone. I think that the Act once applied to Ceylon, and that has gone. For the benefit of practitioners and those who have to administer the jurisdiction which this Bill seeks to confer I do stress as strongly as I can the urgency of the need for consolidation. I hope that when the right hon. and learned Gentleman replies he will say that steps will be taken to that end at the earliest possible moment.
We on this side of the House are not opposed to the principle of this Bill or, indeed, to its object. There are, however, one or two matters which I should like cleared up and put beyond doubt because, quite frankly, I am not sure, having spent some time considering both the earlier Acts, what the position is. Under the 1926 Act there was jurisdiction to grant a decree for dissolution of marriage in India only if two or three conditions were satisfied. I refer to Section 1 (c) in its amended form. One was that the petitioner resided in India at the time of the presentation of the petition. The second was that the place where the parties had last resided together was in India. The third was that no decree for dissolution of marriage could be made on the ground of adultery, cruelty or crime, except when the marriage was solemnised in India or the matrimonial offence was alleged to have taken place in India.
Putting the matter quite broadly, and, in consequence, perhaps a little inaccurately, it therefore meant that the facilities under the 1926 Act were really available only where there was residence in India, marriage in India or the matrimonial offence in India. There was considerable power of adaptation given 2640 under that Act and the amending Act. I want to know whether it is the intention to apply similar provisions under this Bill to all the territories to which the provisions of this Bill may be extended. I think we should be clear as to whether it is the intention that notwithstanding residence in the protected State or trust territory there will be jurisdiction to grant a decree in that territory only if the territory is the place in which the parties last resided together, or if it is the place where the marriage was solemnised, or if it is the place where the alleged matrimonial offence took place.
I ask that because I think it should be made quite clear, or as clear as it can be made, what are the circumstances under which persons domiciled in this country but resident—or one of them resident—in those territories will be able to avail themselves of the jurisdiction extended by this Measure. I should like to give further consideration to whether these provisions are not perhaps somewhat unduly restrictive. I ask that question because I want to hear the view of the right hon. and learned Gentleman upon it.
There is one other matter to which I must draw attention, namely, that under the 1926 Act there was power to make rules prohibiting or restricting the exercise of the jurisdiction where proceedings for the dissolution of marriage had also been instituted in England or Scotland, Presumably there is a corresponding power in this country, in appropriate cases, to stay proceedings where it is more suitable that the matter should be determined overseas. I observe that while this Bill, and the preceding Acts which it is sought to amend, would give power to make rules dealing with such matters as maintenance and custody, there is not, so far as I can see, any power under the Act of 1926 as amended, to make rules dealing with variation of settlements and a settlement of a wife's property, two matters which frequently have to be considered and are often contested after the grant of a decree of dissolution of marriage. It may be that the omission of a rulemaking power in that regard is quite deliberate.
It may be the view, and I should like to know whether it is, that where the parties are domiciled in England and 2641 where the settlement was made in England, that any proceedings for variation of settlement or for settlement of the wife's property should take place in the courts of this country rather than in the courts of, say, Tanganyika, Kenya, or Northern or Southern Rhodesia. I should be grateful if the right hon. and learned Gentleman would deal with that point.
I am told that it is felt that the present rule-making powers do not entirely eliminate the possibility of conflict arising where, for instance, proceedings may be started by one party in Northern Rhodesia and by the other party in England. I do not want to take up time by going into details of the rules. I would merely ask the right hon. and learned Gentleman to say that consideration may be given to revision of the rules at the same time that consideration is given to consolidation of these various Measures.
The Under-Secretary of State, in moving the Second Reading, did not tell us—perhaps he could not—the extent to which use has been made of the Act of 1926 or, indeed, of that Act, since it was amended in 1940. Obviously, a strong case exists for departing from the old rule of domicile where parties are resident outside this country for considerable periods of time while remaining domiciled in this country. The right hon. and learned Gentleman may well remember that on this side of the House we were to some extent responsible in the last Parliament for introducing and getting passed a Bill which made another inroad into the old rule of domicile. We feel that the Bill meets a need and is desirable, but that the points which I have raised should be made clear. Subject to receiving a satisfactory answer I can say with some degree of assurance, in view of the quiet reception that it has had in this House so far, that the Bill will have a speedy passage to the Statute Book.
§ 11.25 a.m.
§ Mr. Eric Fletcher (Islington, East)
The hon. and learned Member for Northants, South (Mr. Manningham-Buller) has just said that in his opinion there is a considerable case for making a departure from the normal rule that domicile should be the test of jurisdiction in matters of divorce.
§ Mr. Manningham-Buller indicated dissent.
§ Mr. Fletcher
I understood the hon. and learned Gentleman to say that he thought there was a case for making a further departure from that rule.
§ Mr. Manningham-Buller
Perhaps the hon. Gentleman will forgive me for interrupting him to say that I was applying my observations to the Bill and that I mentioned, in passing, the inroad that we had made under the Law Reform (Miscellaneous Provisions) Act in the last Parliament. I was not expressing any view, or seeking to do so, on the question, which is worthy of consideration, whether further inroads might not also be desirable upon the old law of domicile.
§ Mr. Fletcher
I am much obliged to the hon. and learned Gentleman. I rather thought he expressed a principle more widely than he intended to go.
The House is being advised to make a further inroad into the old doctrine of English and Scots law that domicile should be the test of jurisdiction in the courts. It was for many years regarded as of paramount importance that people of English domicile should be divorced only in the courts of this country and, similarly, that persons of Scottish domicile should be divorced only in the Scottish courts. That was so, irrespective of where they happened to reside. It was, however, found in the course of years that hardship resulted to persons who, though they were of English or Scots domicile, resided abroad for considerable periods, either in India, in other parts of the Commonwealth or in a foreign country. Public policy was thought to require that whatever hardship they might suffer from not being able to get divorce in the courts local to their residence was outweighed by the general consideration that people of English domicile should have their matrimonial affairs decided in the courts of this country, and similarly with Scotland.
That principle that domicile determines matrimonial status is not of world-wide observation. A great many other civilised countries do not insist that their courts can only deal with matters of divorce among parties domiciled in those countries. In fact, to an increasing extent, countries are inclined to adopt residence 2643 as a test for divorce and because of that fact much anomaly and confusion has resulted. It was found during the past century, as the demand for divorce grew, that some exceptions should be made to the general rule of English and Scots law. This House and public opinion have always supported the extensions that have been made from time to time to enable English and Scottish domiciled persons, when resident for long periods in the Commonwealth, to obtain divorce in the countries in which they are resident.
The hon. and learned Member pointed out that the House has dealt with that subject on a number of occasions by piecemeal legislation, with the result that today the position is very complicated. It is by no means easy to ascertain the law or to advise people, and, in passing, I should like very strongly to support the plea of the hon. and learned Gentleman that an early opportunity should be taken to consolidate the law on this subject.
Before that is done I imagine that the Government will wish to consider very seriously whether any further departures should be made from the principle of domicile, because, logically, it is very difficult, once a departure is made, to see where the line can be drawn. I would not for a moment urge that this country should abandon the basic principle that domicile should be the test in divorce. I believe that we should get into serious difficulties if we adopted the kind of provisions which apply in some of the States of the United States, such as Nevada, where the courts give themselves jurisdiction to dissolve the marriages of persons merely because they are resident there for quite short periods and irrespective of where they are domiciled or have their permanent homes. The inconveniences and abuses which result from a departure of that kind from the basic principle of domicile are very serious.
I am not clear from what has been said this morning to what extent the Colonial courts and the courts in some of the Protectorates will have jurisdiction to dissolve the marriages of English, Scottish and Northern Irish people. I am not sure whether the Colonial and Protectorate courts will have jurisdiction if one of the parties is resident there merely for a short 2644 time. I imagine that they will only have jurisdiction if both parties are resident there for a minimum time. It is desirable that whatever provisions are made by the Orders in Council which can be made under the Bill and the Acts should be unified and clarified. It is also important to make it quite clear whether the Colonial, Indian and Protectorate courts have concurrent jurisdiction with the English courts or whether the jurisdiction of the English courts with regard to matters of settlement, custody of children, and so forth, is necessarily ousted if the Commonwealth and Colonial courts exercise their jurisdiction.
As this subject will necessarily concern more and more people as time goes on it would be well worth while for the Government to consider not only the consolidation of the law on the subject but also the publication in a convenient form of the relevant Orders in Council made under the various Measures which have been passed.
§ 11.35 p.m.
§ Lieut.-Colonel Hyde (Belfast, North)
I do not propose to follow the hon. Gentleman the Member for Islington, East (Mr. E. Fletcher) in his argument as to how far it is advisable to depart from the principle that domicile should be the test in divorce, but I should like to make a few general observations because the Bill particularly affects Northern Ireland.
I am sorry that my hon. Friend the Member for Belfast, South (Mr. Gage) is not here. He has taken a particular interest in this Measure from the time that it originated in another place. Unfortunately, he recently contracted measles, and although he has now recovered, he is not out of quarantine and he did not, of course, wish to communicate that complaint to any hon. Members, particularly not to any of the hon. Members opposite. However, I have had the opportunity of discussing the Measure with him through the non-infectious medium of the telephone and also with the other hon. Members who represent Northern Ireland constituencies and sit on this side of the House, and I can say that, in principle, we give it a warm welcome subject only to a few relatively minor qualifying observations which I now wish to make.
2645 The Bill affects Northern Ireland in a proportionately greater degree than it does England and Scotland, because the Acts of 1926 and 1940 did not apply to Northern Ireland when they were passed. The reason for that was that in 1926 there were no facilities whatever for divorce through the medium of the civil courts in Northern Ireland. The position there, until 1939, was the same as it was in this country before 1857; it was only possible to obtain a divorce through the expensive procedure of a Private Act of Parliament.
There are certain differences between the Northern Ireland divorce laws and the divorce laws in this country. I do not think that it is necessary for me to trouble the House with these differences, but they may become pertinent in cases where there may be any conflict of jurisdiction between the courts of Northern Ireland and the courts of Colonial and Protectorate territories.
There is no wish among the people of Northern Ireland in any way further to facilitate divorce, and I do not think that it can be said that the Bill does that. It removes certain disadvantages, and even hardships, which are met by citizens of Northern Ireland who are resident in Colonial and Protectorate territories but are not domiciled there. In recent years there has been a very considerable emigration from Northern Ireland to the Colonies and Protectorates and other parts of the Commonwealth. Many men go out to take jobs there but they always intend to return to their native Ulster after they have spent their working life in the Commonwealth, and so they do not surrender their Ulster domicile. It seems that there has been some hardship for that reason.
A case recently came to my notice of a man who went to one of the West African Colonies, some years ago. He married out there and his wife left him and went off with another man. He tried to begin divorce proceedings there, but then realised that any decree that he obtained in the West African courts would not be valid in Northern Ireland. He was, therefore, put to the expense of returning from the Colony to Northern Ireland and waiting until he could present his petition there. I am glad to say that such a situation will be rectified by the present Bill.
My hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) 2646 referred to a possible conflict of jurisdiction and mentioned that the Probate and Divorce Bar Association were satisfied that there were certain provisions under the Bill to make rules respecting the position which is likely to arise when, for instance, two petitions are filed simultaneously in two different courts by the opposing spouses. I am not altogether satisfied that there is sufficient power under these rules to resolve a possible conflict with the courts in Northern Ireland.
As the House is aware, this Measure has originated with the Colonial Office, but there does not seem to have been sufficient consultation between the authorities here and the relevant and interested authorities in Northern Ireland. For instance, I have been in touch with the Northern Ireland Bar Association and the Northern Ireland Law Society. Neither knew anything about this Measure, nor had they been consulted in any way, and I suggest, with all respect, that at some stage of the proceedings on this Measure the views of those two authorities should be obtained by the right hon. and learned Gentleman. It seems that the Measure has been agreed simply between the Minister here and the Minister in Northern Ireland or, possibly, between one set of civil servants here and another set in Northern Ireland.
Difficulties may also arise in regard to settlements, and particularly where power is sought to vary a settlement. That is pertinent in Northern Ireland because, where the property of a wife consists of land, it is administered not under the Acts which prevail here but under the old Settled Land Acts which still operate in Northern Ireland. Then there is the possibility, which ought not to be overlooked, that a decree might be granted in a Colony or protected territory on grounds which are not recognised by the courts in Northern Ireland. Such a contingency would be offensive to the majority of people in Northern Ireland and might encourage petitioners who were unable to obtain divorces in Northern Ireland to go to a Colony for the purpose of doing so.
I associate myself with the remarks made as to the need for a consolidating Act. It is not by any means simple, even for a lawyer, to follow the provisions contained in the two principal Acts and now 2647 in the Bill before the House—for instance, the Section in the amending Act of 1940 which relates to the jurisdiction under the principal Act in the case of a husband's change of domicile. The effect of that Section is that where the wife is the petitioner in the Colony or protected territory and brings a petition alleging desertion, and the husband is domiciled in England or Scotland and changes his domicile between the time that the period of desertion began and the time of the presentation of the petition, the courts shall have jurisdiction and the decree shall be recognised in England and Scotland. I take it, from Clause 1 of the present Bill, that that Act would also apply to a case where the deserting husband had a domicile in Northern Ireland at the time that the period of desertion began, but changed his domicile between that date and the time of the presentation of the petition. Would the Attorney-General confirm that this does apply to Northern Ireland?
Subject, then, to those few qualifying observations I repeat that the Ulster Members on this side of the House welcome the Bill, not merely as removing a hardship and even an injustice suffered by Ulster non-domiciled residents in various parts of the Commonwealth, but also as emphasising a factor which, I submit, should never be lost sight of, namely, that Northern Ireland is an essential and integral part of the United Kingdom.
§ 11.45 a.m.
§ Lieut.-Colonel Lipton (Brixton)
My hon. Friend the Under Secretary of State for the Colonies will excuse me for saying that he is probably relieved at not having to reply to the various points put forward by hon. Members in this Debate. As my hon. Friend pointed out in his introductory remarks, this Bill widens the scope for divorce, but it is quite impossible to introduce reform in any sphere of our matrimonial laws without making divorce facilities easier and cheaper for the parties concerned.
Further clarification is needed of his reference, on more than one occasion, to the fact that the Bill is intended to provide increased facilities for British subjects who might find themselves in various parts of the world outside the United Kingdom. I hope I am right in assuming that the nationality test is not applicable 2648 in this case. Surely it will be possible for a person technically domiciled in this country, irrespective of nationality, to take advantage of the facilities which this Bill is intended to provide? It may well be that a Stateless person, or one who is foreign by nationality, domiciled in this country may go to one of the Colonies for business or for a protracted stay. I take it that such a person, notwithstanding that he does not happen to be a British subject, will, nevertheless, have access to the courts in the Colonial or other territory concerned.
The hon. and learned Member for Northants, South (Mr. Manningham-Buller) made the remark, which afforded me some relief, that he found this Bill somewhat difficult to follow and I have probably found this Bill even more difficult to follow than he did. It is certainly a complicated Measure, but I do not think that the time has yet arrived when the law on the subject should be consolidated because it would not serve a useful purpose if we consolidated, and in that way perpetuated, an unsatisfactory state of affairs. Much more has to be done in the way of reforming our matrimonial laws before we are in a position to consider any really wide or comprehensive Measure of consolidation. Nevertheless, there is one point to which the hon. and learned Member referred which calls for some speedy ratification—the question of what circumstances will confer jurisdiction in these various courts that we are now considering. In defining those circumstances I hope that the draftsman will not be unduly restrictive, and that the circumstances will be interpreted in the most generous terms possible consistent with the public interest.
The primary purpose of this Bill being to make divorce cheaper and easier in certain circumstances, it occurs to me as curious that the words "Divorce Jurisdiction" should be included in brackets in the Title of the Bill. It is all the more curious because, in previous Acts, such as the 1926 and 1940 Acts, those words are not bracketed. There is probably some very good reason for it, because I know that the persons responsible for drafting Bills of this kind do not do these things for no reason at all. Perhaps my right hon. and learned Friend will be able to say why it has been found 2649 necessary, or why it is considered desirable, that the words "Divorce Jurisdiction" should be used in this way, as if it were a kind of offshoot or subsidiary purpose of the Bill, whereas, in the 1926 and 1940 Acts, these words were not so bracketed.
Previous speakers have referred to the question of domicile. I think it is correct to say that this Bill makes a further inroad into that principle. I am not as alarmed as my hon. Friend the Member for Islington, East (Mr. E. Fletcher) at the prospect, because the law of domicile is, in so many respects, so artificial and so outmoded that force of circumstances has compelled a further departure from this principle whenever any measure of reform is introduced.
The other question I would like to ask is this. It is, of course, the fact that these facilities have not yet been extended to certain Colonies within the British Commonwealth. Is it intended, to avoid any mishaps such as occurred on a previous occasion, to take advantage of the Order in Council that will be promulgated in due course under this Bill to include some Colonies which are at present excluded, because this would provide a further opportunity of tidying up any gaps that may exist so far as the Colonies are concerned?
There is one further difficulty in which practitioners will find themselves in studying this Bill or in trying to give effect to the Act. It is extraordinarily difficult to find in any compact form a list which shows which are Protectorates, Trust Territories and Protected States, to which reference is made in the Bill. It is true that the interpretation Clause states what these terms mean, but there is nothing in the Bill, or, so far as I can judge, anywhere else, which sets out in clear, simple and comprehensive form what are all the Protectorates, Trust Territories and Protected States to which this Bill may eventually apply if an Order in Council is extended to bring them within the scope of the proposed legislation.
For example, in one case which I know, the administration of jurisdiction is shared with Australia and New Zealand. I do not know if any British subjects or other persons domiciled in this country are resident in that territory, but that may be a source of some difficulty at a later 2650 date if it is ever proposed to apply an Order in Council affecting that particular territory. None the less, as the hon. and learned Gentleman the Member for Northants, South, has indicated, this Bill is non-controversial, and I have no doubt that it will proceed through its various stages without undue difficulty. It makes a further modest but useful contribution towards clearing up a few of the many anomalies that still exist in our matrimonial law.
§ 11.53 a.m.
§ The Attorney-General (Sir Hartley Shawcross)
While not expecting to command the applause of the listening Senate in connection with this perhaps less than epoch-making Bill, I would like to express my appreciation of the solid but sober support which has been given to it, and which is demonstrated by the unanimous absence of over 600 of our colleagues, who have denied themselves the mental stimulation, if not the physical exhilaration of taking part in this Second Reading discussion.
I should also like to thank the hon. and learned Gentleman the Member for Northants, South (Mr. Manningham-Buller) for having kindly written to me about some of the technical points arising in connection with the Bill, which has enabled me to deal with them, either by writing to the hon. and learned Gentleman in reply, or by preparing myself in advance on the points which I knew he wanted to raise. I am grateful to him for doing that. It promotes the efficiency of our business when technical matters of this kind are taken up in advance so that those who have to deal with them on the Floor of the House may inform themselves in advance, if they can, of what the answers may be, and that I have endeavoured to do.
There is not a great deal that I can add, so far as the general aspects of this Bill are concerned, to the eloquent and moving speech of my hon. Friend the Under-Secretary of State for the Colonies, but the important thing to remember about this Bill is that it establishes no new principle of law whatever, no new machinery, and creates no new jurisdiction of which we have not already had considerable experience. All that it seeks to do is to extend to the Protectorates and Trust Territories a jurisdiction which has 2651 been in operation, I think with convenience, in other parts of the Empire ever since the original Bill was passed in 1926, enabling the courts of these territories, under local rules, to exercise jurisdiction on the grounds which are specified in Section 1 (1, c) of the 1926 Act.
§ The Attorney-General
There is no question of modifying in any respect whatever, the grounds upon which the existing jurisdiction may be exercised. All that this Bill seeks to do is to extend that jurisdiction mutatis mutandis to the Protectorates and Trust Territories.
It is true, of course, that the 1926 Act itself did, and did deliberately, depart from what was then the ordinary rule basing jurisdiction in divorce exclusively on domicile, and did produce a situation in which there might, at least theoretically, be a conflict of jurisdiction between the courts of domicile and the courts which were given jurisdiction under the Acts. That, of course, is a conflict which would not frighten the hon. and learned Gentleman opposite, who himself added to it by the important piece of legislation for the introduction of which he was responsible—The Law Reform (Miscellaneous Provisions) Act, 1949—in which I think I assisted him a little in securing the assent of the House. Indeed, there had been other Acts—the Matrimonial Causes Act, 1937, and the War-time Marriages Act, 1944—which recognised that there were cases in which a similar conflict was justified.
I think we have always taken the view that, although theoetically conflict between two courts might arise in this kind of case, it is a disadvantage that we ought to put up with, because of the hardships which would otherwise have resulted from the operation of the exclusive rule basing divorce jurisdiction on domicile, and should permit people in these territories, in fact, being able to obtain release on the grounds which entitled them under the ordinary law to be released. But that conflict is a matter which does not arise from and is not affected by the present Bill in the slightest degree, except that it arises in relation to a new group of courts in new territories and Protected and Trust Areas.
2652 Under the principal Act, in Section 1 (4, c), rules may be made for the prohibition or restricted exercise of jurisdiction in Colonial territories in cases where proceedings for dissolution have been instituted in the courts of domicile. In fact, rules are laid down under that Section to mitigate any inconvenience which might arise from the conflict of jurisdiction, and to assure that where proceedings were covered in the court of the domicile, the court of the Colonial territory should not enter upon the matter. I do not think that anybody now suggests that we should provide in this Bill any different machinery from that which already exists.
Indeed, I do not think it would be possible to do it in this Bill. The matter could only be dealt with by some general legislation which covered not only the 1926 Act, but the 1937 Act and the 1944 Act as well, where the same kind of problem arises. It might be attractive to try and tidy up the apparent conflict a little more than has hitherto been done, but the conflict is merely theoretical rather than practical, and the inquiries which I have made into the matter suggest that, in practice, no difficulty has been experienced in the past in dealing with the matter.
There is, of course, the further point that under Section 1 (1, d) of the 1926 Act, the court of the Colonial territory is entitled to refuse to exercise its jurisdiction if it is not satisfied that it is in the interest of justice and desirable that the matter should be determined in the Colony. No doubt all the incidental matters which may arise in the course of a petition for divorce certainly could, and would I have no doubt, be taken into account by the Colonial court in deciding whether or not it was in the interest of justice for the Colonial court to enter upon the petition.
That, I think, covers the general points which the hon. and learned Gentleman had in mind, but he raised specifically the case of the variation of settlements of the wife's property. The jurisidiction arising under this Bill is, as I have already explained, that created by Section 1 of the 1926 Act, and that Act does not create any jurisdiction in regard to the variation of settlements. That jurisdiction arises in 2653 this country under the Supreme Court of Judicature Act, 1925, and a Colonial court would not have jurisdiction to vary settlements. That is a matter which would have to be dealt with on an application in the ordinary court under the 1935 Act to the English court. What we are doing by this Bill will not affect the position as to that.
I come now to the points raised by the hon. and gallant Member for Belfast, North (Lieutenant-Colonel Hyde), and I can give him, briefly, an affirmative answer to the technical points he raised. But there was one comment which I should like to take up with him, and that was in regard to the question of consultation in Northern Ireland. There has been the fullest consultation with the Government of Northern Ireland about this matter, and the Government of Northern Ireland expressly decided to ask that this Bill should be extended in its present terms to Northern Ireland. It would have been wholly improper—and I would have expected the hon. and gallant Gentleman to be the first to make an objection—if His Majesty's Government had attempted independently to communicate with the Northern Ireland Bar and Law Associations.
That is entirely a matter for the Northern Ireland Government in deciding whether or not they want to ask Parliament here to extend a Measure to Northern Ireland. No doubt the hon. and gallant Gentleman will direct personally to the Government of Northern Ireland the criticism which he has seen fit to make about the matter in this House. It would not be appropriate for me to defend the Government of Northern Ireland here. All I can say is that we entered into the fullest consultation with them, and I have no doubt at all that they dealt with the matter properly and consulted those parties whom they thought ought to be consulted. But if the hon. and gallant Gentleman has any criticism to make, no doubt he will direct it to the appropriate Minister for Northern Ireland.
§ Lieut.-Colonel Hyde
I did not suggest that there had not been consultation between the Colonial Office or between the right hon. and learned Gentleman's Department and the Government of Northern Ireland. What I said was that there had been no consultation with these 2654 professional associations. I must say that I would not regard it as improper for the views of these associations to be obtained.
§ The Attorney-General
I am much obliged to the hon. and gallant Member for saying that he would not regard it as improper for my Department—not that my Department is involved in this matter—or the Colonial Office or the Home Office in this country to go to various organisations in Northern Ireland and to consult them behind the backs of the Northern Ireland Government. If that is the view put forward by the Ulster Unionist Members of this House, no doubt we shall take notice of it, but I do not anticipate for a moment that we shall comply with it, because I am sure that if we did, we should get into very serious trouble, and quite rightly, with the Northern Ireland Government. It is their business to consult with the organisations in Northern Ireland which may be interested in matters of this kind before deciding to request His Majesty's Government here to seek authority from Parliament to extend Bills of this kind to Northern Ireland. I think that must quite clearly be the constitutional position, and I shall not be tempted by the hon. and gallant Gentleman to depart from it.
The hon. and learned Member for Northants, South and my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) raised a point about the desirability of consolidation of the various Statutes dealing with this matter. I do not dissent from that for a moment, but there are many sections of our statute law which urgently require consolidation. This is not the occasion for me to animadvert about the somewhat quite shocking state of the Statute Book. We are engaged, as the hon. and learned Gentleman knows, on a fairly heavy programme of consolidation, and the present subject must inevitably take its place in the queue. I cannot say that it is the most important of the branches of law which need consolidation.
Indeed, it may be that what is really needed in this, as in other matters, is not so much consolidation as codification, although consolidation may be a step towards that. But that is another and much larger question, and I must not attempt to embark upon it now. 2655 Accordingly, I ask the House to give this Bill a Second Reading.
§ Mr. Manningham-Buller
Would the right hon. and learned Gentleman give consideration, before the Committee stage, to this further question? Where the marriage is solemnised in a Trust territory or protected State, and a settlement is made relating to property in that territory or State, it might be convenient to give power to the court of that country, even though the parties were domiciled here, to vary the settlement there rather than for the parties to have to come back to the courts of this country for variation of a settlement made in the protected State and relating solely to property within that State. I do not want to expand that now, but in that limited field it seems to me that it might be desirable. It could be done by an Amendment to give that power.
§ The Attorney-General
I will certainly look at it to see if it would be appropriate, in this Bill, to provide that power. That would, of course, involve amending the actual jurisdiction. This Bill does not attempt to do that; it merely applies the existing jurisdiction to new territories. But I will certainly look at it to see if we can deal with it appropriately.
§ Lieut.-Colonel Lipton
Is it possible for the right hon. and learned Gentleman to say at this stage—because it would be for the convenience of practitioners and litigants—to which of the various territories it is intended that the Order in Council to be made under this Bill is going to apply?
§ The Attorney-General
I am sorry. My hon. and gallant Friend did, I think, put that point in his speech. It is not intended to apply to any Colonies other than those to which it already applies in the original Act. It has not been finally settled to which of the Protectorates and Trust Territories the Bill will be applied"
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Committee of the whole House.—[Mr. Royle.]
§ Committee upon Monday next.