HC Deb 18 April 1958 vol 586 cc507-13

11.38 a.m.

Sir Lynn Ungoed-Thomas (Leicester, North-East)

I beg to move, in page 2, line 6, to leave out "conclusive" and to insert "prima facie".

The Amendment raises a point on a matter which is perhaps technical in form but in which there is a good deal of practical substance, particularly from the point of view of the liberty of the subject and the way in which the subject should be treated.

The matter was put extremely concisely by the hon. Member for Ashford (Mr. Deedes) when moving the Second Reading of the Bill, and I cannot do better than quote his words. He referred to one matter to which the Royal Commission gave attention, and went on: As the law now exists, the spouse of a person serving in Her Majesty's Forces can be at a disadvantage compared with the spouse of a civilian. The short point is that at present a wife whose husband is in the Services and who is petitioning for divorce on grounds of her husband's insanity cannot rely on any period during which he has been receiving care and treatment in a military or naval hospital. Only care and treatment pursuant to an order or warrant under the Army Act falls within Section 1 (2) of the Matrimonial Causes Act, and such an order is not issued until the man is about to be transferred to a civilian hospital. Clause 1 (2) provides that a certificate from the Admiralty or the Secretary of State shall henceforth be conclusive evidence of the facts certified, and this will mean that mental treatment in a military hospital will qualify under Clause 1 (1, a)."—[OFFICIAL REPORT, 6th December, 1957; Vol. 579, c. 810.] I am all in favour of the substance of the whole of that quotation, except the short reference to the certificate from the Admiralty or Secretary of State being conclusive evidence of the facts certified. The Amendment is to substitute "prima facie evidence of the facts certified" in place of conclusive evidence of the facts certified. This kind of matter has been raised before on different Bills. I personally have always taken the view that certificates of this kind should be prima facie evidence rather than conclusive evidence, and I will briefly explain my attitude. I agree at once that there are categories of cases in which a certificate of the Secretary of State must be conclusive; for instance, matters dealing with international relations, Government decisions, policy matters, matters in which the Government must decide and in which inevitably the certificate of the Secretary of State should be accepted as conclusive evidence.

We are here dealing with an entirely different category of case. We are dealing with a case not of policy but of fact. The certificate of a Secretary of State on a matter of fact in civil litigation between two citizens is to be taken as conclusive evidence as the Bill now stands. I ask why.

It is inconceivable that any certificate in a similar case, if it were given not by a Secretary of State but by any organisation, however reputable, should be accepted as conclusive evidence. If provision were made for it being accepted as evidence at all, it would be prima facie evidence. It sounds very grand to refer to a certificate of the Secretary of State, but it is a certificate issued on information provided by civil servants who are as human and as subject to error as anybody else. There might conceivably arise difficulties of fact, and this is a certificate dealing exclusively with facts. There might be some kind of slip or some kind of mistaken identity—a difficulty of that sort obviously could arise. In those circumstances, why should the certificate be accepted as conclusive?

I agree at once that it is reasonable and administratively convenient that it should be accepted as prima facie evidence, but why should it not be possible for the person against whom the certificate is invoked to establish that there is some mistake about it, that there is something wrong about it and that the certificate is not correct? Why is it not sufficient for it to be accepted as prima facie evidence?

I appreciate the administrative convenience from the point of view of the Department of State concerned, because there can be no question of inquiry or of cross-examination. All the Department has to do is to issue the certificate and not be bothered about it any more. But why should it not be bothered about it any more? This is a matter in which a slip might occur and in which some mistake of fact might be made. Why should it not be possible for the certificate to be treated otherwise than as conclusive?

It seems to me utterly wrong in principle and impinging on what would normally be regarded as the liberty of the subject, and to be done for no other reason than administrative convenience. When an issue of this kind arises, we should come down quite firmly against administrative convenience. To accept the certificate as prima facie evidence is reasonable, but to provide that it should be conclusive evidence and that whatever mistakes may be made—and there is liability to mistake, of course—the certificate should be conclusive, is intolerable. While appreciating the strength of the administrative argument, I fail to see that there is any other argument, and on an issue of this kind the administrative argument should not prevail.

11.45 a.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I support the Amendment. Apart from the reasons already given, there is another matter which I want to raise. The Bill does not interfere with the basic requirement that the person concerned shall be incurably of unsound mind. It merely deals with the question as to what is meant by the words "being under care and treatment". I am a little worried about the words. shall he conclusive evidence of the facts certified". In subsection (2), the words used are: … a certificate by the Admiralty or Secretary of State that a person was receiving treatment for a mental illness during any period … shall be conclusive evidence of the facts certified. Supposing that the certificate stated that he was receiving treatment for a disease which rendered him incurably of unsound mind. Would the court have to accept that as conclusive evidence of his being incurably of unsound mind? As the matter stands, it may well be argued that that is the case because the words are shall be conclusive evidence of the facts certified". It very much depends on what facts are certified. What is the court to say in the case if the facts are certified in that way?

I appreciate the administrative difficulty which the subsection seeks to surmount, and I can well understand that from the administrative point of view such a certificate should certainly be prima facie evidence. However, I agree strongly with the Amendment that it is far too much to say that the certificate is conclusive evidence. In some cases, that would obviously rule out any possibility of error or slip which occurred being rectified by evidence adduced in the court at a later stage.

11.48 a.m.

The Solicitor-General (Sir Harry Hylton-Foster)

We do not burn with fervour about this one way or the other, but I am not sure whether the reason why the word "conclusive" is there is fully appreciated. The position under the Matrimonial Causes Act, 1950, as it stands would be that if a serving man were detained under an order or warrant under the appropriate Service Act, he would be deemed to be under care and treatment for the purpose of the Act as it stands.

The difficulty which the subsection in the Bill was designed to meet was that it is not Service practice to issue such an order or warrant until the moment comes to transfer the Service man from the Service hospital to a civilian mental hospital, and so the other party is robbed, as it were, for the purpose of her case, of the period of detention in the Service hospital.

The only point I am seeking to make for this purpose is that supposing the requisite certificate, order or warrant had been issued at the beginning of the term of incarceration in the Service hospital, that, for the purpose of these proceedings, would be conclusive evidence. All we are doing in the Bill is to enact that it should be possible to certify conclusively and in an exactly parallel way in relation to the time spent in the mental hospital. That is why it is not quite right to say that this is a matter of purely administrative convenience. It is merely to catch up on time that it is suggested that this should be regarded as conclusive evidence. I do not wish to say any more; I merely lay the foundations for any further discussion that might arise.

As for the point mentioned by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), I venture to submit that that is not a very great difficulty. The subsection enables a certificate to be used for certain evidential purposes only, and if it purports to contain evidential propositions outside the empowering of the subsection the court will not be entitled to treat it as admissible evidence. That is my view, but I would not run away from saying that if hon. and learned Members opposite or others feel some anxiety about the matter there will be an opportunity to consider it again later, and we shall do that. I cannot undertake to make any Amendment, because I believe that the present wording is right, but if there should be the slightest doubt about it perhaps the matter could be dealt with in that way.

11.52 a.m.

Sir L. Ungoed-Thomas

I appreciate the force of what the learned Solicitor-General has said about the warrant being conclusive and a certificate having the effect of, as it were, antedating the mental illness to a period before the date of the warrant, and that there might therefore be some discrepancy if the certificate, too, were not treated as conclusive. I am not satisfied with that argument. It seems to suggest that, although the regarding of the certificate as conclusive evidence may be said to be black, nevertheless, because there is also a warrant which is black, the two blacks make a white. That is hardly an acceptable line of reasoning.

I am not sure that the position in connection with the warrant would not be rather different from that of the certificate. If the warrant were issued as conclusive. I am not at all sure that the only thing with which the court would be concerned would be the identification of the man with the person referred to in the warrant. That, at any rate, might be susceptible to investigation in the court, but I am not sure that the certificate would not go rather further and be conclusive on matters on which the warrant would not be conclusive.

This is a matter which requires consideration, and I mention the point to show that I do not feel happy about the Solicitor-General's reply. I welcome his indication that, in some tentative sort of way, he is not completely opposed to the principle of the argument that I put forward, and I very much hope that he will reconsider the matter before the Bill is completely disposed of.

In those circumstances I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.54 a.m.

Mr. W. F. Deedes (Ashford)

I beg to move. That the Bill be now read the Third time.

When we first considered the Bill four and a half months ago, I said that I thought it was a short and very limited Bill, the objects of which I hoped the House would find generally acceptable. I also said that it was a simple Bill, and up to a few minutes ago I sincerely believed that to be so. Now I am not so sure.

I acknowledge with gratitude the help received from hon. Members on both sides of the House, not least from hon. and learned Members, without whose assistance I should have been in some difficulty. Admittedly the Bill is a very small contribution—it is only a leaf or two out of the voluminous Report of the Royal Commission—but among the categories of marital misfortune there are none more worthy of compassion than those involving insanity. Mercifully, the numbers affected are few, and the Measure therefore affects only a few people. But such as they are, the burdens for them are very great, and even the smallest injustice can greatly add to them. Even this very narrow Measure lifts one or two of those burdens, and I hope that on that account the Bill will be thought worth while, and that the House will agree to give it a Third Reading.

Sir Lionel Heald (Chertsey)

I beg to second the Motion.

11.55 a.m.

Mr. Weitzman

I welcome the Bill. It is a very good one, and deals with cases of very real hardship. I rise to speak now because I want to raise a point which has struck me in connection with Clause 2, which has caused me some little difficulty. I appreciate the intention behind it, which is a good one, but as it is at present worded the court has to consider whether it can infer that if the respondent had been capable of continuing the necessary intention he would have done so.

That seems to me to give rise to a number of difficult problems. I want to instance one, in the hope that if it is a point of real substance it can be put right in another place. I will take what is by no means in unusual case. A wife may be deserted by her husband, and after a period of years she may begin to live with someone else—the two persons living together as husband and wife. Shortly afterwards the true husband may become insane and the wife presents a petition on the ground of desertion. As I understand the law at the moment, the normal rule is that the deserted spouse who subsequently commits adultery is put to the burden of proving that the adultery she has committed has not affected the mind of the deserting spouse. If the petitioner cannot show that, it may well be held that the desertion has been terminated by the adultery, and her petition will fail.

How is the court to deal with a situation arising in that way? If the husband is insane and has not the mind to form any continuing intention, it is quite impossible to say that he can bring his mind in any way to bear upon the question of his wife's adultery. In those circumstances it seems to me that the wife's petition would fail as Clause 2 is at present worded, and that might well be a very real hardship.

I recognise that the intention behind the Clause is very good; it seeks to remove the difficulty which now arises and to provide that because a spouse is insane and unable to form an intention the period of insanity is disregarded and the court decides upon the basis that the desertion continues. I have given an example to show that the difficulty may well continue. Therefore, while I welcome the Bill and the intention of Clause 2, I hope that the matter which I have raised will be considered, in order to see if something can be done to put the matter beyond doubt.

Question put and agreed to.

Bill accordingly read the Third time and passed.