§ Not amended (in the Standing Committee), considered.
§ Clause 1.—(VALIDITY AND ALTERATION BY COURT OF MAINTENANCE AGREEMENTS.)
§ 11.6 a.m.
§ Mr. D. M. Keegan (Nottingham, South)
I beg to move, in page 1, line 5, to leave out from the beginning to "agreement" in line 6 and insert, "This section applies to any".
I should like to have your guidance about these Amendments in my name on the Paper, Mr. Speaker. There are three which could conveniently be taken together if that course would be satisfactory to the House.
§ Mr. Keegan
The first, which I am moving, and that in page 1, to leave out lines 17 and 18; and that in line 19, to leave out "the agreement" and insert:an agreement to which this section applies".
§ Mr. Keegan
The House may well have the impression that discussing these Amendments is rather an "Alice Through the Looking Glass" affair, for the Second Reading of the Bill was obtained "on the nod" and its consideration in Standing Committee was achieved in the well-nigh record time of about thirteen minutes, and yet now I have to propose a number of detailed Amendments to the Bill. If for the moment my remarks seem not to make sense, I hope that hon. Members will bear with me. It will be because the Bill has not been discussed in the House yet. I hope to be able, on Third Reading, to say a few words in general about the principles of the Bill.
As at present drafted, Clause 1 neither validates Bennett v. Bennett agreements under subsection (2) nor makes them variable by the court under subsection (3) unless the parties to itare for the time being both domiciled or both resident in England.1347 Lines 17 and 18 in page 1 of the Bill insert that qualification.
It is now thought that that is not an appropriate form for the Bill to take, and I therefore propose to take it out, but it will be introduced into the Bill again later in Clause 1. I think that is logical because there is no reason, in considering the question whether an agreement should be validated or not, why there should be any domicile qualification or residence qualification attached to the validation.
I think there is very good reason why such qualification should be attached to the question whether an agreement should. under the provisions of subsection (3), be varied, but it is not logical to have this provision in its present position. That is the reason for the Amendment to leave out lines 17 and 18. The other two Amendments now being discussed, although one comes before and the other after that one, are really consequential upon it.
§ Amendment agreed to.
§ Mr. Keegan
I beg to move, in page 1. line 12. at the end to insert:(b) an agreement containing financial arrangements, whenever made, such that, but for the next following subsection, it would be void or unenforceable in whole or in part by reason of including such a provision as is mentioned in that subsection; or.At present, Clause 1 (1, a) excludes from the Bill agreements made more than six months after the dissolution or annulment of a marriage. The obvious reason is that, after the divorce or annulment has taken place, the rights and liabilities between the parties should be left to the parties themselves. When the parties are man and ex-wife, they should be allowed to contract without the interference of any further legislation. Therefore, the six months' time-limit after dissolution or annulment was put into the Bill as originally drafted.
In those circumstances, quite clearly the parties should be entitled to enter freely into any bargain about maintenance. The reason for the Amendment is that some of the agreements made will be governed by the rule in Bennett and Bennett, and I do not see why the Bennett 1348 and Bennett agreements should not have the benefit of validation given under subsection (2) to an agreement made before six months have elapsed.
All this may be very difficult for those who have no knowledge of the case of Bennett and Bennett to understand. That was a case where a man and wife entered into a maintenance agreement in contemplation of divorce proceedings rather than rely on their right to go to court and apply for an order of the court. The only consideration moving from the wife was that she bound herself not to apply to the court for maintenance. When that case came for judicial consideration, the whole agreement was void because it was an attempt to oust the jurisdiction of the court. This has had the effect in a number of cases, where the husband has later died, of leaving the wife destitute, having relied on an agreement subsequently invalidated.
In the normal course of events the Bennett and Bennett type of agreement is made within six months, but it is possible for that type of agreement to be made a long time after divorce in certain circumstances. It is quite possible for a wife in divorce proceedings to obtain an order of the court in the normal course of events and ten years later she might desire to apply to the court for a variation of that order, perhaps on the ground that the children have grown up and because of the increased cost of their education it is necessary for her to obtain more money for maintenance purposes. She might approach her ex-husband and say, "I am applying to the court for increased maintenance under the original order made in the divorce courts." He may say, "Don't bother to do that. We will enter into an agreement."
The agreement would be guided by the rule in Bennett and Bennett. She would contract not to apply to the court for a variation and he would contract to pay increased maintenance. If the husband were to die, the agreement would be invalid. The executors would have to take that view of the matter and the wife would not have the increased maintenance to which she would have been entitled if she had applied to the court in the first place. The proposed Amendment seeks to remove from the Bennett and Bennett type of agreement the six months' limitation on maintenance 1349 agreements in general, with the result that the circumstances which I have just described would not arise. Whilst the Amendment gives the benefit of validation, it will be observed that a later Amendment does not make the agreement variable under the provisions of Clause 1 (3).
§ Mr. Philip Bell (Bolton, East)
Could my hon. Friend the Member for Nottingham, South (Mr. Keegan) explain one provision in subsection (2), which is linked with the Amendment and which states:If the agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, that provision shall be void but any other financial arrangements contained in the agreement shall not thereby be rendered void…What about arrangements which are not financial arrangements? The Amendment seems to pick out financial arrangements only and does not deal with such things as agreements dealing with undertakings not to molest and living apart. Ought they not to be covered?
§ 11.15 a.m.
§ Mr. Keegan
The answer is that subsection (2) validates the Bennett and Bennett type of agreement which, under the decision in that case, are now invalid as my hon. and learned Friend will, of course, realise. All other sorts of maintenance agreements are not invalid and there is no necessity to validate them by virtue of the Bill. What the Bill seeks to do with the other agreements is simply to make them variable.
§ Mr. Ede (South Shields)
In view of the conflict on the other side of the House, could the Solicitor-General give us any guidance as to whether in his view and that of the Government the Amendment should be accepted?
§ The Solicitor-General(Sir Harry Hylton-Foster)
It gives me great pleasure invariably to accede to the charming invitations of the right hon. Member for South Shields (Mr. Ede) to talk. I understand that the basis of this is that there are lots of little Bennetts and Bennetts about, if I may put it that way. It was a common form of agreement set out in the encyclopaedia, and distinguished practitioners used to copy it word for word, 1350 for their own profit no doubt. But I do not think that there is any difficulty between my hon. Friend the Member for Nottingham, South (Mr. Keegan) and my hon. and learned Friend the Member for Bolton, East (Mr. P. Bell). The Clause takes out of that type of agreement the invalidity resulting from this single vice, and the single vice once having been rejected the rest of the agreement automatically stands.
§ Mr. G. R. Mitchison (Kettering)
There is one question I should like to ask. Subsection (2) applies to agreements and it contains a proviso at the end that no right or liability is to attach in respect of a period falling before the commencement of the Bill as an Act. It has not escaped my attention that there is another Amendment on the matter on the Order Paper. Is it the position that the intention and effect of the subsection is to validate agreements which were illegal when they were made, that is to say, before the commencement of the Act?
I wonder if the hon. Gentleman responsible for the Bill, or the Solicitor-General, can tell us if that is so, and if they will give us their views on what appears to be a piece of retrospective legislation.
§ Mr. Keegan
The answer to the question of the right hon. Gentleman the Member for South Shields (Mr. Ede) is that the Bill seeks to validate the agreements contained in the definition of agreements in Clause 1 (1) retrospectively, but it is retrospective only in the sense of validation. In other words, it validates them whenever they were made but, as the hon. and learned Gentleman has remarked, it validates them without making the covenantor under the agreement liable for any arrears of maintenance during the period when the agreement had not been valid.
In other words, to look at a practical case, suppose an agreement which has been declared invalid by virtue of the decision of Bennett and Bennett were made, say, ten years ago, that agreement is validated retrospectively in the sense that it is a ten-year-old agreement declared invalid and now validated by the Bill. But, of course, the person who had the right to the maintenance under that agreement cannot take proceedings for ten years' arrears of maintenance. 1351 Therefore, it is retrospective only in the sense that it validates retrospectively. It does not seek to give any right to sue for arrears under what has been an invalid agreement.
§ Amendment agreed to.
§ Further Amendments made: In page 1, leave out lines 17 and 18.
§ In line 19, leave out "the agreement" and insert "an agreement to which this section applies".—[Mr. Keegan.]
§ Mr. Keegan
I beg to move, in page 2, line 4, after "that," to insert:
- (a) where the party chargeable under the agreement has died before the date of the commencement of this Act—
- (i) this subsection shall not apply to that agreement unless there remain undistributed at that date assets of that party's estate (apart from any property in which he had only a life interest) representing not less than four-fifths of the value of that estate for probate after providing for the discharge of the funeral, testamentary and administrative expenses, debts and liabilities payable thereout (other than any liability arising by virtue of this subsection); and
- (ii) nothing in this subsection shall render liable to recovery, or impose any liability upon the personal representatives of that party in respect of, any part of that party's estate which has been distributed before that date;
§ (b).This is perhaps the most complicated Amendment on the Order Paper today, and I will give the reasons for it.
§ It Will be observed that, as drafted, the Bill does not validate agreements where either party has died before it comes into force since it could not be said in such a case that the parties were both either domiciled or both resident in England. As drafted, the Bill states in lines 17 and 18 on page 1 that for the agreements to be included in the Bill the parties thereto are—
"… for the time being either both domiciled or both resident in England."
§ So it is clear that if they had died it could not be said that they were either both domiciled or both resident in this country.
§ The Amendment to Clause 1 (1) which, by omitting lines 17 and 18, removes that qualification would, if there were no further Amendment, apply the Bill whether or not one of the parties were dead before the Act comes into force, and regardless of what had previously 1352 been done by way of distributing his estate. In other words, by the removal of that residence qualification it would leave wide open the question of what would happen in the case of where a covenantor had died and his estate had been distributed through the executors to the beneficiaries. Clearly that would not be satisfactory because rights which have vested many years ago ought not to be upset retrospectively to the prejudice of those who have spent their legacies or ordered their affairs on what was then a correct interpretation of the existing law.
§ The difficulty which presented itself was this. It would be easy to exclude altogether cases where one of the parties is already dead, and this would have the advantage of avoiding retrospective legislation, but it would cause in some cases an avoidable hardship, particularly where the husband had recently died immediately before the passing of this Bill, and there are funds in the hands of the executors which would be amply sufficient to honour the agreement but which they cannot so use because it would have been a breach of trust. Clearly they cannot pay out under an invalid agreement.
§ The intention is always perfectly clear in Bennett v. Bennett agreements, namely, to benefit the wife. For the reasons we have discussed—the case of Bennett v. Bennett—declared those agreements void by the counts. This has given what is, in effect, an uncovenanted benefit to many estates because when the covenantor has died and the executors take the point of view that the agreement is invalid, the estate may gain by the capital sum represented by the income that would have been paid to the wife. It was the intention of the husband to benefit the wife for her life, and it is only by this decision that that has not been done.
§ Certainly a compromise is needed on this point. To include all cases where the estate had not been completely distributed, however, would have been equally difficult. Take the case of a partial distribution. Suppose there had been a wife's interests under the agreement of, say, £500 a year, and the estate had been three-quarters distributed at the time this Act comes into force. It would have meant that the quarter interest, if sufficient to bear the wife's life interest, would then have been applied for the 1353 benefit of the wife by virtue of this Act. But it would have fallen entirely upon those beneficiaries who had not been fortunate enough to have been paid out by the executors in the first place, and of course that would have created an unnecessary and unwarrantable distortion in the administration of the estate. It is likely that it may well have fallen upon one infants' fund which had not been distributed.
§ I think the reasons why it cannot be said in the Bill that all estates which are not completely distributed would have to bear the burden of paying the wife are these. It is always difficult to say, first, at what moment the distribution is complete or, secondly, that where a partial distribution has taken place—and this is the one I have been talking about—it is unfair on these beneficiaries who are last in the list to be paid out, because executors very often, when they have money in hand, pay the pecuniary legacies first, and some complicated trusts—infants' funds and so on—are retained until the last. It would be manifestly unjust to make those retained assets bear the whole of the burden of the wife's maintenance.
§ There is also this to be considered and it is the third reason. The beneficiaries entitled to the income of a trust fund may well have altered their positions. After all when one comes into money under a will one is entitled to take the law just as one finds it, and is entitled to base one's expectations on that. It would be most upsetting in many cases if beneficiaries had made arrangements on the basis of receiving a legacy only to find that, by virtue of this Measure, the legacy would not come to them until the wife's life interest had been satisfied.
§ An alternative solution would have been to exclude altogether from the Bill cases where any part of the estate had been distributed, but there are objections to this as well. One objection is that in the case of large estates small pecuniary legacies are often paid out almost immediately on the grant of representation, and it would be absurd to exclude from the Bill an agreement for the payment of substantial maintenance merely because out of the net estate of, say, £100,000 a pecuniary legacy of £50 had already been paid, because then there would be a substantial balance.1354
§ It is perhaps an exaggerated case, but where there is a substantial fund still left in existence, it would be wrong not to pay out the wife's life interest, as was the intention of the covenantor. The provision that where any part of the estate had not been distributed the agreement should not be honoured would put executors in a very invidious position because executors ready to pay such a legacy might defeat the surviving ex-spouse's intention. An executor who paid a pecuniary legacy immediately would be in a difficult position if, by paying it, it would defeat the wife's life interest.
§ 11.30 a.m.
§ The only compromise that appeared to be possible in this difficult matter has been to reduce it to a question largely of arithmetic. The Amendment seeks to include in the Bill only those cases where distribution has proceeded to such a limited extent—one-fifth—that any retrospective effect would be unlikely either to throw an unfair burden on one section of the beneficiaries or divest them of their rights in the case of those who have altered their position on well-founded expectations.
§ It may seem strange to decide the question as to whether an agreement of this sort should be valid retrospectively or not on the question of how much of the estate has been distributed, but I think that from what has been said it is clear that there are objections to any other course. I think the compromise has erred on the right side. It ensures that there is still a very substantial portion of the estate undistributed, so that the wife's interest will not throw an unfair burden upon any particular beneficiary. This is the solution adopted by the Amendment.
§ The precise moment at which beneficiaries may alter their position or the fund retained become insufficient to honour the agreement without injustice will vary from case to case. The Amendment errs on the side of caution in providing if more than one-fifth of the estate has been distributed, the agreement will not be validated by the Bill.
§ The Amendment can be summarised as follows. If more than one-fifth of the net estate, after the deduction of duty, debts, etc., has been distributed before the day on which the Bill comes into force—one month after it is passed—the 1355 Bill will not operate to validate the agreement. If not more than one-fifth has been distributed, the agreement will be validated, but its validation will not affect any part of the estate which has been distributed or impose any liability on the executors in respect of that part.
§ Mr. Mitchison
How seasonable is the casual reference of the hon. Member for Nottingham, South (Mr. Keegan) to estates of £100,000. The Finance Bill is coming shortly. As to his Amendment, it seems to me to be rough justice of the "justice under the village tree" order, and will no doubt relieve a number of trustees faced with a choice between being legal cads and perfect gentlemen acting in breach of trust.
§ Mr. Philip Bell
I do not want to make it awkward for my hon. Friend the Member for Nottingham, South (Mr. Keegan), but there seems to be one case not covered by the Amendment. Suppose a beneficiary, forced by the high level of taxation, has gone to his bank to raise money on his expectation thinking that he could pledge his share in the residue in order to raise an overdraft. He might then find that, as a result of this Measure, he cannot get his share because it is to be retained, and he may put himself in a position of liability. Distribution is not the only test of money having changed hands. If a beneficiary charges his interest, from his point of view it is the same as if it has really been distributed to him. Can any help be offered in this respect?
§ Mr. Keegan
I realise the difficulties. I am not altogether out of sympathy with the statement that this is rough justice —I think it is—but what must be remembered is that by virtue of the decision in the case of Bennett v. Bennett these estates have realy been given an un-covenanted benefit. It is clear that in equity the agreement ought to prevail. It is nearly always the prior right of a wife to maintenance which is under consideration.
Although I have sympathy with the beneficiary who obtains credit on the basis of his expectations, there is a prior moral claim, that of the deserted wife who would be left destitute if the agreement were not validated. It is a very fine balance 1356 indeed, but on the whole I believe that the Amendment is right and that it should err on the side of paying the wife's interest, for it was clearly the intention of the agreement to do so.
To give estates the uncovenanted benefit they will get if the agreements are not validated would be worse than to put beneficiaries in the difficult position of having borrowed money on their expectations. It must also be remembered that the interests of the wife are, after all, only life interests, and while beneficiaries may suffer some postponement of their legacies, they will get them in due course.
§ Amendment agreed to.
§ Mr. Keegan
I beg to move, in page 2, line 8, after "Where", to insert:an agreement to which this section applies otherwise than by virtue only of paragraph (b) of subsection (1) thereof is for the time being subsisting and the parties thereto are for the time being either both domiciled or both resident in England and ".The Amendment is consequential to that to Clause 1 to delete lines 17 and 18, and I referred to this Amendment when we discussed the earlier one.
The effects of the Amendment will be that, although validated under Clause 1 (2), the Bennett v. Bennett agreements will not be variable by the court under Clause 1 (3) in the following cases: where the agreement was made more than six months after the dissolution or annulment of the marriage, or where at the time variation is sought the parties are not both domiciled or resident in England. The domicile and residence test has been brought back into the Bill where it belongs, and it gives the court jurisdiction to hear the question as to whether the agreements ought to be varied or not.
§ Amendment agreed to.
§ Mr. Keegan
I beg to move, in page 3, line 9, to leave out "the agreement" and to insert:an agreement to which this section applies".This is a drafting Amendment consequential upon the Amendments made to Clause 1 (1).
§ Amendment agreed to.1357
§ Clause 2.—(ALTERATION OF MAINTENANCE AGREEMENT AFTER DEATH OF ONE PARTY.)
§ Mr. Keegan
I beg to move, in page 3, line 30, to leave out from "agreement" to "provides" in line 31 and to insert:to which the foregoing section applies".This Amendment is consequential.
§ Amendment agreed to.
§ Mr. Keegan
I beg to move, in page 3, line 33, after "dies", to insert:after the commencement of this Act".Clause 2 refers to the right to vary agreements after the death of one of the parties, and I hope to say a few words about that at a later stage. The Amendment makes it abundantly clear that Clause 2 does not apply where one of the parties has died before the Bill comes into force. In other words, it applies only after the Bill comes into force where one of the parties to an agreement then dies. I think it is already implicit in the Clause, but the Amendment makes it clear beyond per-adventure that where one of the parties to the agreement has died before the Bill comes into force, the agreement can be varied afterwards. To apply the Clause to deaths before the Bill would mean the introduction of retrospective legislation where there is no need for it, as opposed to where, I believe, there was a need for it in Clause 1.
§ Amendment agreed to.
§ 11.41 a.m.
§ Mr. Keegan
I beg to move, That the Bill be now read the Third time.
I now have an opportunity to say a few words about the Bill as now amended. First. I should like to thank those Members who so very kindly came to the Standing Committee which considered the Bill, a stage which, as I have already said, took place in record time upstairs, the reason being that a quorum would certainly not have been kept on a day when there were few other duties in the House of Commons. There was, therefore, no opportunity to speak about the Clauses on the Motion, 1358 " That the Clause stand part of the Bill". for fear of losing a quorum.
The scope and reason for the Bill are, as I think has become explicit in the short discussion that we have had today, to validate certain types of maintenance agreements and to give the courts a jurisdiction which they have not had before to vary maintenance agreements when the circumstances are right. We have not said anything about that because there were no Amendments to that part of the Bill.
I should like to draw the attention of hon. Members to Clause 1 (3), which sets out the circumstances in which a maintenance agreement may be varied. In fact, they are these:the court may by order make such alterations in the agreement by varying or revoking any financial arrangements contained therein or by inserting therein financial arrangements for the benefit of one of the parties to the agreement or of a child of the marriage as may appear to the court to be just having regard to all the circumstances.…That is a useful provision. It is true that we regard the law of contract as generally sacred and do not like interfering with the law of contract by Act of Parliament, but it must always be remembered that the type of contract or agreement with which the Bill is concerned is a maintenance agreement and that puts it into a very special category. The bonds of maintenance agreements are made between parties where there is a common law right of one to apply for maintenance against the other. The fact that the courts are now given power to vary them should not exercise hon. Members too greatly.
There are one or two things about the Bill which I want to point out. In the definition subsection of Clause 1 the expression "child of the marriage" is shown to include… any child of both parties to the marriage. whether or not born in lawful wedlock, and any child adopted by both parties to the marriage.…It will be seen that Clause 1 (3) refers to a child of the marriage, so that a variation may be made for children under that definition.
In the case of a stepchild, where there is no liability on the father to support the stepchild, if he has in fact by the original maintenance agreement contracted to do so, that provision can be 1359 varied, but the justices or High Court will have no power to write in a provision in the maintenance agreement for the support of a stepchild, unless it was originally there to begin with. I think that that is right. If the father has taken upon himself the care and support of a stepchild, it is right that the court should be able to vary or revoke that, but it would not be right for the court to impose that, had he not accepted it in the first place.
Hon. Members will see that Clause 1 (3) gives the High Court jurisdiction, and in certain circumstances the magistrates' court jurisdiction. I think that the provisions dealing with the magistrates' court are perfectly clear and follow the practice now existing, the summary jurisdiction practice. In other words, the magistrates' court may not vary an agreement in excess of the amount of £5 a week maintenance for the wife or other party to the agreement, and in excess of 30s. for each child of the marriage. There is an extra qualification about the jurisdiction of the magistrates' court in that one of the parties must be resident within that petty sessional district. That follows the standard practice of magistrates' court proceedings.
I want to draw the attention of hon. Members to Clause 1 (5). That has been inserted, as it says, for the avoidance of doubt. It says:… nothing in this section affects any power of the court before which any proceedings between the parties to the agreement are brought under any other enactment to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.In other words, it emphasises that the Bill does not create any new statutory rights and obligations between man and wife. What it does is to reinforce them and validate them. Those who have great experience in these matters will be glad to find that subsection in the Bill, because it makes it clear that a wife is not bargaining away her power to go to the court, and this clarification will not result in collusive bargaining over maintenance agreements.
As there have been minor Amendments to Clause 2, perhaps I should say a few words about it. Clause 2 means that where a party to an agreement dies after 1360 the passing of the Bill, the other party can apply for a variation of the agreement in the same way that he or she could have done had the deceased party been alive at the date the application was made. It is right that where there is a death of one of the parties to an agreement after the Bill becomes law, the surviving party should have the same rights of the variation against the executors of the estate as he or she would have had if both parties to the agreement were still alive.
There is not much more that I need to say about the Bill. It fills a very useful function. It is only a small measure of reform, but none the less, a worthwhile one. By virtue of this strange decision of Bennett v. Bennett there can be no doubt that there are many cases of wives who have depended for maintenance on maintenance agreements which they have found sooner or later, and much to their chagrin, to be void by reason of the decision in that case. The Bill seeks to validate those agreements and does so in the circumstances which we have discussed.
There is no doubt that the husband's liability to support his wife is real and genuine. Although the decision of Bennett v. Bennett may have been clear and logical and although it may have been right and proper for it to have been made, it was unfortunate in the sense that it left a number of wives in an extremely doubtful and difficult position in respect of the validation of their maintenance agreements. The Bill will go a long way towards meeting their needs, and I can certainly recommend it to hon. Members, hoping that when it goes to another place, it will not there be felt necessary to alter it too much.
§ 11.48 a.m.
§ The Solicitor-General—no debate on the Motion for the Second Reading of the Bill—I am greatly obliged to the right hon. Gentleman for the correction— I did not have an opportunity of doing what one would have wished to have done, namely, to congratulate my hon. Friend the Member for Nottingham, South (Mr. Keegan) on his good fortune in the Ballot and the use that he 1361 has made of it. He has thanked those right hon. and hon. Gentlemen who have helped the passage of the Bill, and I am sure that they would like, as I should like, to thank him.
The gay way in which the Bill has sailed through the House has been due in no small part to my hon. Friend's swiftness and lucidity in explaining what the Bill was about and what it did. I know that those of us who are members of the Bar have long been concerned with the danger which arises in a number of cases as the result of the existing law, a danger which will be obviated by the Bill. I need not enumerate the type of hardship, because my hon. Friend has referred to it. I am sure that many people will be grateful to him for the way in which he has used his good fortune, and I am glad to be present when the House is about to give, I hope. a Third Reading to the Bill.
§ 11.50 a.m.
§ Mr. Marcus Lipton (Brixton)
I should like to join in the expression of good will extended to the hon. Member for Nottingham, South (Mr. Keegan), who has been fortunate enough to get the Bill through to its present stage. I merely rise to express the hope that the Bill will induce the Government to pay further attention to some of the other recommendations made by the Royal Commission on Marriage and Divorce. The comparative ease with which the Bill has gone through should, perhaps, persuade the Government to sponsor further legislation in giving effect to some, at any rate, of the recommendations of that Royal Commission. Quite a number of the recommendations represent the unanimous view of the members of the Royal Commission, and I hope that, in the circumstances, further legislation in this connection will not be too long delayed.
§ 11.51 a.m.
§ Mr. Mitchison
I wish to associate myself with my right hon. and hon. Friends in the congratulations offered by the Solicitor-General to the hon. Member for Nottingham, South (Mr. Keegan), who introduced and explained the Bill. It seems to represent a very useful step towards that reconciliation between moral justice, as recognised by the ordinary man, and legal justice which is necessary from time to time, for the law does not always follow as quickly upon the heels of moral justice as it should. 1362 In that, I feel sure, I shall have the cautious agreement of the Solicitor-General.
I take this opportunity of calling the attention of the House to one more matter. There has been no Second Reading discussion of the Bill. It has really not been discussed at all, unless a great deal more was done in a few minutes than I supposed until today could be done; and the Bill, we all hope, is about to become law after a discussion on the Report stage of quite a number of Amendments, some of them of some importance. and a short Third Reading debate.
I am not complaining that that is happening, but it seems to me rather a commentary on the procedure of the House that it should happen, and I contrast it with what has been happening on another Bill in Committee which has been held up for sitting after sitting. I say no more about that—I should certainly not be in order in doing so—but I feel that what has happened in the case of this Bill is, from an entirely different point of view, also a not wholly satisfactory matter from the point of view of procedure on Private Members' Bills in the House. We are all agreed, I think, about approving this Bill, and in this case no harm has been done. However, it is not quite satisfactory as a matter of procedure.
§ 11.54 a.m.
§ Mr. Ede
The Bill commands such unanimous support among the lawyers that one must regard it with the greatest suspicion, the more so in view of the opening remarks of the Solicitor-General in which he said that there had been no Second Reading for the Bill. In Committee upstairs on another Bill—one Bill was mentioned by my hon. and learned Friend the Member for Kettering (Mr. Mitchison)—I heard hon. Members say that it had had no Second Reading. May I take it as established practice that no Bill goes to Committee in this House unless the occupant of the Chair on Second Reading, whether moved formally or in the course of discussion, puts the Question and says, "Those of that opinion say 'Aye', to the contrary 'No'", and then, with that hesitant impartiality which distinguishes occupants of the Chair, says, "I think the Ayes have it," and when nobody contradicts that statement. 1363 becomes more positive and dogmatic and says, "The Ayes have it."
I know of no other way of a Bill getting to Committee, and unless a Bill has had a Second Reading I do not think that it can. My hon. and learned Friend the Member for Kettering is, I understand, a Member of a Committee considering the procedure of the House. When we were considering a previous Bill, that brought forward by the hon. and gallant Member for Wembley, North (Wing-Commander Bullus) dealing with parish councils, I drew attention to several of the difficulties that arise on procedure with regard to Private Bills. I do not want to say more than this at the moment—
§ Mr. Lipton
If my right hon. Friend will allow me, may I point out that he does not mean "Private Bills," but Private Members' Bills?
§ Mr. Ede
I thank my hon. Friend. It is always as well to have a barrister to advise one when one gets within any reasonable distance of legal phraseology. I can only say that I made the same kind of mistake as that made by the Solicitor-General, but I do not get nearly the same salary for making such mistakes.
I hope that the fact that the Bill today has only been explained to the House on Third Reading, when further amendment of it is impossible, will attract the attention of the Committee on Procedure to some of the difficulties under which we labour in dealing with Private Members Bills. Apart from that, and in the hope that this unanimous opinion of the lawyers in favour of the Bill is entirely disinterested, I hope the Bill will get its Third Reading.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.