§ Order for Second Reading read.
§ 7.50 p.m.
§ The Lord Advocate (Mr. John Wheatley)
I beg to move, "That the Bill be now read a Second time."
The purpose of this Bill is a simple one, namely, to enable certain maintenance orders to be made and enforced throughout the United Kingdom. Its object is to close certain gaps in our legal procedure which at present give rise to hardship and social injustice to wives, mothers and children, and at the same time provide escapes for irresponsible husbands and fathers.
Broadly speaking, the Bill deals with three types of court orders which, for convenience, I may describe by the generic terms of wife maintenance orders, affiliation orders, and child maintenance orders. The Bill applies to England, Scotland and Northern Ireland, and, as the existing law in each of these countries is different, the machinery set up under the Bill to give effect to its purpose is necessarily somewhat complicated. I do not propose to deal in detail with the complicated machinery. I trust that the House will be satisfied with an explanation of the general principles now during Second Reading, leaving the more detailed examination of the machinery to later stages.
Before enunciating the general principles of the Bill I think it may be for the convenience of the House if I illustrate the difficulties which arise under the existing law and which call for the remedies we propose. In wife maintenance cases the court in England which has the jurisdiction is the court where the marital offence was committed, or, by a recent enactment, the court where either the husband or the wife resides. In Scotland in all these classes of cases the court which has jurisdiction at present is the court where the defender resides. Thus, if a husband deserts his wife in Scotland and comes to England his wife cannot sue him in the Scottish courts because he is not resident there, but must, if she wishes to pursue her rights in court, establish residence in England and raise her action there, albeit all the relevant evidence is in Scotland. Apart altogether from the prohibi- 2332 tion which the cost may create, the trouble and inconvenience are often deterrents
In affiliation cases the position is equally unsatisfactory. In England the court which has jurisdiction is the court where the mother resides. In Scotland it is the court where the defender resides which alone has jurisdiction. Accordingly if a man bairns a lassie in Scotland and flees to England the girl cannot sue him in the English courts unless she comes to England to reside. Nor can she sue him in Scotland in the Scottish courts because the defender is not resident there. A further complication is added by the fact that in all classes of case the English court at present has no jurisdiction if the husband or father is out of England—say in Scotland. The position in Northern Ireland is much the same as it is in England.
The difficulties, however, do not end there. Even if a decree is obtained, the position in all three countries is that where the man against whom the decree was granted has moved out of the country where the order was made there is no practical method of enforcing it against him. This has given rise to grave injustices and hardship, and many a woman has been deprived of the protection which the law sought to provide. We are determined to provide machinery to counteract the existing immunity of these "hit and run" husbands and their more peripatetic but less official counterparts, and it is in that spirit that I invite the House to approach this Bill.
The Bill consists of two main Parts. Part I relates to the jurisdiction of courts of summary jurisdiction in England and Northern Ireland, and of sheriff courts in Scotland, to make and vary orders. Part II relates to the enforcement of orders of all courts, and the discharge and variation of orders which are registered in either the superior or inferior courts. Let me state at this stage, first, that this Bill does not in any way provide any new grounds of action, but merely deals with the questions of jurisdiction and enforcement; and second, that the jurisdictions conferred by the Bill are in addition to, and not in derogation of, any existing jurisdiction of the courts concerned.
Under Part I of the Bill, in wife maintenance cases the existing jurisdiction of courts of summary jurisdiction in England 2333 and Northern Ireland is extended to cover the cases where the defendant is out of England or Northern Ireland as the case may be, provided that the applicant resides in that country and the parties last ordinarily resided together there as husband and wife. In Scotland the jurisdiction is extended to the sheriff court within the jurisdiction of which the pursuer lives provided the parties last ordinarily resided together as husband and wife in Scotland.
Those actions, of course, may also include conclusions for payment of aliment for the child of the marriage. The extended jurisdiction only applies where the husband is resident in one of the other countries of the United Kingdom. [Interruption.] No doubt the hon. and learned Gentleman, in the course of his wide and extensive reading, knows exactly what "aliment" means. If he does not I think it is rather regrettable that he takes such a small interest in comparative law.
§ Professor Savory (Antrim, South)
Would the right hon. and learned Gentleman explain what it does mean?
§ The Lord Advocate
If I may respectfully say so to the hon. Gentleman, I am rather appalled at the ignorance which is being displayed with regard to these historic rights of persons north of the Border.
§ The Lord Advocate
As we in Scotland have been for years a great educational force, I readily accept the invitation of the hon. Gentleman. It is the amount of money ordered by the court to be paid by a person for the maintenance of a person for whose maintenance he is responsible.
Turning next to orders for the maintenance of infants under the Guardianship of Infants Acts, Clause 2 provides that the jurisdiction in England is given to the court of summary jurisdiction within whose jurisdiction the mother resides, provided that the mother and infant reside in England and the father resides either in Scotland or in Northern Ireland. In Scotland the jurisdiction is granted to the sheriff court in whose jurisdiction the mother resides, provided that the corresponding conditions are satisfied. Sum- 2334 mary courts in Northern Ireland have no jurisdiction in respect of guardianship orders, and so there is no corresponding provision for Northern Ireland.
Clauses 3, 8 and 11 deal with affiliation orders in the respective countries, and, in effect, provide that the mother of the illegitimate child can raise her action in her "home" court, provided that the act of intercourse resulting in the birth of the child took place in that country and the putative father resides in one or the other of the other two countries in the United Kingdom. Similar jurisdiction is given in cases where by statute the National Assistance Board or the local authority are given the right to sue in lieu of the mother.
Clauses 4, 9 and 12 relate to maintenance orders which may, under the existing law, be made on the application of the National Assistance Board or a local authority. These Orders fall into four classes. The first consist of what are really affiliation orders, made on the application not of a mother but of the authority who are spending money on the maintenance of an illegitimate child. The second type are orders directing that sums payable under existing affiliation orders to the mother be diverted to a local authority. The third are orders obtainable at the instance of the local authority against persons who, under the Children and Young Persons Acts, are liable to contribute to the maintenance of a child or young person who is being looked after by a local authority. Lastly, there are orders which can be made for the benefit of the National Assistance Board or a local authority when they are maintaining a person other than an illegitimate child—for example, a separated wife—for whose support the defendant is legally responsible.
In all these cases the Bill puts the Board or the local authority in a position to obtain and enforce orders when the defendant is in another part of the United Kingdom. To this end certain consequential Amendments have had to be made in the enactments concerned so as to bring them into the general scheme of Part I of the Bill. These Amendments are in the First Schedule of the Bill; they concern merely what authority can apply for orders and in what court.
So far as England and Northern Ireland are concerned, provision is made in 2335 Clauses 5 and 13 for the transfer of proceedings in wife maintenance cases, on the defendant's request, from one court to another court in the same country, if the last matrimonial home of the parties was within the jurisdiction of the latter court. In Scotland no alteration of the existing law is necessary to enable such cases to be transferred from one sheriff court to another. The object of this provision is to secure that, in a proper case, the defendant who is summoned to appear in proceedings in a country in which he is not residing, shall not be put to defending the case in the place where the wife happens to be residing, when all the evidence is in the place where they last resided together as husband and wife.
We may illustrate that with a particular example. Suppose a husband and wife resided in Newcastle and that was where they last resided together. The husband goes to Scotland. The wife is entitled to raise an action under this Bill, but at the time when the action was raised, she is no longer residing in Newcastle but has gone to London. She raises her action, as she would be entitled under this Bill, in a court in the London area. When the husband is convened into the process he can move the court in London to transfer the case to the corresponding court in Newcastle, because most of the relevant evidence is in the Newcastle area.
Clause 15 relates to the service of process. Where the defendant is not resident in the country in which the proceedings are brought, the procedure will be that a summons issued in that country may be endorsed and served in the country of the defendant's residence. It has been provided that the service must be personal service, as it is thought that where a defendant is being summoned to answer proceedings in another country, the best possible means of giving him notice should be employed. If he does not appear, an order may be made against him in his absence, provided that a service of the summons is properly proved. This represents no departure from the normal practice in these cases.
Part II of the Bill provides that where a maintenance order has been made by a court in any part of the United Kingdom, the person entitled to payments 2336 thereunder may apply for the decree to be registered in the court of the area where the person liable to make the payments resides. If the order is so registered it can be enforced in like manner as if it were an order of that court. The various kinds of orders concerned are set out in Clause 16, and this procedure covers existing as well as future orders.
Thus a woman who has obtained a decree for payment of aliment in Scotland against her husband who has come to reside in England can apply for registration of her decree in the appropriate English court. Once it is registered, it can be operated as if it were a decree of that English court. Orders made by superior courts, for example, the Supreme Court of Judicature in England, the Court of Session in Scotland and the Supreme Court of Judicature in Northern Ireland, may be registered in the corresponding court of the appropriate country. Orders made by inferior courts may be registered in the corresponding inferior courts in which such orders are made. An order cannot be registered in more than one court at the one time.
Clause 19 relates to the functions of collecting officers in England and Northern Ireland—there are no collecting officers in Scotland. Use has been made of the collecting officers both in the collection of moneys due when the order is registered in a court in England or Northern Ireland and in the giving of assistance to women in the registration and enforcement of orders.
I am sure this Bill will be non-controversial in the party sense and will enlist sympathy and support from all quarters of the House. I am confident that it will be warmly welcomed by all right-thinking people. If any one has qualms about the departure from the existing law of jurisdiction, I trust that these will be more than counteracted by the knowledge that since the law should at all times be an instrument of justice, it will be fulfilling that function in the present proposals, which will bring a much needed and long overdue relief to many women.
§ 8.7 p.m.
§ Mr. Manningham-Buller (Northants, South)
The Lord Advocate has done his best to explain to the House the somewhat complicated provisions of this Bill. 2337 Perhaps it has not been particularly easy for him to do so, or, indeed, particularly easy for the House to understand the explanation—interpolated, as it was, by the use of Scottish terms which are not familiar to those who practise in the courts of England or represent Northern Ireland. To the ordinary practitioner in Northern Ireland or in England, and to husbands wherever they are, the phrase the right hon. and learned Gentleman used about the husband being "convened into the process" may have caused alarm and dismay.
The right hon. and learned Gentleman did make one thing, at least, clear. That is that there are defects in the present law as applied between Scotland, England and Northern Ireland. We are grateful for that. Since 1945 many of us in this House have repeatedly, in our Questions, sought to raise this matter and to press the Government to introduce a Measure of this kind. It is a complicated Measure, and it is bound to be for the reasons the right hon. and learned Gentleman gave; but I am glad indeed that the efforts of my hon. and gallant Friend the Member for Edinburgh, West (Lieut.-Commander Hutchison), who has been most persistent in this matter, now look as if they are going to result in fruition. I am sorry that the right hon. and learned Gentleman did not see fit, in moving the Second Reading, to acknowledge the great support and encouragement he received in his efforts from another Scottish Member.
This Bill was described by the right hon. and learned Gentleman as a Bill aimed—I use his phrase—"at hit-and-run husbands." I am not sure that that is at all an accurate description. It is true it is aimed at men, but not only husbands. If the right hon. and learned Gentleman wants to use a phrase of that description, it would have been better to say that this Bill was aimed at "those who kiss and run away."
§ The Lord Advocate
I did not confine it to the husband. I referred to "hit-and-run husbands and their more peripatetic and less official counterparts." I thought he would have understood what I meant by that.
§ Mr. Manningham-Buller
It is quite true that the Lord Advocate was speaking the language of England and not the language of Scotland. "Hit-and-run hus- 2338 bands" was the expressive phrase he used. I must say that as a husband I rather deplore the use of the word "husband" at the end of that phrase. Be that as it may, it is not, perhaps, without significance that the Second Reading of this Bill should have been moved by the Lord Advocate, bearing in mind that the general trend in this island is not from south to north but from north to south. Whether this Bill will bring more benefits to those ladies who reside in Scotland than it does to those ladies who reside in England, only the future will show.
This is, as I have said, a very complicated Measure, but we on this side of the House regard it as very desirable. We think it is very wrong that a man—I use the more general expression—should be able to avoid his responsibilities to his wife or to his children by slipping across the Border, going either south or north, or indeed by going to Northern Ireland or leaving Northern Ireland. But I should like to point out to the right hon. and learned Gentleman that this Bill does not entirely prevent evasion of such responsibilities. It will still be possible to evade the responsibilities by crossing the border from Northern Ireland into Eire or by going from this country or from Scotland into Eire.
I must confess that I am entirely ignorant of the law of Eire, but I should have thought that probably the Government of that country would have secured, if necessary, the alteration of the law so that a man in that country would be responsible for his wife and children in much the same way as here. I ask the right hon. and learned Gentleman to pursue investigations and enter into discussions to see whether or not it would be possible, by agreement with the Government of Eire, to extend the good provisions of this Bill so that Eire will also be covered by provisions of this character. The fact that Eire is not covered may be unavoidable, but it is, I think, a little unfortunate. Bearing in mind the numbers who come from Eire to this country, I cannot but feel that it might be possible to enter into a reciprocal arrangement with Eire in this matter.
The right hon. and learned Gentleman went into some detail in describing the different tests that have to be applied in considering the question of jurisdiction both in Scotland and in England. I have 2339 one criticism to make of this Bill, and only one, but I think it is rather important, because the Bill as it now stands may prove in that particular respect difficult to operate and awkward in its operation. The House will see that under Clause 1 the jurisdiction in the English courts in respect of maintenance will depend upon the parties either being last ordinarily resident in this country as man and wife or upon the respondent being resident in England. Residence is the test of jurisdiction, and is the sole test under Clause 1. I am not dealing with variation of orders that have already been made, to which different considerations apply. I am talking about the initial grant of an order.
Under Clause 2, again the jurisdiction of the English summary courts in respect of orders for maintenance of children depends solely upon residence, and it is when one comes to Clause 3 that one sees that in the cases under the Bastardy Laws Amendment Act, 1872, or the National Assistance Act, 1948, or the Children Act, 1948, the Government are seeking to introduce into the law of England—I do not profess to speak for the law of Scotland—an entirely new criterion; that is to say, if this Bill becomes law in its present form the jurisdiction of the English courts will depend upon proof that the act of intercourse resulting in the birth of a child took place in England.
Up till now the jurisdiction of the English courts in such matters has solely depended upon the residence of the mother, both under the Bastardy Laws Amendment Act and under the National Assistance Act and the Children Act, 1948. This new criterion which is to be introduced in this Bill, if it is passed in its present form, seems to me likely to raise serious difficulties in practice. The House will see that under Clause 8 a similar criterion has to be applied with regard to jurisdiction in the Scottish courts. From what the right hon. and learned Gentleman said, I did not understand that any proof of that nature had now to be given in the Scottish courts before the man was convened into the process. It would appear to be something quite new.
Courts of summary jurisdiction are, rightly, pretty careful where questions of 2340 the jurisdiction of the court are concerned. Before they can act they will have to be satisfied that they in fact have jurisdiction to make an order, and I can see the possibility of cases arising where, if those Clauses stand in their present form, the complainant goes into the court in Scotland and asks for an order and the court say that they are not satisfied that the act of intercourse resulting in the birth of the child took place in Scotland. If the court came to that conclusion that they were not so satisfied, the court could not make an order. The woman might go across the border and start proceedings in the English court. That court might reach the same conclusion, and that lady would be left without any remedy at all.
I regard that as a serious defect in this Bill. I can see no reason for its inclusion. The right hon. and learned Gentleman has not sought to justify it at all. All sorts of possibilities enter into one's mind. I believe that Berwick, for these purposes, counts as being in England, but Berwickshire does not. To prove the jurisdiction of the Scottish courts it is not sufficient to prove that any act of intercourse has taken place; the court would have to be satisfied that it is the particular act of intercourse resulting in the birth of a child. In my opinion, speaking for myself, I think that is putting a quite intolerable burden upon the complainant who is seeking to obtain an order. It is a quite unnecessary provision and I can see no advantage in it whatsoever. Indeed, if anything of this sort took place—I do not know if it would on our nationalised railways—in a train which was running between Scotland and England I can see the greatest uncertainty arising and considerable litigation of a character which one does not want to encourage. I can see no useful purpose being served by the retention of these words.
If the House looks a little further in the Bill, at Clause 11, it will see that that curious stipulation is inserted with regard to the jurisdiction of Northern Ireland. Here, again, jurisdiction in such matters will depend upon proof that the act of intercourse resulting in the birth of the child took place in Northern Ireland. I believe there is a steamship service from Glasgow to Northern Ireland. What happens if the act of intercourse took place in the course of a voyage and outside the three-mile limit from Northern 2341 Ireland and well away from the port of Glasgow? Perhaps the Lord Advocate will be able to tell us at a later stage.
I ask that some consideration should be given to that point. In my opinion, all that is required is to say that where the woman ordinarily resides in England and the child is born while she is residing in England, then she should have recourse to the English courts; but where the woman resides in Scotland and is ordinarily resident there when the child is born, then she should have recourse to the Scottish courts; and there should be a similar provision with regard to Northern Ireland. I cannot see that that could possibly result in any injustice.
Whether it would mean more legal proceedings in Scotland than in England or Northern Ireland seems to me a matter of small moment. By inserting that stipulation, which, after all, is entirely in accordance with the law as it exists today in this country with regard to such matters, we are laying down a clear rule, something which it is pretty easy for the complainant to establish, something which it is pretty easy for the court to determine.
I regard that as a criticism of some substance because it will affect the operation of this Bill. I apologise to the House for perhaps speaking too long on the subject but it is important. Subject to that one criticism, I would say that we welcome the Bill. I have no other criticism to make of it. It does something for which we on this side of the House have pressed for a long time, and my only regret is that at the present moment it is not possible to extend its operation to Eire and to give to those women who live in Eire similar facilities for pursuing those who run away to this country.
§ 8.23 p.m.
§ Lieut.-Colonel Lipton (Brixton)
In welcoming the introduction of this Bill I must say at the outset that I was glad to hear what the hon. and learned Member for Northants, South (Mr. Manning-ham-Buller) had to say. I have always found it difficult to be quite certain what kind of legal reforms are regarded as non-controversial. I have long since come to the conclusion that the best and safest definition of what constitutes non-controversial legislation in the sphere of legal reform is this simple test: whether 2342 the hon. and learned Member for Northants, South, regards it as controversial or not.
On this occasion he made it quite clear, subject to one or two reservations with which my right hon. and learned Friend the Attorney-General will probably be able to deal, that he welcomes the Bill. I was rather surprised to hear him say that he and his hon. Friends had been pressing for this reform for a considerable time. I do not recall occasions on which he pressed ardently for this reform, but if I do him an injustice in that respect I will gladly withdraw. It is, of course, a fact that this problem has needed attention for many years.
§ Lieut.-Commander Hutchison
I have been pressing for this personally for nine years, as every Secretary of State, Lord Advocate and Law Officer knows.
§ Lieut.-Colonel Lipton
In that case I withdraw what I said so far as the hon. and gallant Member is concerned, but I do not feel called upon to extend that withdrawal to many other hon. Members opposite.
§ Mr. Manningham-Buller
I am sorry that the hon. and gallant Member takes that line. I have supported my hon. and gallant Friend on this subject on many occasions. I have no references to HANSARD here, but I am pretty sure that that is so, quite apart from whether I have raised the subject myself.
§ Lieut.-Colonel Lipton
My hon. Friend the Member for Ayrshire, South (Mr. Emrys Hughes) reminds me that there was no reference to this much-needed reform in the Tory election manifesto or the book called "The Right Road for Britain." I am not complaining about that, because there was no mention of it, either, in the Labour Party's manifesto, nor was there any mention in the King's Speech a few weeks ago, of the Government's intention to introduce the Bill.
§ The Lord Advocate
At the Scottish Labour Party conference in Aberdeen last year, I gave a personal undertaking that I would do my utmost to see this Bill put on the Statute Book.
§ Lieut.-Colonel Lipton
I am very glad to hear that from my right hon. and learned Friend. I only wish that other undertakings which have been given to 2343 political party conferences by other people were as quickly redeemed.
If I may revert to the Bill itself, which I am glad to know is non-controversial, the first comment I would make is that the title is satisfactory, in this sense—that it immediately discloses what the Bill is about. Hitherto we have had Bills before the House in which very important and useful reforms have been introduced under some such comprehensive and meaningless title as, "Law Reform (Miscellaneous Provisions)," which, of course, nobody understands without looking up the text of the Bill or the Act concerned. I hope that in this respect we are establishing a useful precedent and that in future Measures of legal reform the purpose of the Bill will not be buried in some vague form of words which do not disclose immediately what is the object of the Bill.
This Bill deals with a defect in the present law which has operated harshly in the case of many women who, in the past, have had occasion to seek maintenance orders, affiliation orders, or orders in respect of guardianship of infants in courts of summary jurisdiction in the three parts of the United Kingdom. So far as these unfortunate women are concerned, it has been a very dis-united kingdom. They realise that to their cost when they endeavour to secure some measure of justice in these three categories of cases. By adding to the jurisdiction of the various courts of summary jurisdiction in England, Scotland and Northern Ireland, a very useful contribution will have been made towards the removal of what has undoubtedly operated as an unfair anomaly adversely affecting the interests of quite a considerable number of women and children.
A serious objection to this Bill is that mentioned by the hon. and learned Member for Northants, South (Mr. Manningham-Buller), who referred to the gap which exists in this field of law because there is no reciprocal arrangement of any kind with the Government of the Republic of Eire. I fear that, as a result of the passing of this Bill, we are creating a new Alsatia in Southern Ireland. For the benefit of Scottish Members, who may not know what that reference implies, 2344 Alsatia was the name given in the 17th century to a district between the Thames and Fleet Street which afforded sanctuary to debtors, criminals and all kinds of undesirable people who sought to evade their responsibilities or their civic liabilities in one way or another.
With the passing of this Bill we shall be faced with the situation in which any man who wishes to evade his responsibilities in respect of wife maintenance or affiliation orders has only to go and settle down in Southern Ireland, when he will be immune from legal process for the rest of his days. That does not strike me as a very satisfactory state of affairs. I am certain that if the matter were discussed with the responsible authorities in Eire it should be possible to arrive at some reasonable arrangement which would overcome what may develop into a rather serious social problem.
By way of precedent, it is possible to quote the arrangements that have already been made between the Ministry of National Insurance in this country and what I believe is called the Social Welfare Department of the Government in Dublin, the result of which is to enable widows who may be entitled to widows' pensions under the National Health Act or the National Insurance Act of this country to draw their pensions. What has been done in this particular sector of our social life ought not to be impossible of achievement in respect of these important matters relating to the maintenance of wives, or children, or the guardianship of infants.
By way of illustration of the difficulties that may arise by reason of there being no arrangement apparently under consideration with the Government of Eire, let me quote the case of Mr. Denis James Corcoran, who has been a prisoner in Winchester Gaol since February, 1948. He is in prison at this moment for contempt of court arising from his refusal to comply with an order of the court to hand the daughter of his marriage into the custody of his former wife, from whom he is now divorced. The child who should have been handed over to the wife—who is a resident in this country—is at the moment, I understand, living with a grandmother in Tipperary. What happened was that the wife went to the Supreme Court in Dublin with a view to securing custody of the child, 2345 and the decision of the Supreme Court in Dublin was that the mother should not have custody of the child.
§ Professor Savory
May I point out to the hon. and gallant Gentleman that it was only done by a majority of the court and that there was a dissenting judgment by Mr. Justice Black exposing the injustice of the decision?
§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
This matter does not arise on the Bill.
§ Lieut.-Colonel Lipton
I am citing this case by way of illustrating the kind of situation that may arise.
§ Mr. Deputy-Speaker
If I knew what the hon. and gallant Member was trying to illustrate I might be able to follow his argument a little better. What is it going to illustrate?
§ Lieut.-Colonel Lipton
The case which I have mentioned illustrates the point that where there is a conflict between a court in Eire and a court in this country the custody of a child remains a matter of dispute for which at the moment there does not seem to be any solution. I mention the case because this situation may well arise in the future if we persist in following a policy which excludes from our consideration in dealing with these matters the relationship between the courts in this country and the courts in the Republic of Ireland. In this case, where the custody of the child is in dispute——
§ Lieut.-Colonel Lipton
May I ask for your guidance, Mr. Deputy-Speaker? I may be wrong, but I have always understood that on the Second Reading of a 2346 Bill one could refer to matters which were not included in the Bill but which one thought should be included in the Bill.
§ Mr. Deputy-Speaker
Yes, but one has to keep within the scope of the Bill, and Eire would be outside the scope of this Bill.
§ Lieut.-Colonel Lipton
In that case, I must comply with your Ruling and leave it at that, There is no reason why our relationship with the courts of Eire should not have been brought within the scope of the Bill, or should not be brought within the scope of the Bill at a later stage.
§ Mr. Deputy-Speaker
If the hon. and gallant Member looks at the long title of the Bill he will find that that could not be done.
§ Lieut.-Colonel Lipton
In those circumstances I will proceed to the next point, in which I find myself in a considerable measure of agreement with the hon. and learned Member for Northants, South (Mr. Manningham-Buller). He referred to the introduction of what appears to be a new principle into the Bill. If a woman seeks an affiliation order against a father, such father being resident in either Scotland or Northern Ireland, she may take proceedings in the English court if the act of intercourse took place in England. In the case of a Scotswoman she may proceed against the father in England or in Northern Ireland if the act of intercourse took place in Scotland. In the case of a woman living in Northern Ireland, she can take proceedings against a father in England or Scotland if the act of intercourse took place in Northern Ireland.
It would be very much simpler and would lead to more expeditious justice if the actual location of the act of intercourse were not made a matter which has to be proved in the court before which an order is sought. It should be sufficient for the purpose of the administration of justice if it can be proved that no matter where the act of intercourse took place the man against whom the proceedings are being taken is the father of the child. I hope that my right hon. and learned Friend will find it possible to say that he will look at the matter again with a view to deleting the references in the Bill to the necessity of establishing where the act of intercourse took place.
2347 Like the hon. and learned Gentleman the Member for Northants, South, I find when I come to the end of my speech, that notwithstanding what I have said I am an ardent supporter of the Bill, and I hope that it will not be long before it reaches the Statute Book. It introduces a much-needed reform in the law relating to this subject. If we have another 20 or 30 Bills of the same limited scope, we shall eventually be able to clear up the mess and muddle in which so many of the laws relating to marriage and the issue of marriage are found to be at present. The Bill represents a small but useful instalment towards clarifying and making more just the law relating to these important matters of grave and far-reaching social significance.
§ 8.43 p.m.
§ Lieut.-Commander Claris Hutchison (Edinburgh, West)
I shall not follow the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) in his endeavours to link up the Bill with Ireland, but I wish to take him to task for saying that insufficient interest in this matter has been shown by hon. Members on this side of the House. He will find in the OFFICIAL REPORT that my hon. Friend the Member for Pentlands (Lord John Hope) asked a Question about this not so long ago, the hon. Lady the Member for Aberdeen, South (Lady Tweedsmuir) has also asked Questions about it, and others have done so, too. I should like also to point out that the Bill is of particular importance to women, yet the only hon. Lady present has been my hon. Friend the Member for Tynemouth (Miss Irene Ward). It is not at all reasonable to suggest that we have in any way been backward in taking an interest in this important subject.
As I mentioned in an interjection, I have been interested in this matter for nearly nine years because it was shortly after I entered the House for the first time that a constituent came to me with a tale of woe. She had obtained a decree of separation from her husband in the Scottish courts and the sheriff had made an order for aliment in her favour, but the husband had emigrated to Manchester, where he was in a very good job and was earning a steady wage but was not paying any money to his wife.
2348 I went into this matter at that time and found there were great difficulties in getting anything done. I spent nearly three years corresponding with various legal organisations both in England and Scotland which assist people who are in poor circumstances and are unable to engage in litigation for themselves. Of course, I corresponded also with the Law Officers of the two countries but, eventually, as we seemed to be going round in a circle, I brought it up in the House in a Debate on the Adjournment in June, 1944. I remember the occasion quite well. It was the day after D-Day and there was a short, interesting discussion in which a number of Members on both sides took part. In his reply the then Attorney-General, who is now Lord Justice Somervell, completed his speech with these words:But I will give my hon. and gallant Friend an undertaking, on behalf of the Home Office, the Lord Advocate and the Scottish Office, and on behalf of my noble Friend the Lord Chancellor, and myself, that we will look into this point, with regard to the enforcement in Scotland of English orders and in England of Scottish orders, because I am bound to say that such investigations as I have made, do indicate that there are uncertainties in the procedure at present."—[OFFICIAL REPORT, 7th June, 1944; Vol. 400, c. 1477.]That was the position in June, 1944, and since that date, as hon. and right hon. Gentlemen opposite are well aware, I have pursued the Home Secretary and various Secretaries of State for Scotland and Law Officers asking when legislation would be introduced and, at long last, this useful but rather complicated Measure has seen the light of day.
Like my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) and the hon. and gallant Member for Brixton, I welcome the Bill. I think its intentions are admirable but I have considerable difficulty in understanding some of its terms, particularly those which deal with English law. However, I am in good company because, during the Second Reading of this Bill in another place, both the Lord Chancellor and Lord Simon referred to it as being complicated and difficult to understand. In the circumstances, as a layman I feel that no apology is needed.
My remarks must of necessity be brief and cast in an interrogatory vein. There are three points I want to raise. From 2349 what the Lord Advocate said in his opening address, I understand that when this Bill becomes law all orders at present existing, where there is a decree, can be enforced under Part II of this Bill, provided they are registered.
§ The Lord Advocate indicated assent.
§ Lieut.-Commander Hutchison
That is important because, owing to the general upheaval of war-time conditions, there were a good many of these unhappy partings where the husband departed either north or south of the Border and the wife was deserted, and therefore this Bill should be applicable to deal with those cases even though they arose a number of years ago.
Secondly, prior to the introduction of this Measure and to the introduction of the National Assistance Act, in cases where the husband failed to fulfil his obligations to pay alimony to his wife, and the wife had recourse to what was then public assistance, it was within the power of the public assistance authority to take steps to compel the man to pay. There is some doubt whether the National Assistance Board has that power at present, but I understand that the effect of subsection (2) of Clause 16 will be to confer power upon the National Assistance Board to take action in cases where the wife is being given assistance from the Board. That is my interpretation. I rather think that the Lord Chancellor indicated that also in his speech in another place, but as I should like to be quite clear, perhaps the Attorney-General will mention this when he replies.
There is one other rather interesting question which arises. What will be the position in regard to enforcement if the husband leaves Scotland and proceeds, not to England, but to one of the Dominions or Colonies overseas? This is by no means a hypothetical question, for only a few months ago one of my constituents told me that her husband, from whom she had a decree of separation and who was paying aliment to her, had suddenly boarded an aeroplane for Johannesburg, where he is now in a very good job at a high rate of pay. He is not, of course, sending any money back to support his wife, who must therefore have recourse to National Assistance. After making investigations and having inter- 2350 views with the officials of the National Assistance Board in Edinburgh, and finding that they could not tackle the problem, I put a Question to the Home Secretary on 26th October last asking how the case would have been dealt with had the man been living in England and not in Scotland. In his reply the Home Secretary said:The Maintenance Orders (Facilities for Enforcement) Act, 1920, already provides for the reciprocal enforcement of maintenance orders between England, Wales and Northern Ireland and those parts of His Majesty's dominions outside the United Kingdom to which the Act has been extended by Order in Council. I am sending to the hon. Member a list of those parts of His Majesty's dominions to which the Act at present applies."—[OFFICIAL REPORT, 26th October, 1949; Vol. 468, c. 163–4.]The Home Secretary very kindly sent me immediately an imposing list of overseas territories embracing, I think, all the Dominions and Colonies, to which that Statute applies. The one country which it did not include, of course, was Scotland.
§ Lieut.-Commander Hutchison
No, but the Act embraces the United Kingdom and has been extended to all these Colonies and Dominions. My point is to ask whether, when the Bill is passed into law, that position will be altered. I do not suppose that it will be altered by the Bill itself, but in the event of its passage into law will the Government consider drawing up a new Order in Council which will bring Scotland into this Empire scheme of reciprocity, so to speak, for the enforcement of the payment of aliment. That seems to me to be a very reasonable step and would tidy up the one outstanding loose end. I commend this point sincerely to both of the right hon. and learned Gentlemen who are present on the Government Front Bench.
That is all I have to say on the Bill. It is a very useful Measure and I hope that it may pass through all its stages before very long and will become law before the end of the Session.
§ 8.53 p.m.
§ Mr. Emrys Hughes (Ayrshire, South)
I believe that the hon. and gallant Member for Edinburgh, West (Lieut.-Commander Hutchison), can claim to have exercised a great deal of pressure upon 2351 various Home Secretaries and Secretaries of State for Scotland regarding the grievances which the Bill sets out to remedy. That is true also, I believe, of the noble Lady the Member for Aberdeen, South (Lady Tweedsmuir). But the hon. and gallant Member is going too far when he argues that this Measure has ever figured in the programme of social legislation which has been advocated by his party. I have been a very diligent student of the progress of the Conservative Party in these Measures for the last 20 years, and it is certainly news to me that this reform has ever been advocated officially by the party opposite.
Indeed, in view of the claim which the hon. and gallant Member has made, I am rather surprised that the Leader of the Opposition is not present, because at Question Time today he came forward, gready to our astonishment, as a defender of the rights of Scotland. We have had the right hon. Gentleman in Scotland twice this year, and he has made two great historical orations dealing with social legislation in Scotland. He even found time to work himself into a state of indignation about the housing problem, but I have never read in the speeches of the Leader of the Opposition any demand for a Maintenance Orders Bill such as we have before us now. I suggest that the hon. and gallant Member should inform the Leader of the Opposition that this is an important Measure and that we are entitled to have at least his moral support.
This matter has a long history, and those of us who served the old parish councils and public assistance committees in Scotland know how difficult it was to get maintenance orders enforced in England. I should like to stress the point which was raised by the hon. and learned Member for Northants, South (Mr. Manning-ham-Buller), and the hon. and gallant Member for Edinburgh, West, and point out the anomaly which exists between Northern Ireland and Southern Ireland.
I will give an illustration. In my constituency, which is normally a very peaceful constituency, a military camp was established during the war—I need hardly say without my acquiescence. That immediately led to a variety of social problems. We had the Grenadier Guards there and the immediate result 2352 —not an immediate result, but a subsequent result—was that we had to face this question of a rise in the illegitimate birthrate. Then we had the Inniskilling Fusiliers. A Scots mother would have the right to go to court to proceed against a private of the Inniskilling Fusiliers if he lived north of the Border, but if he lived in the island of Ochill, or a remote part of Donegal, there would be no grounds for claim at all.
I ask the Attorney-General to try to meet us in some way. It is a real grievance that if in one street a mother has a claim against a soldier in the Inniskilling Fusiliers who lived north of the Border, there could not be a claim for a woman on the other side of the street in respect of a soldier who lived in Donegal. We ought to find a way of getting round this particular difficulty. I believe it should be possible to do so at a later stage and that a further Clause might be introduced. I do not believe that it would be beyond the ingenuity of the Law Officers of the Crown to negotiate some agreement with the very human and intelligent Government in Eire with a view to getting reciprocity in this matter.
§ Mr. Deputy-Speaker (Major Milner)
The hon. Member is well aware that this Bill refers only to the United Kingdom and there is no reference whatever to Eire.
§ Mr. Hughes
No, Sir, and that was the criticism of hon. Members on both sides of the House, especially the hon. and learned Member who opened for the Opposition. I only wish to add my small voice to the demand which was made.
§ Mr. Deputy-Speaker
The hon. Member is perfectly in order, as, no doubt, was the hon. and learned Member for Northants, South (Mr. Manningham-Buller), in mentioning that fact in passing, but the hon. Member is now elaborating the point and going into detail which is not permissible.
§ Mr. Hughes
Yes, Sir; it was done retrospectively.
I should like to raise a further point to follow up questions which were put by the hon. and gallant Member for 2353 Edinburgh. West, because we not only suffered from the Grenadier Guards and the Inniskilling Fusiliers: there were the Italians, the French, the Poles and the Germans. I ask the Attorney-General whether he is aware that this is an international question?
§ Mr. Deputy-Speaker
I understood that the hon. Member had finished or was about to finish. In any event he must not proceed further along those lines.
§ Mr. Hughes
No, Sir. I have put my question and I hope that the Attorney-General will not ignore it when he replies to the Debate.
I suggest that this is a Measure which will commend itself to the people of Scotland, that it is an attempt to remedy a long-standing social grievance. We are indebted to the hon. and gallant Member for Edinburgh, West, for pursuing this question, and I am glad that this Bill has been brought forward by the Government.
§ 9.2 p.m.
§ Lieut.-Colonel Hyde (Belfast, North)
I rise to speak in this Debate with feelings of considerable trepidation which are perhaps not unnatural in one who is called upon to address this House for the first time. For such shortcomings as I may betray in the few remarks I propose to make on this Measure, I ask the House to extend the full measure of that indulgence which it traditionally accords to Members making their maiden speeches.
In one respect I do not think that I shall transgress the rules and customs of the House. I am aware that a maiden speech should aim as far as possible at avoiding controversy. I know, too, that it is often an extremely difficult thing for an Irishman and an Ulsterman, as I am, to do that. Fortunately this Bill is, as the Lord Advocate and other speakers have pointed out, non-controversial in principle. I welcome it, particularly as it seeks to redress some very real grievances which were suffered, among others, by the inhabitants of Northern Ireland, of whose capital city my constituency forms a part. While the provisions of the Bill are necessarily complicated, its object is extremely simple. It is to extend to all parts of the United Kingdom the jurisdiction of the courts in maintenance matters, which is at present exercised in 2354 each of the three parts of the United Kingdom to the mutual exclusion of the others.
Although Northern Ireland has been an integral part of the United Kingdom for 150 years, and although Scotland has similarly been a part of the United Kingdom for nearly a century longer, all the three parts of the United Kingdom have different systems of law and legal procedure in force. This accounts in some degree for the complexity of the present Bill. So far as the law of maintenance is concerned, I do not propose to follow those differences in detail, nor do I think it is necessary to do so.
But I would point out that in respect of two classes of maintenance which have been enumerated by the Lord Advocate, maintenance of wives and maintenance of illegitimate children, we in Northern Ireland consider that the law in our part of the Kingdom is considerably in advance of the law on these subjects in England. In England the maximum payment allowed to a wife is, at any rate was until recently, £2 per week and 10s. for the maintenance of each child to the age of 16. In Northern Ireland the maximum payment to the wife is £3 per week with a maximum of £1 for each child. Also in courts of summary jurisdiction in Northern Ireland, magistrates may grant what is tantamount to decrees of judicial separation on the grounds of adultery, with consequential orders for maintenance.
On the other hand, in affiliation proceedings in England, the liability of the man who is alleged to be the father of the child is a purely personal one, and on his death the mother cannot recover any arrears against his estate. In Northern Ireland the putative father's liability is not determined by his death. His personal representative may be made a party to the proceedings and the order enforced against his estate for the payment of a lump sum to the extent of the aggregate of the sums for which he would have been liable under the affiliation order had he lived.
On this subject I am reminded of the saying which was popular with the old Roman lawyers, to the effect that whereas maternity is a matter of fact, paternity is a matter of opinion. I do not know whether that opinion is more difficult to substantiate in Northern Ireland than in 2355 England, or whether it is that we are more moral in Northern Ireland, but the fact remains that affiliation proceedings in our courts are not of such frequent occurrence as they are here or—and I speak subject to correction by the Lord Advocate—in Scotland. Indeed in Northern Ireland our illegitimate birth rate in relation to the total number of births in that part of the Kingdom is only about half of what it is in England, Wales and Scotland.
I do not pretend that in these matters we invariably do things better in Northern Ireland. When it comes to the third class of maintenance order, the maintenance of infants, unfortunately we have not in Northern Ireland the benefit of the jurisdiction conferred on summary courts in England and Scotland by the Guardianship of Infants Act, 1925. That Measure has laid down in effect that the rights of the mother in the matter of the custody, care and guardianship of an infant should be equal to those of the father. In Northern Ireland, and of course to a much greater extent in Eire, the view still prevails that in these matters the father has superior or over-riding rights.
The great feature about this Bill so far as the enforcement of an order is concerned, is that a man will no longer be able to avoid his obligations if he goes to another part of the Kingdom from that in which the order was made. The principal class of case and the one which most loudly calls for relief, at any rate in Northern Ireland, is that of wife maintenance. The situation is indeed anomalous that a married man may leave his wife in Belfast and go to Hong Kong or the Falkland Islands, and a maintenance order may be enforced against him in those territories, but if he crosses the Irish Sea to Liverpool or Glasgow, or crosses the border into Eire, nothing can legally be done, as the law stands at present, to oblige him to contribute to the upkeep of his wife and children.
Numbers of sad cases in my own constituency have come to my notice where the husband gets out of work, goes to the employment exchange and is sent to a job in England or Scotland where there is a shortage of labour in his particular trade. Because of the lack of living accommodation, or because his wife naturally wishes to keep their home going in 2356 Northern Ireland, he is unable to bring her with him to his new job. He finds time on his hands and, as hon. Members will appreciate, as husbands sometimes do when they are separated from their wives, he makes fresh acquaintances; with the result that he comes to neglect his responsibilities to his wife and family. Time and again a woman in this sad condition has come to me and I have had to tell them that there is absolutely no legal remedy which she can pursue so long as the husband remains outside the jurisdiction of the courts in Northern Ireland.
I believe that this Measure will bring much-needed relief to many sorely tried women, not only in Northern Ireland but in other component parts of the Kingdom. So far as Northern Ireland is concerened, this Measure affords an excellent example of the co-operation which exists between the interested authorities in England, notably the Home Office, and the equivalent authorities in Northern Ireland. I know that the Attorney-General of Northern Ireland and the other authorities concerned in Northern Ireland do appreciate the spirit of co-operation and helpfulness shown when matters of particular concern to them were under negotiation with the Home Secretary.
The principle which this Bill embodies is plainly right. I feel certain that it must command the support and sympathy of all hon. Members of every shade of opinion in this House. Thus not only will it afford much needed relief to these women, but it will also have the effect, if I may respectfully adopt the words used by Lord Simon, in discussing the Bill in another place, of making the United Kingdom more united.
In conclusion, I should like to thank hon. Members for the courtesy with which they have listened to my remarks. This is the kind of Measure which I think shows all parties in this House at their best. In welcoming it, as I do most heartily, on behalf of myself and my colleagues who sit for Northern Ireland contituencies, including my hon. Friend the Member for Antrim, South (Professor Savory), I commend to the House a statement made by a distinguished predecessor of mine who represented the constituency which I represent when it was known as the Duncairn division—Edward Carson. I am glad to see that his name and tradition are being worthily maintained in this 2357 House by his son, the hon. Member for the Isle of Thanet (Mr. Carson). On a memorable occasion 32 years ago, Edward Carson said:Remember that a people becomes great not merely by local politics or local questions, but by taking a broad survey in which each part of the city as it may be, or the country as it may be, or the Empire as it may be, is a help one to the other, thus making for the mutual greatness of all.
§ 9.12 p.m.
§ Mr. Hoy (Leith)
It is my pleasant duty on behalf of all hon. Members to convey congratulations to the hon. and gallant Member for Belfast, North (Lieut.-Colonel Hyde) on his maiden speech. He made it with a wit, a grace and a fluency well worthy of any Irishman. I do not think that I could pay him a higher tribute than that. I am certain that the House will look forward to the contributions which he will make to the many other Debates in which I am sure he will take part.
I think I ought to say a few words to the hon. and gallant Gentleman the Member for Edinburgh, West (Lieut.-Commander Hutchison). Last week he and I took part in a Debate which was rather more acrimonious than the one in which we are taking part tonight. I am afraid that I had to make some remarks to him which perhaps could not be regarded as pleasant. I take this opportunity of saying that he is entitled to some personal credit for the consistency of the work he has done in getting the Bill brought forward. I know that there are hon. Members on this side of the House who have worked very hard to cause this Measure to be brought forward, and I do not think that we should enter into a dispute about where the credit should go.
This human problem has been with us for many, many years. We are grateful that the Government have taken this step which, while it may not go as far as some hon. Members might wish, at least will cover 95 per cent. of the cases for which at present there is no solution. I refer to those cases in which the man disappears. In my own constituency I have had a few sorrowful cases of this kind, where young women of good character have married men of their choice. Some have found, after having had a family, that the husband has disappeared over the border. This has caused tremendous hardship for the woman and for the children.
2358 It has always appeared to me as an awful anomaly that a state of affairs could arise within the United Kingdom in which the woman could take no action at all except, I think, through the National Assistance Board. I should like the Attorney-General either to confirm or to deny this point. The only point which I would take up is that made by the hon. and gallant Member for Edinburgh, West. I understand that, even at the present time it is possible for the National Assistance Board to take action against an erring husband on the other side of the border, but, be that as it may, at last, under this Bill when it becomes an Act, that will certainly take place. I welcome the Bill, and I am certain that it will commend itself to every section of the House.
§ 9.15 p.m.
Mr. Basil Meld (City of Chester)
The hon. Member for Leith (Mr. Hoy) was I think quite right in his concluding observation that the House will generally welcome this Measure. Before advancing to the substance of what I desire to say, there is one small point which I wish to raise. As several hon. Members have pointed out, this is a somewhat complex Bill. It will be observed that there are 32 Clauses and two Schedules, and I think I am right in saying that the Bill makes reference to some 23 existing statutes and also refers to a number of amendments to those statutes. The suggestion I am making, and I am uncertain about the machinery, is that an explanatory memorandum would have been of great assistance to hon. Members. These matters are rather difficult, especially to those who are not lawyers, and I throw that suggestion out for consideration in the future.
The Lord Advocate, in opening the Debate, pointed out that we are here considering three categories of court orders—namely, wife maintenance orders, affiliation orders and orders made under the Guardianship of Infants Acts. I feel that the House is more concerned in this matter with the social problems involved than with the legal niceties, however important they are, and it will be appreciated that the majority of cases which will be involved are cases of women who are in unfortunate circumstances. For example, the wife who has been deserted or neglected by her husband and seeks to require him to pay for her maintenance, 2359 and the woman who has an illegitimate child and seeks to have that child maintained.
I would say that, in these cases, there are three essential stages to be considered. The first is that it is absolutely essential that the defendant in the procedings shall be properly served with the summons and process. Plainly, one who is called upon to answer some allegation must know what it is and where he must appear in order to have an opportunity of defending himself, and one hopes that this requirement as to strict proof of service will never be relaxed by any of these courts. The next stage is the hearing of the proceedings, in which event the court must have proper jurisdiction. Finally, if the defendant is properly served and if the court has jurisdiction and makes an order, it is essential that there should be adequate machinery for enforcement. These three stages are dealt with in this Measure—the question of service, the jurisdiction of the court and the enforcement of the order.
If I might give two short illustrations of the sort of difficulty which obtains at the moment, hon. Members will appreciate the kind of social problem which is involved here. For example, if there is a married couple living in England and the husband deserts his wife and goes to Scotland, the wife, as I understand it, cannot obtain an order from the English court, which has no jurisdiction since the defendant is in Scotland. That situation is righted by this Measure. Again, if we take the case of a woman who gives birth to an illegitimate child in Scotland and the alleged father is in England, in the present situation the woman cannot apply to a court in England, because she does not live there, nor can she apply to a court in Scotland, because the defendant is out of Scotland. This Bill, again, provides the remedy for that.
Then so far as enforcement is concerned, as I have pointed out, many difficulties arise. The court makes an order in England; the defendant makes his way to Scotland; and the order cannot be enforced. That matter, as I understand it, is to be cleared up by Clause 16 of this Bill in this way, that an order made in any part of the United Kingdom, if registered, in a court in another part of the United Kingdom may be enforced there.
2360 It seems to me that we are right tonight to welcome this Measure as making good some of the defects which have obtained in our legal system. I do not propose to discuss whether hon. Members on this side of the House have pressed for it—as they clearly have—or whether hon. Members on the other side have pressed for it. Let us be content with the fact that it has now appeared, and that in all quarters it has been well received. I very much hope it will be given a Second Reading.
§ 9.22 p.m.
§ Mr. Weitzman (Stoke Newington and Hackney, North)
I do not desire to introduce any acrimonious note, but when one hears claims made on the other side of the House about pressure having been brought by that side to produce this Measure, one is very much tempted to ask, Why on earth was it not brought forward many years ago? The Bill undoubtedly fulfils a need for very necessary reforms. Illustrations have been given by a number of hon. Members about erring husbands who have come from Scotland to England, but there is one comparatively recent case in England which I should like to mention, for it does illustrate the necessity for the measures contained in this Bill.
It is the recent case of McCrae v. McCrae, a Divisional Court decision. In that case the wife in England was deserted by her husband who went to Inverness, and the court held that he was outside its jurisdiction to issue a summons as he was ordinarily resident in Scotland; and the Divisional Court held that that decision was a correct one. That is, of course, a very serious position. This Bill is a very good one in the fact that it remedies that situation, and deals with others at the same time. I desire only to mention that case as providing a practical example. I, like other hon. Members, welcome very much the introduction of this Bill.
§ 9.23 p.m.
§ Mr. John Hay (Henley)
I want to join in the chorus of approval which has come from all quarters of the House for this Bill, and to welcome it. Those of us who have had any experience at all of the grave difficulties into which women sometimes get because of the disappearance of their husbands, compelling them to resort to the magistrates' courts for the necessary 2361 maintenance to enable them and their children to live, know that this is a very grievous problem indeed. The only criticism that I have to make of the Bill is in respect of one omission rather, than of what is contained in the Bill. I shall deal with that in a moment.
I think the Bill does clear up a very anomalous position. For a number of years it has been possible to enforce maintenance orders made in this country or Scotland or Northern Ireland in other parts of the British Empire and Commonwealth under the Maintenance Orders (Facilities for Enforcement) Act, but until the introduction of this Bill it has been quite impossible to enforce maintenance orders made in this country in Scotland or Northern Ireland. Therefore, I welcome the Bill.
However, there is one important matter which I regret very much is not contained in the Bill. One of the big difficulties I have always noticed in the endeavour to enforce maintenance orders has been the difficulty of finding the husbands. Very often men do go off and leave their wives, and often their children as well, and one of the big difficulties we always find when we come to advise these people is in regard to tracing the missing men.
There has been on the Statute Book since, I believe, 1939, the National Registration Act. It was that Act which brought into being the identity card and registration system. I am very sorry that this Bill does not contain some amendment of the law relating to that Act which would enable a wife who is deserted by a husband—provided that there were some preparatory examination by a magistrates' court to show it was a bona fide case—to find out exactly where her husband is through the procedure of the National Registration Office. If that were done, it would be possible in many cases for wives to trace their husbands, to take proceedings and have an order made.
The big difficulty is in finding the husband and serving the summons upon him. Though the Bill does a very great deal to assist wives whose husbands have gone to Scotland, Northern Ireland or some other part, we are still faced with the difficulty that if the husband goes off we are unable to find him. I hope that at a later stage it will be possible and practicable to introduce some kind of 2362 legislation for the purpose of amending the National Registration Act to enable wives to trace their husbands through the facilities of the National Registration Office.
I see there is no reference in this Bill to either the Channel Islands or the Isle of Man. I wonder whether that is a deliberate or accidental omission. I hope the Attorney-General will consider the possibility of inserting in the Bill a reference to them as well as to Scotland and Northern Ireland. It is quite possible that a man might go off to those places, and the same facilities should apply there. Generally, I welcome the Bill. I believe it is a very good Measure and that it will do a great deal to help a very deserving kind of person.
§ 9.27 p.m.
§ Mr. Janner (Leicester, North-West)
I also rise to commend the Government for this Measure. I go very much further than those who have spoken already and say that it is a very excellent Measure. To those who really know what happens in the courts from day to day, it is perfectly obvious that this is a Bill that is very considerably overdue. It seems, from some of the speeches one hears, that the difficult position of those whose cases come within the scope of a Measure of this kind are not understood, or at least not sufficiently understood. Our courts today have applications made to them, daily, by women who find themselves in a desperate position. First, some cannot obtain orders, and, secondly, others having obtained orders find difficulty in enforcing those orders which are so essential to keep them alive and, in many cases, to keep their children alive.
I am very glad, indeed, that this Government, although under the pressure of very heavy work, has seen fit to introduce this Measure. I am also glad it has met with general approval throughout the House. It is rather late in the day to deal with some of the detailed matters that ought to be dealt with in respect of this Bill. Perhaps we shall have an opportunity of doing so at a later stage.
This Bill was discussed in another place. It was said there on the Second Reading that in the course of the Committee stage opportunity would be given for dealing with certain improvements. But when it came to the Committee stage, the Mem- 2363 bers of that other place found it so comprehensive that it was not necessary for them to deal with any matter other than one simple Amendment—if one can call any Amendment a simple one in a complicated Measure of this sort. It dealt with just one short point. I hope that when the Attorney-General replies he will assure us that the points that have been raised today will be dealt with on the Committee stage.
I hope I shall be forgiven if I touch on one point which has been referred to already. The question of enforcing orders made in the United Kingdom which are now not enforceable outside the United Kingdom is of great importance. This Measure deals with enforcement within the United Kingdom, but the hon. and learned Member for Northants, South (Mr. Manningham-Buller) raised a point of extreme importance. He pointed out if an order is made in this country there is difficulty in enforcing it when a person goes across a border, whatever border that may be. It is not possible to pursue the person concerned. It will be possible in Scotland and in Northern Ireland by virtue of this Bill, but it will not be possible to go further than that except where there is a reciprocal arrangement. In some countries there is a reciprocal arrangement, and of course it is absurd that in respect of Eire, which is so near, such a reciprocal arrangement does not apply.
I think this Measure will bring a considerable amount of relief to many thousands of women in this country. Those who preside in our courts have been very unhappy in the knowledge that they cannot deal with many heartrending cases of women who should be entitled to receive proper treatment—treatment similar to that which is obtainable by women who live within certain other areas—and these magistrates have been endeavouring for many years to get this position cleared up. I hope that when this Measure comes into force it will be made known not only to the smaller circle of lawyers but throughout the country so that women who are entitled to relief will know what are the means of obtaining that relief available to them.
I do not think that at this late hour one can say much more than that. I want 2364 to conclude by impressing upon hon. Members the fact that this Government has taken steps to increase the amounts recoverable for maintenance of women. One hon. Member said that in Ireland £3 a week could be recovered for maintenance whereas in this country only £2 could be granted. That is not correct. This Government has seen to it that the amount which can be obtained is £5 a week instead of £2, and the amount for a child £2 and not £1. Therefore, he was wrong.
§ Mr. Janner
I cannot remember. I have got the Bill with me here. However, if it was a Private Member's Bill, then the Government facilitated its progress. The hon. and learned Gentleman knows very well that if the Government had decided to oppose a Bill of that nature they could easily have done so. That Measure was carried through with the encouragement and with the support of the Government. It was not carried through by a Conservative Government. It did not appear until this Government, with its great humane outlook—[Laughter.] Yes, indeed; many Measures have gone on the Statute Book owing to that humane outlook—Measures which should have been on the Statute Book many years ago. However, I do not want to pursue that matter; this would probably be out of order. I feel sure that the whole House will accept this Measure with acclamation.
§ 9.35 p.m.
§ Mr. J. Enoch Powell (Wolverhampton, South-West)
I rise only to put to the Attorney-General a question of general import which I hope he will answer for the benefit of a mere layman, because although of general import it is a question which I think the House ought to consider when giving a Second Reading to this Bill. The Lord Advocate did not under-estimate the constitutional importance of the Bill. He described it as "a departure from the existing law of jurisdiction"—a law which I believe is of immense antiquity both in respect of Scotland and of Ireland.
The great constitutional lawyer in another place to whom my hon. and 2365 gallant Friend the Member for Belfast, North (Lieut.-Colonel Hyde) referred, described this Measure as making the Union of 1707 a more complete union. I understand that it does so by extending in respect of a certain type of action the jurisdiction of courts of summary jurisdiction and the area of enforcement of orders which they make.
The question I want to ask the Attorney-General is this: Is there not a much wider class of actions to which the same limitation at present applies—the limitation which the Bill removes in this particular case. The reason given for this Bill—and it is a reason with which I entirely agree—is that it removes a cause of injustice to injured parties, but is that not equally true of other actions which still remain limited in respect of jurisdiction and enforcement? In short, I want the right hon. and learned Gentleman to make quite clear whether the House, by giving a Second Reading to this Bill, is not, in fact, committing itself to the principle of a much wider alteration to the law of jurisdiction.
§ 9.37 p.m.
§ The Attorney-General (Sir Hartley Shawcross)
We have had a very interesting discussion on this somewhat complex and complicated Bill and I should like to say how glad we are on this side of the House that the Bill has been so warmly welcomed. It has been a most interesting and, on occasion, entertaining discussion. The usual experience that I have had—and I expect the hon. and learned Member for Northants, South (Mr. Manningham-Buller), has had a similar experience—in the class of case with which this Bill is largely concerned is that the putative father is rather inclined, if I may use a carefully considered phrase, to hide his light under a bushel. It has rarely been my experience in cases of that sort that a number of people have come forward claiming to be the father of the illegitimate child.
But it has been notable in the case of this Bill that a number of hon. Members on the other side of the House have devoted themselves to proving that, in fact, they were, whether severally or collectively, the true parents of this admirable infant. If so, I am bound to say that the Bill has had an unusually long period of gestation. Between 1919 and 1939 2366 hon. Members opposite had, I think, at least 18 years in which they had ample opportunity not only to conceive but also to produce a Bill dealing with these matters and, indeed, as I understand from the history of that time, they had full time to devote to matters of this sort, for they were not otherwise fully occupied with useful legislation. But the fact is that there is nothing in any way illegitimate about this Bill. It is the result of a lawful union between the Scottish Office and the Home Office, under their present Secretaries of State, and my position in the matter is simply that of a somewhat inexperienced accoucheur.
My hon. Friend the Member for Ayrshire, South (Mr. Emrys Hughes), in his most important and interesting speech, paid a great tribute—and I am sure one which was well deserved—to the virility of the Inniskilling Fusiliers. He followed the hon. and learned Member for Northants, South, in dealing with the point that, although this Bill will greatly diminish the possibilities which exist under the law as it now stands of husbands, or the fathers of illegitimate children, evading their responsibilities, there would remain cases in which evasion would still occur. Of course, that is very true. It is always possible that those who are so minded will be able to fly from their responsibilities by going to some other country where the King's Writ does not run.
I do not know that one ought specially to single out the Irish Republic in this particular connection. I do not know that there is any reason to suppose that faithless husbands or lax libidinous lovers go to the Irish Republic rather than to other countries on the Continent of Europe. But I certainly do not exclude the possibility that by agreement—and it can only be done by agreement—arrangements, not I think for concurrent jurisdiction, but for mutual enforcement, might be made with the Irish Republic or perhaps with other countries. We have, of course, no powers to legislate for the Irish Republic—no more power to legislate for that country than we have to legislate for any other country which is outside the British Commonwealth—and arrangements of the kind contemplated by the hon. and learned Member for Northants, South, and by my hon. Friend the Member for Ayrshire, South, and other hon. Members who succeeded in 2367 speaking about this matter before they were ruled out of order, could only be brought about by the establishment of, first of all, treaty relationships in regard to the matter, and subsequently by the legislation of the respective countries implementing the treaty arrangements.
I say that it would be necessary to have not only treaty arrangements dealing with the matter but then in each country to have legislative provisions implementing those treaties, because this is not a matter which can be dealt with by treaty alone. In other spheres it is indeed possible to make comparable arrangements by treaty or by contract. In the law of motor insurance, arrangements of that kind are sometimes made. But here, where one is dealing with questions between different countries, we need not only a treaty but legislation as well, and that can only be accomplished by agreement. I do not think I ought to say anything more about that, except to say that I do not by any means exclude the possibility that in relation to the Irish Republic, or possibly other countries with which there is frequent intercourse, arrangements of this kind might be concluded.
The hon. and gallant Member for Edinburgh, West (Lieut.-Commander Hutchison) called attention to the fact that existing orders made, either by the courts of this country, or the courts of Scotland, or the courts of Northern Ireland in past years, although not now under the existing law enforceable in other parts of the United Kingdom, will, under the provisions of this Bill, become capable of registration in those other parts of the United Kingdom where the defendant may be residing, and will thus be enforceable there. That is certainly the result of the provisions of the Bill. I am very glad to have had the hon. Member's enthusiastic support for this principle of retrospective legislation.
The hon. and gallant Member for Edinburgh, West, asked, as did also the hon. Member for Henley (Mr. Hay), about the position in the case of proceedings taken by the National Assistance Board. I understand the position to be that the National Assistance Board is empowered under the existing legislation to bring proceedings in England against a defendant who is in England and in Scotland against 2368 a defendant who is in Scotland, but that there is no enforceability across the Border. The Bill will now make orders obtained in proceedings of that kind enforceable across the Border in just the same way as they will be enforceable where the proceedings have been taken at the instance of the woman herself.
The hon. and gallant Member for Edinburgh, West, also asked whether the Bill applied to other countries in the Commonwealth. The answer is, of course, that it does not, and that a Bill of the United Kingdom Parliament could not apply in that way. There is a Statute passed in agreement with other countries, and implemented in agreement with them, to which the hon. Member for Henley did refer, the Maintenance Orders (Enforcement Facilities) Act, 1920, which contains certain machinery relating, not I think to affiliation orders, but to maintenance orders and orders for the guardianship of infants. It permits enforcement in other Commonwealth countries. That, unfortunately, is not an Act which applies to Scotland, and consequently its machinery is only available in this country. This Bill cannot amend that Act.
Then there was the speech made by the hon. and gallant Member for Belfast, North (Lieut.-Colonel Hyde), whom I am glad to see back in his place. He, most appropriately, chose the Bill as the subject of a maiden speech. It is very usual, in congratulating a maiden speaker from this Box, to say that he has shown great knowledge of the subject matter on which he has spoken, and to hope that on future occasions he will give the House the benefit of his experience in the same matter again. I feel that if I were to say anything of that kind on this occasion, it might be open to some misconstruction. However, I should like to congratulate the hon. and gallant Member on the speech which he made and on the cogency of the arguments which he advanced. I am sure that the whole House will look forward to hearing him speak again, if not upon this matter, at any rate upon other matters. The hon. and gallant Member also asked about the position in regard to the National Assistance Board. I have covered that point in the observations that I have just made.
The hon. Member for Henley asked whether it would be possible to amend 2369 the National Registration Act to enable us to trace absconding husbands or absent lovers through the national registration machinery. That is a very wide problem which is not confined to orders of the kind contemplated by the Bill. I hardly think it is a matter within the scope of the present Measure. The hon. Member for Wolverhampton, South-West (Mr. Enoch Powell) asked whether there was not a further class of action where the principle embodied in the Bill could be applied. There may be other cases and I should think that is quite possible. But the most difficult class of case is where an order is made for the payment of a weekly sum. Where there is an order for a payment of a lump sum by way of damages or whatever it may be, the judgment of one part of the United Kingdom may be enforced in the other parts as a judgment debt. The difficulty is more acute where the order provides for a payment week by week. It is not convenient to sue each week as the money falls due. I think that we have met the most important class of case in the Bill.
I now come to the point raised by my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) following the hon. and learned Gentleman the Member for Northants, South. He raised what is, I think, the only point of substance and, indeed, of difficulty in the Bill, the point which arises on Clauses 3, 8 and 11 in regard to the jurisdiction of the court in affiliation cases. I concede at once that to make the act of intercourse the basis of jurisdiction is something quite novel. I do not condemn it on that ground. I do not condemn any proposal for the amendment of our law on the ground that it introduces some novel principle. On the contrary, there is a lot of dead wood in our law that one would like to see cut out and a good deal of new wood that might well be grafted in.
However, there are difficulties about this matter. There is the obvious difficulty that in the material period prior to the birth of the child there may have been a number of acts of intercourse, some in one part of the United Kingdom and some in another. I am told that such cases of consecutive concupiscence are not unknown. That difficulty can be overcome and we contemplate overcoming it on the Committee 2370 stage by providing that any act of intercourse which may have caused the birth will be sufficient to found the jurisdiction of the court. There are, however, other cases. The hon. and learned Gentleman mentioned one, and I am bound to say that it occurred to me the other night as I was travelling up to the north of England in one of those excellent sleeping compartments provided by British Railways. I observed that it had a communicating door into the next compartment, and I watched with curiosity, as my hon. and gallant Friend the Member for Brixton is apparently inquiring, to see what might happen. As a matter of fact, nothing happened. All was well. The door remained closed. On inquiry I found that the hon. Member for Wavertree (Mr. Tilney) was travelling in the next compartment. I suppose that it might occur, as the hon. and learned Gentleman suggested, that the sleeping compartments of the Scottish express might be used by sleeping partners for the purpose of clandestine concubinage.
§ Mr. Manningham-Buller
I did not make any suggestion of that sort, but I would be interested to know why the right hon. and learned Gentleman seeks to retain the proof of this fact as a basis for jurisdiction between English and Scottish courts.
I am coming to that. I have emphasised these difficulties only for the purpose of assuring the hon. and learned Gentleman that we have had these points very much in mind. For the most part, I cannot help thinking that difficulties of the kind which have been canvassed here—such as the last one about "Where was the train at the material time?" —are difficulties of a theoretical rather than a real nature.
The difficulty which we have had to face in drafting the Bill is really this. Under the law as it exists at present, as the House will understand, jurisdiction in these cases is in general that of the place—I am taking now the case of England and Northern Ireland—in which the mother resides, provided that the putative father is also within Northern Ireland or England as the case may be. In Scotland, following what is the more usual practice, jurisdiction depends on the residence of the defendant. The result is that the Eng- 2371 lish girl seduced in England by a Scotsman resident in Scotland has to go to Scotland, under the existing law in order to obtain her affiliation order. A Scottish girl seduced by an Englishman, if such a case arose, can only sue in England if she first acquires a residence in England. In both cases a very inconvenient situation results, and the problem was, how to resolve that difficulty.
The Bill proposes, so far as Northern Ireland and England are concerned, to extend the jurisdiction in two ways: first, by giving the courts of the residence of the mother jurisdiction notwithstanding the fact that the putative father is outside England, or Northern Ireland as the case may be; secondly, by giving jurisdiction to the courts of the residence of the defendant notwithstanding that the mother resides elsewhere. In the case of Scotland the Bill extends the jurisdiction by giving it to the court of the residence of the mother although the defendant is living in another part of the United Kingdom.
If the matter had been left there, as I understood the hon. and learned Gentleman to suggest, the result would be that the defendent in Scotland, deprived of the protection which he has under the existing law of only being sued in the country and under the law of his residence, might, for instance, find himself summoned by a complainant at Land's End in a case where all the evidence was really Scottish evidence. It was felt strongly that it would be wrong to make a man who is resident in one country answerable to the courts of another country unless the conduct for which he is called upon to answer has been committed in that country.
A woman in England ought not to be allowed to proceed in England against a putative father resident in Scotland where the intercourse took place in Scotland, because the whole basis of the proceeding is something which really occurred not in England but in Scotland. I think it is true as a general rule not invariably, but as a general rule—to say that the material evidence usually is to be found in the place where intercourse has taken place—evidence by the chambermaid from the small hotel, for instance. That is why we came to the conclusion that in the generality of cases it probably would be 2372 convenient to make this the test of jurisdiction, unusual as I agree that test must be. However, we will consider between now and the Committee stage the arguments raised by the hon. and learned Gentleman. If we can find any other convenient test to avoid the kind of difficulty I explained to the House, we will see whether we can introduce it but, so far, although a lot of thought has been given to the matter, no other suitable test has been found.
That was the only real point of principle which arose in connection with this Bill. Other matters of detail were raised and we may have an opportunity of considering them in Committee, but the general principles have received unanimous approval and I think we are all agreed that the intentions of this Bill are honourably to enforce the obligations of those who have not had honourable intentions.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Standing Committee.