Where under paragraph (d) of subsection (1) of section one of this Act a complaint is made on the ground that the defendant has committed adultery with a third person or under paragraph (b) of subsection (3) of section two or subsection (2) of section eight of this Act it is alleged that the complainant has committed adultery with a third person notice that an allegation of adultery has been made shall be sent by the Court by registered post to the last known address (if any) of the third person, who shall thereupon have the right within fourteen days from receiving such notice to intervene in the proceedings by taking such steps as may be prescribed.—[Sir F. Soskice.]
§ Brought up, and read the First time.
§ 3.38 p.m.
§ Sir Frank Soskice (Newport)
I beg to move, That the Clause be read a Second time.
During the various stages of the Bill so far, hon. Members on both sides attached great importance to the subject matter of this new Clause. Broadly speaking, it is a Clause designed to have the following effect. Should matrimonial proceedings be brought in a court of summary jurisdiction in which the complainant alleges against the defendant that the defendant has committed an act of adultery with a third person, as the Bill is at present drafted and as the law stands at present, there is no machinery to ensure that the third person whose name is thus impugned is informed of the charge which has been made implicating him or her, nor has he or she, as the case may be, under the existing law any right to intervene in the proceedings in any way. The substantial result is that a perfectly innocent person may be wrongly impugned—"accused" is hardly the word, since it is not a criminal proceeding against that person—but, nevertheless, find himself or herself completely and utterly without redress.
We who support this proposed new Clause feel that that is a situation which may give rise to considerable injustice 1392 in individual cases. If one pictures a court of summary jurisdiction in a comparatively limited community in which many people are well known to each other, it is optimistic to think that, although the proceedings may not be publicised in the Press, rumours will not get about as a result of the proceedings that a charge has been made against the person impugned.
Everybody knows how quickly rumour moves about in a limited community and the person whose name is involved may suffer very considerable damage. His or her employment may be affected. His or her matrimonial life, which may, up to that time, have been perfectly happy, may also be very greatly damaged. It is submitted that it is a grave injustice and a blot on the existing system that there should be no way in which that person, having been informed of the charge against him, can claim as of right to intervene in the proceedings to deny it.
This argument has been put on a number of occasions, and the Ministers in charge of the Bill have answered it. As an upshot of the discussions which have taken place, I hope that I am not being over-optimistic in thinking that their minds were not wholly closed, but that they have recognised that this is a problem of difficulty and importance. It is obviously important, because it is repugnant, I should have thought, to all our concepts of justice that a person should be liable to be accused of something and given no opportunity to rebut the charge made against him.
It has been said by those who support the present law that this situation may arise in other proceedings. For example, a person's name may be referred to adversely in the course of proceedings for libel or slander. It may also happen in other proceedings before the courts. That may be true, but, nevertheless, it is no reason why one should have an additional source of danger in our law when it would be a matter of small difficulty to remove it.
It has been said that proceedings which should be cheap and expeditious would be complicated if such a provision were introduced. That complication is very much over-stated. There would not be much complication if the person charged, the third person whose name is impugned, had to be informed. 1393 If it is not easy to find him or her it could be done by advertisement. But, broadly speaking, there is little difficulty in serving a notice of summons on people who may be involved in proceedings in courts of summary jurisdiction. There would not be much complication involved by their being given the right to intervene in proceedings.
The hon. and learned Gentleman the Solicitor-General said that this would be a terrible thing. People would be entitled to instruct solicitors and counsel to appear on their behalf. He and I are the last people who should make that suggestion, but, in any case, this is a terror which has been rather over-painted by the Solicitor-General. We are not either so expensive or ferocious as the hon. and learned Gentleman may seem to imply. We sometimes think, in all modesty, that we are of some use in helping judges in our courts to arrive at a right conclusion on the facts. I do not think that it can be said to be a serious objection that solicitors and counsel may be instructed to defend a person whose reputation is brought into jeopardy.
It has been said that this matter has been carefully weighed and that no glaring cases, or at any rate not many, of injustice have come to notice. That may well be, because people, especially those in modest circumstances, sometimes suffer in silence. When people have not a ready means of redress they are apt to think that nothing can be done for them, but, nevertheless, they may have been subjected to grave damage. I would ask the House to picture the matrimonial situation. Picture the husband and wife of one of whom it is said that he or she has committed adultery with a person involved in matrimonial proceedings in the court of summary jurisdiction. The Solicitor-General says that, according to our law, it might well be held that the persons involved in the proceedings might be found by the court to have committed adultery with the individual whose name was impugned but that it did not follow as a matter of law that the person whose name had been impugned had been a party to that adultery and had committed adultery with the parties to the proceedings.
1394 That is a very abstract and artificial concept which would not carry immediate conviction in most homes, where people look at these things with a robust common sense and think that, if A committed adultery with B, then B probably has done so with A. That is a concept the extent of which should not be enlarged if it can be avoided.
Having on more than one occasion put the case and having heard the answers given, and replied that they did not seem to be convincing, and being in a frame of mind in which there is room, I hope, for some confidence that the Ministers in charge of the Bill may see reason at this late stage and change their minds, I should like to leave the matter there. It has been fully discussed. I put this proposal forward as one which will not be difficult to operate and will prevent the risk of injustice. I therefore hope that the Minister will feel that at long last he is able to accept it.
§ Mr. Speaker
No, the hon. Member is not in order. I will call him if and when the House decides to read the proposed new Clause a Second time. The Question at present before us is, "That the Clause be read a Second time".
§ Mr. Leo Abse (Pontypool)
I regret that this is an occasion when I cannot agree with the view put forward by my right hon. and learned Friend the Member for Newport (Sir F. Soskice).I indicated this on Second Reading. I believe that this proposal is remote from the facts of matrimonial proceedings as they are at present conducted. Magistrates' courts and matrimonial courts should, in my view, provide as swift and simple a remedy as possible. There are already considerable tendencies at work by way of local arrangements whereby pleadings are almost coming into existence. Although this may commend itself to some lawyers, I realise the necessity for a woman to be able to get to the courts quickly and to obtain a speedy decision. I regard it as most undesirable that additional work should be involved, as has been suggested by my right hon. and learned Friend.
I am appalled by this suggestion. It may come to having to advertise to make certain that the alleged adulterer has notice of the proceedings. I should 1395 have thought that that was an appalling idea. At the moment, the privacy of the court ensures that the alleged acts are not publicised. Now we have introduced into the argument the extraordinary notion that the name of the alleged adulterer must be publicised in all the local newspapers by way of a public advertisement. The conclusion which my right hon. and learned Friend has reached is inevitable as long as he says that notice shall be given. Before we knew where we were, an affidavit of service inevitably would lead, as apparently my right hon. and learned Friend envisages, to the possibility of public advertisement.
I regret that I do not regard it as desirable that notices should be served which could bring in further solicitors and counsel. The Legal Aid Fund, which will have a heavy burden imposed upon it as a consequence of legal aid Shortly coming into existence in the matrimonial courts, does not need to have this additional amount, which, in my view, is brought in not because there is a real need, but from an approach which is essentially legalistic.
I ask those who support that view where they are going to stop. For example, a wife may claim that there has been constructive desertion when she is able to show that she holds a reasonable belief that her husband has committed adultery. That is to say, in a desertion case before the magistrates she is able to introduce evidence touching upon a reasonable belief that her husband has committed adultery as a cause of action to establish that desertion has taken place. Do the sponsors of the new Clause say that in desertion cases where such a reasonable belief is to be pleaded, notice must be given?
Again, a husband can successfully plead a defence to a desertion charge when the wife has so conducted herself that he can show to the court that she has given him reasonable ground for supposing that she has committed adultery. In those cases, is it intended that notice must be given? Despite the considerable discussion in Committee, I do not think that this matter has been thought out. I am most unimpressed by the fact that if we do not publicise the adultery in this way, gossip will leak out.
1396 I represent a constituency composed of a considerable number of small villages and townships. I assure the sponsors of the Clause that in such places in Wales it will be a case not of the gossip that creeps out of the courts, but of the gossip that will creep in from outside. There is no danger that anybody would be affected, because quietly, within the confines of the court, a matter such as we are discussing is being adjudicated upon. In large cities, where this does not apply, my experience has taught me that in many cases a lamentable individual act of adultery by a husband is unknown to the wife and that the serving of the notice upon him will bring to the attention of the wife the fact that it has occurred. A second family can be disrupted.
I do not say that from speculation. I am well aware that in divorce cases, where it is necessary to serve such notices or proceedings—for example, where adultery has been revived even though it took place many years before, and revived at that stage because of a subsequent matrimonial offence—when petition is served upon the man who may have committed adultery five or ten years before, great harm can be done.
Whatever may be said about the demands of justice, the law works best when it protects family life. There is a peculiarly Victorian odour to this desire to serve a notice of adultery. My view, from experience of matrimonial cases, is that within married life there are many worse acts of cruelty by a husband to a wife, such as continuous parsimony, which could disrupt the family, than one individual act of adultery. I find distasteful the idea that we have got to pursue the adulterer. It belongs almost to another century. For my part, I cannot be a party to the introduction of a Clause which serves no useful purpose and could act as a disrupting influence in family life.
§ Mr. Graham Page
This matter was fully discussed both on Second Reading and in Committee. All I want to do today is to associate myself with the words spoken by the right hon. and learned Member for Newport (Sir F. Soskice), who moved the new Clause, and to express my support for it.
It is not a matter of pursuing the adulterer, as the hon. Member for Pontypool (Mr. Abse) said. An allegation of 1397 adultery may have such lasting social and legal effects that the man or woman so accused should have the opportunity of appearing and defending himself or herself. Evidence was given before the Royal Commission that there have been cases, expressed as many cases, in which injustice and hardship had occurred by reason of the fact that the person alleged to have committed adultery knew nothing of the proceedings until later and then had no chance of putting forward his or her own case in defence.
There would be no serious complication in the proceedings before the magistrates if this form of procedure were introduced. It is merely a matter of giving notice to the person with whom it is alleged that one party has committed adultery and giving that person the opportunity of coming before the court. It is not bringing him before the court on a summons, but giving him an opportunity to make his case in answer to an allegation which has been made against him, not just an allegation of libel or slander, as the right hon. and learned Member for Newport said, but an allegation of adultery, which has its social and legal effects from the results of proceedings before the magistrates, however much in camera those proceedings may be.
There is no doubt that that becomes semi-public. The rumour gets round. Indeed, a case was quoted before the Royal Commission in which the rumour had got round about a professional man who had been accused in court proceedings of adultery and had no opportunity of defending his good name. This procedure could be introduced without any complication, and I therefore support the new Clause.
§ Mr. Ronald Bell (Buckinghamshire, South)
This is obviously a difficult question of balance of advantage. The new Clause is put forward by the right hon. and learned Member for Newport (Sir F. Soskice) as something which would help the person named. There must be the odd case, such as the one to which my hon. Friend the Member for Crosby (Mr. Graham Page) bas just referred, where a person—normally, it would be a woman—would like the opportunity of going before the court and resisting the imputation.
1398 My belief is that, on balance, the people named in the proceedings would suffer detriment from the new Clause. I need not expand that thought very much, because I agree with everything that the hon. Member for Pontypool (Mr. Abse) has said. In nine cases out of ten I believe that the person named in this way in the magistrates' courts—and, normally, it would be a woman, with whom a husband was alleged to have committed adultery—would much prefer that no notice of the matter were ever delivered to her house. She would far prefer that the matter should be heard in camera and as little said about it as possible.
In many cases, the person who is thus alleged to have committed adultery with the husband will actually have committed adultery with him and the new Clause would do far more to disrupt family life in houses outside the one affected by the proceedings than could conceivably be done to protect it. The Clause would be a left-handed gift to the people whom the right hon. and learned Member for Newport wants to benefit. For that simple, practical reason, I shall oppose the new Clause.
§ 4.0 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
This is, obviously, as my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) said, a difficult matter, in which there are arguments to be weighed on both sides. Indeed, the arguments seem to me, if I may say so with respect, to have been well deployed in today's debate, as they were in Committee and on Second Reading.
As my right hon. Friend and I stated in Committee that we would, we came away from the Committee without our minds closed on this matter. I posed before the Committee the difficulties we saw in accepting the sort of procedure which the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice) envisages under his new Clause, but in deference to his views and to those of my hon. Friend the Member for Crosby (Mr. Graham Page) and various other hon. Members we did undertake to review the whole matter from the beginning and anew. I know that the House will accept from me that we did that in a completely open-minded way.
In particular, we did try to see whether we could get some simple procedure 1399 which would obviate some of the complications, which the right hon. and learned Gentleman himself referred to, but we have not been able to do so. In the end, therefore, I find myself in agreement with the view put forward by the hon. Gentleman the Member for Pontypool (Mr. Abse) and my hon. Friend the Member for Buckinghamshire, South, and I shall have to invite the House to reject this new Clause if the right hon. and learned Gentleman concludes he should press the matter.
I said that we looked at the matter from the beginning and anew with open minds. The first thing we found was the point which was referred to by the hon. Gentleman the Member for Pontypool, that, by and large, it is quite true that where allegations of adultery are made in legal proceedings notice is not given to the third person who is implicated; still less is he given power to intervene in the suit, as my hon. Friend the Member for Crosby suggests in an Amendment which he has put down to the new Clause and which, I think inevitably, gives the right to intervene, cross-examine and appeal.
Some of the matters have been mentioned. The hon. Gentleman opposite mentioned the matter of defamation. I think, if I may say so with respect, that my hon. Friend the Member for Crosby dismissed that a bit too lightly. It does raise precisely this point. It arises in this way. There may be, say, an action for defamation under the Slander of Women Act in which it is alleged by the plaintiff that she, the woman, has had her chastity defamed; and, indeed, if there is a plea of justification, then that is how the matter will come into court. It is quite clear that it will be alleged, "You have committed adultery with X." However, X is not given notice; X is not brought into the proceedings.
It is exactly the same in a very different type of case which I mentioned to the Committee, and that is the case of maintenance. There again, it may be sought to terminate an order for maintenance or to reduce an order for maintenance on the ground that the wife has committed adultery; but the adulterer—the male adulterer—is not given notice and is not allowed to intervene.
1400 It could arise, thirdly, under a deed of separation. A very common form of deed of separation and maintenance is that-the maintenance shall be payable so long as the wife remains chaste and unmarried; and it may arise in an action in the common law courts on the deed that the husband will say, "You have committed adultery and, therefore, brought the operative clause of the deed into play," but notice is not given in that case to the third party with whom the wife is alleged to have committed adultery.
The hon. Gentleman mentioned constructive desertion. I need not expatiate upon that because he made the point perfectly clear. That is a fourth example. Wilful neglect to maintain can be litigated not only in the High Court, out in the magistrates' courts. It is a ground for resisting such claim that the wife has committed adultery or, indeed, as the hon. Gentleman said, that the husband had a reasonable belief that she did. Particulars would have to be given, but the third party is not brought in.
I mentioned proceedings in the High Court for wilful neglect. There is also the case in the High Court where the petitioner of either sex who is seeking a divorce and has himself committed adultery has to put in a discretion statement which afterwards is subject to public examination; that is an a fortiori case, and yet the person with whom that party is mentioned as having committed adultery is not given notice and cannot intervene to deny the charge.
Therefore, in the end one finds that the general rule is that there is no such right, but that alone in the particular case where there is a suit for divorce in the High Court has the third party with whom adultery is alleged the right to intervene and deny it—the right to be made a party.
It seems to me that that right is given for the reason that, whereas in all the other cases which I have mentioned, and which the hon. Gentleman mentioned, the spouse who is alleged to have committed adultery can be relied upon if the allegation is untrue to deny it, in the particular case of a suit for divorce in the High Court alone one cannot rely on the spouse to deny adultery, because the spouse may have an interest in terminating the marriage. There is in that 1401 case a danger of collusion. There is little danger of collusion in the magistrates' court.
Take the ordinary case of an allegation against the wife that she has committed adultery, or an allegation against the husband that he has committed adultery and, therefore, maintenance is sought. If he has not committed adultery, he has an incentive to deny it, because his obligation to his wife will depend upon it. Not only is there an incentive to deny it but also, of course, an incentive to call the third person with whom he is alleged to have committed adultery, to support him in his denial. Therefore, it seems to me that for that reason the case of divorce on the ground of adultery in the High Court is distinguished.
One does there get a very complicated procedure whereby the third person is given full notice of the allegations, he can intervene in the suit, he can be made a party, he can be represented; and still more—and this is crucial when one considers the procedural difficulties—there are two separate issues then before the court: has the wife or the husband committed adultery with X, and, secondly, has X committed adultery with the wife or husband? That is necessary, of course, because there may be evidence which is admissible against the spouse but which is not admissible against the third party. That is how, it seems to me, one does not start with the general proposition that notice should be given in all these types of cases.
A second matter that we re-examined was whether domestic harm could possibly result by introducing this procedure, or whether more harm would result from withholding the provisions which the right hon. and learned Gentleman seeks. On the whole, I find myself convinced again by the arguments which my hon. Friend the Member for Buckinghamshire, South and the hon. Gentleman the Member for Pontypool have put forward. At the moment, these proceedings, unlike proceedings in the High Court, are held in private. They do not receive publicity. Of course, one cannot dismiss out of hand the possibility that rumours get out, but there is that fundamental difference that they are not reported, that they are in private.
I myself feel that very great damage might result in the circumstances which 1402 were put by my hon. Friend and by the hon. Gentleman opposite, wherein a registered letter arrives at the household and it is immediately advertised to the wife of the third party, or to the husband of the third party, that there is an allegation of adultery. In trying to measure the social mischief, therefore, at best I would say that there is a very nice balance here. On the whole, on a review of the matter, it seems to me that the contention, in the way it was put by my hon. Friend the Member for Buckinghamshire, South and the hon. Member for Pontypool, is convincing.
We looked again at the question of how much injustice might result, not in the sense of the social injustice to which I have just referred, but in a case where there is a finding of adultery not against the third party but against the wife or the husband and a rumour gets out that it is the third party that is implicated. I saw the learned President of the Divorce Division, Lord Merriman, again, not only to discuss this matter but also to see whether one could find a procedural modus vivendi. He reiterated that he had never known a case of a miscarriage of justice and that he felt that he would have been bound to have heard of it if one had occurred.
It is true that Mr. Powell, in giving evidence before the Morton Commission on Marriage and Divorce, said that there were "some", but "not many", contrary to what my hon. Friend the Member for Crosby said. On the other hand, another learned magistrate, Mr. Davis, told the Commission that in his experience he was not aware of such a case, and although it was possible to think that such a case might occur it seemed to him to be a flight into the realm of imagination and fancy. Mr. Raphael, giving evidence on behalf of the Magistrates' Association, said that in his experience he had never known a case of injustice.
Although, therefore, one cannot dismiss the possibility, and it is definitely a factor to be weighed, it seems to me a minimal factor that operates in trying to weigh the advantage or disadvantage. I took advantage of a visit to the Justices' Clerks' Association, which would have to operate this Clause, to test its views. Those to whom I spoke were of the opinion that the danger of injustice was 1403 not really a practical one and that the procedural difficulties would be most unwelcome in the magistrates' courts.
This brings me to those procedural difficulties. We have ventilated these before and I have already spoken longer than I had intended. At the moment, the finding that the magistrates have to make under Section 45 (2) of the Magistrates' Courts Act, 1952, is thatThe court, after hearing the evidence and the panties, shall make the order for which the complaint is made or dismiss the complaint.The complaint of course, as appears from Clause 1 of the Bill, is the complaint that the spouse who is before the court has committed adultery.
If we allowed a third party to intervene, it seems to me that he might well succeed in showing that there was no evidence against him, but there might still be evidence on which the court was entitled to act as against the spouse who was charged with adultery. It seems to me, therefore, that one is inevitably pushed to the conclusion which the High Court has had to arrive at. In other words, one must have separate findings as against the wife or the husband and the third party.
The right hon. and learned Member for Newport, rightly, in his speech recoiled from such a conclusion. I think that he described it in Committee as an idiotic fiction. That puts it more strongly than I would care to put it. It is merely giving weight to the fact that what may be evidence against one party is not evidence against the other. But I entirely agree with him that it would be most unwelcome in this sphere in the magistrates' courts. It would cast a great burden upon them. It would not be generally understood. It creates extraordinary difficulties when one comes to appeal, and one must give the right to appeal if one gives a right to intervene. Are we to allow the third party to appeal against a finding only against the wife if the husband succeeds?
Weighing all these arguments as best we can, and genuinely approaching this matter with a desire to find a way through the procedural difficulties, it seems to me that the balance of advantage lies in maintaining the simplicity of the present procedure, for the reasons given by the hon. Member for Pontypool. I do not suppose that 1404 the House will wish me to pursue further some of the procedural complications that would ensue, though I would be willing to do so. Although I see that there are arguments on both sides, my right hon. Friend and I have firmly reached the conclusion that the balance of advantage now lies in maintaining the present position.
§ 4.15 p.m.
§ Mr. Eric Fletcher (Islington, East)
I am sure that the whole House is obliged to the Solicitor-General for the painstaking care which he has given, as he promised us in Committee, to a reconsideration of this troublesome question, but I am by no means convinced by the conclusion which he has reached. This is not a matter which divides the House on a party line and I very much hope that the House will express its opinion on it in the Division Lobby, because I believe that it is a matter in which a question of elementary justice is involved.
I appreciate that there are also arguments about social convenience. As the Solicitor-General has said and other hon. Members have pointed out, eventually we shall have to decide this on a balance of the arguments about what is right and proper. First, I am not particularly impressed by that series of arguments which the Solicitor-General put to the House in endeavouring to show that there are other cases coming before the courts in which injustice results. He told us of other forms of action, such as defamation, in which an accused party or a party against whom some allegations are made has no opportunity of defending himself or herself.
There may be such cases in the defamation and slander of women, and so forth, but it seems to me that all these arguments are irrelevant. What we have to consider here basically is the simple question whether or not injustice is done to a person against whom in any court a charge of adultery is made if that person has no opportunity of defending himself or herself.
§ Mr. Ronald Bell
It is not quite right to say that the charge of adultery is made against that person, except inferentially. The charge is made against the other spouse. The hon. Member argues that that necessarily implies that the 1405 other party to the adultery committed adultery. In practice, indeed in law, the effect of a finding of the magistrates' court in respect of the person named would be absolutely nil. It would be of no legal effect against him and he is not legally imperilled in these proceedings.
§ Mr. Fletcher
This really is splitting hairs. I think that my right hon. and learned Friend the Member for Newport and my hon. Friend the Member for Pontypool (Mr. Abse) were at one in saying that, as a matter of public concept, if there is a finding that A has committed adultery with B it is assumed by the public that B has committed adultery with A. Although there may be technical arguments in which the finding is not conclusive against B but only against A, from the social point of view the harm is done if any court makes an award on the basis that A has committed adultery with B. The harm is done to B because the public, naturally, draws its own obvious conclusions from such findings.
Apart from that, I was not impressed by what the hon. and learned Gentleman told us about the distinction between divorce cases in the High Court and cases in a magistrates' court. He seemed to be saying that the reason why a co-respondent or a party named in a divorce court is and always has been given an opportunity of appearing, intervening and putting forward his defence is that in the divorce court there are opportunities for collusion which do not exist in a magistrates' court.
§ The Solicitor-General
I did not give exhaustive reasons. I mentioned that as the main reason, but there is also the fact that the third party, if he is a man, is always liable for costs in the High Court and may be liable for damages, and we shall be bringing that complication in here as well. I mentioned a third reason, which is the fact that High Court proceedings are in public whereas a magistrates' court proceedings are in private.
§ Mr. Fletcher
I do not think that the hon. and learned Gentleman has improved his case. I think that he will find, as a matter of history—bearing in mind that proceedings in the divorce court are descendants of cases formally heard in the ecclesiastical courts—the reason quite obviously is that if a charge 1406 of adultery is made it is and has always been regarded as a very serious charge, and any person against whom that charge is made should have an opportunity of knowing about it and of defending himself. That is obviously, to my mind, as a matter of history, the reason why the practice in the divorce court has always obtained. I think that it is a valid reason.
In one part of the speech of the hon. and learned Gentleman, I thought that he almost said that a charge of adultery does not very much matter and that if somebody who is not a party to the proceedings is involved in such a charge, as long as no one hears about it, it is better not to do anything about it and better perhaps not to take the risk that anyone should hear about it. I do not think that even in this day and age the hon. and learned Gentleman can pursue that argument.
I do not think that he can persuade the House that one can brush aside a charge of adultery against a person as something which does not much matter, and as being something which a person, if he wants to resist it by his own evidence ought not to have an opportunity of appearing in court. I think that if that is what the hon. and learned Gentleman is saying he is saying something contrary to the general expression of public opinion even in this day.
The hon. and learned Gentleman also quoted various authorities. He said that he had had discussions with Lord Merriman, the President of the Divorce Court, and others. I was not impressed with that. If we are to rely upon the weight of evidence of those who have considered this matter in the past, I think we should start by reminding ourselves of what the Royal Commission on Marriage and Divorce said. The Royal Commission considered this matter at great length, with a good deal of evidence, and came to the conclusion with regard to notice of adultery to a third party in a magistrates' court—I quote paragraph 1123:…we recommend that notice of an allegation of adultery should be sent by the court by registered post to the last known address, if any, of the third person; that person would then have the right to appear and defend himself or herself against the charge. We consider that if this simple procedure were adopted, it would, so far as is reasonably practicable, rule out the possibility of an injustice being done.1407 That is what we are aiming at. We are trying to rule out the possibility of injustice being done.
May I, in parenthesis, say this first to the hon. and learned Gentleman and then to my hon. Friend the Member for Pontypool? I think that we could exaggerate the cases in which there is a risk, that by giving notice we bring something to the attention of the alleged adulterous spouse who otherwise would pass into oblivion. May we bear in mind that in a very large number of these cases brought in magistrates' courts where a matrimonial order is sought on the ground of adultery there will be no charge against any named person. There will be an allegation of adultery with a person unknown, which is quite sufficient to entitle the applicant to an order. I think that that is so in the overwhelming number of cases. Whatever the proportion may be, in all these cases where the allegation of adultery is with a person unknown no question of notice and no question of justice or injustice arises.
In the remaining cases where there is an allegation of misconduct with a person named, my impression is that in the preponderant majority of these cases it will not make the slightest difference to the person named whether he or she has an opportunity of defending or not because, in so far as the guilt is admitted and it is capable of proof, the person to whom such notice is given will not desire to defend it, will not want to intervene and will not want to take any steps. Therefore, we are merely dealing with a residual—the limited number of cases in which a false accusation is made about a named person to whom very grave social consequences might result. We are dealing with that very limited number of cases and putting forward this new Clause as a matter of justice so that in those cases there should be no opportunity of injustice occurring.
As to the question of whether injustice has resulted or might have resulted in the past, I do not think that the Solicitor-General gave full effect to the evidence given before the Royal Commission when it made its Report. He referred to a conversation which he had had with Lord Merriman; but what I think is much more important is to read to the House the evidence which Lord Merriman gave to the Royal Commis- 1408 sion, because what he said then is on record. I am, of course, not doubting what he said to the hon. and learned Gentleman.
§ The Solicitor-General
I would not have mentioned what Lord Merriman said to me unless he had already said it in another place.
§ 4.30 p.m.
§ Mr. Fletcher
All that I want to do is to remind the House of what Lord Merriman said when he was giving considered evidence to the Royal Commission, to which I attach some weight. As reported in the Minutes of Evidence Book 14–15, page 420, and in answer to Question 3,436 by Mr. Justice Pearce, a member of the Commission, Lord Merriman, said:At any rate, he ought to be given notice in some form or another, I think this is clear. At one time all that happened was that the husband took out a summons to discharge a magistrates' order on the ground that since the making thereof the wife had committed adultery, no more. She might go to court not knowing the details of what she had been charged with. The Divisional Court put that right by insisting that proper particulars of the charge must be given. By the same reasoning, the alleged adulterer would be informed of what he or she has been charged with.In addition, there has been some dispute about what Mr. Davis, the police court magistrate to whom the hon. Member for Crosby (Mr. Graham Page) referred, said. In view of the fact that the Solicitor-General seemed to challenge what the hon. Member for Crosby said, I think, again, that we ought to have on record the answer as contained in the Minutes of Evidence before the Royal Commission. In answer Question 2,723, Mr. Davis said:In the first place, I have in my experience known many instances where proceedings had been taken in a magistrates' court based purely on adultery. It may be that desertion could have been added but in fact in many cases adultery alone had been relied upon. I see no difficulty in practice in rules being provided…whereby a third party should be notified of the proceedings and given an opportunity of appearing and taking part. It is a matter of interest because the procedure for bringing in a third party is not unknown in magistrates' courts in other spheres.I shall not read it, but then he gave a specific instance where a grave injustice and serious social consquences had arisen because a quite untrue allegation had been made which was bitterly resented 1409 by the lady who subsequently heard it and then she found that she had no opportunity whatever of protesting or defending her honour, despite the very serious damage she had suffered in the eyes and opinion of her neighbours as a result.
The only other judicial, or semi-judicial body which considered the matter was the Arthian Davies Committee. That Committee on which, incidentally, this Bill is based, was almost evenly divided in its opinion. The majority, six as against five, was against any change in the existing procedure, but the minority, consisting of the chairman, Mr. Mac-Dermot, and others, said that:Whilst recognising the force of the objections in justice to persons against whom such allegations are made these rights should be given whatever the practical difficulties.That brings us to the practical difficulties about which the Solicitor-General had something to say. I thought he exaggerated the difficulties. As is recognised, we are not dealing with anything like the majority, or a large proportion, of the cases which have come before the magistrates' courts. We are dealing with a very small number of cases in which a false accusation is made, a false accusation of adultery against someone who would be seriously injured and prejudiced if he or she had no opportunity of defending his or her honour.
Surely, in those cases there ought to be an opportunity for intervening and appearing. The mere fact that there were such an opportunity would, in my view, ensure that in future there could be no possible cause for complaint. If in those few cases a person wished to challenge the validity of an accusation,
§ all that would be required on the receipt of notice would be the right to intervene on the lines suggested by the Amendment in the name of the hon. Member for Crosby.
§ I am entirely in favour, as is my right hon. and learned Friend the Member for Newport and my right hon. Friend the Member for Warrington (Dr. Summers-kill), of ensuring that these proceedings for matrimonial relief in the magistrates' courts should be as simple, as speedy and as expeditious as possible. I would not be supporting this new Clause if I thought it were calculated in any way to complicate the ordinary run of cases which come before magistrates'courts. I am sure that it is not. We are dealing here with the exceptional cases. In the exceptional case all that is required is that the person to whom this notice should be given should have the opportunity of sending a notice to the court. The court would then be aware that it is not a simple routine matter, but an exceptional and unusual matter requiring special consideration.
§ Therefore, my own view is that the requirements of justice are in favour of this new Clause being accepted. I do not think that there would be any social inconvenience of the kind that the hon. and learned Gentleman has suggested. I hope that the House, having listened to the arguments and knowing that there is a balance of argument which does not necessarily divide the House on party lines, will support the new Clause.
§ Question put, That the Clause be read a Second time:—
§ The House divided: Ayes 134, Noes 195.1411
|Hughes, Emrys (S. Ayrshire)||Oliver, C. H.||Stewart, Michael (Fulham)|
|Hughes, Hector (Aberdeen, N.)||Oram, A. E.||Strachey, Rt. Hon. John|
|Hunter, A. E.||Oswald, Thomas||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|Jeger, George||Owen, Will||Summerskill, Dr. Rt. Hon. Edith|
|Johnson, Carol (Lewisham, S.)||Page, Graham||Swingler, Stephen|
|Jones, Rt. Hn. A. Creech(Wakefield)||Paget, R. T.||Symonds, J B.|
|Jones, Dan (Burnley)||Pannell, Charles (Leeds, W.)||Taylor, Bernard (Mansfield)|
|Jones, J. Idwal (Wrexham)||Parker, John (Dagenham)||Taylor, John (West Lothian)|
|Kelley, Richard||Peart, Frederick||Thomas, George (Cardiff, W.)|
|Key, Rt. Hon. C. W.||Pentland, Norman||Thornton, Ernest|
|King, Dr. Horace||Plummer, Sir Leslie||Wainwright, Edwin|
|Lee, Frederick (Newton)||Probert, Arthur||Warbey, William|
|Lipton, Marcus||Proctor, W. T.||Wells, Percy (Faversham)|
|Loughlin, Charles||Rankin, John||Wheeldon, W. E.|
|Mabon, Dr. J. Dickson||Redhead, E. C.||White, Mrs. Eirene|
|McCann, John||Robinson, Kenneth (St. Pancras, N.)||Whitlock, William|
|MacColl, James||Ross, William||Wilkins, W. A.|
|McInnes, James||Royle, Charles (Salford, West)||Williams, W. R. (Openshaw)|
|McKay, John (Wallsend)||Shinwell, Rt. Hon. E.||Willis, E. G. (Edinburgh, E.)|
|Mackie, John||Short, Edward||Wilson, Rt. Hon. Harold (Huyton)|
|Mahon, Simon||Silverman, Julius (Aston)||Woof, Robert|
|Manuel, A. C.||Skeffington, Arthur||Yates, Victor (Ladywood)|
|Mendelson, J. J.||Slater Mrs. Harriet (Stoke, N.)||Zilliacus, K.|
|Millan, Bruce||Slater, Joseph (Sedgefield)|
|Mitchison, G. R.||Soskice, Rt. Hon. Sir Frank||TELLERS FOR THE AYES:|
|Moody, A. S.||Spriggs, Leslie||Mr. Lawson and Mr. Rogers|
|Mort, D. L.||Steele, Thomas|
|Abse, Leo||Fraser, Ian (Plymouth, Sutton)||Manningham-Buller, Rt. Hn. Sir R.|
|Agnew, Sir Peter||Freeth, Denzil||Markham, Major Sir Frank|
|Aitken, W. T.||Gammans, Lady||Marlowe, Anthony|
|Allason, James||Gibson-Watt, David||Marten, Neil|
|Alport, Rt. Hon. C. J. M.||Goodhew, Victor||Mathew, Robert (Honiton)|
|Arbuthnot, John||Gower, Raymond||Matthews, Gordon (Meriden)|
|Barter, John||Green, Alan||Mawby, Ray|
|Batsford, Brian||Gresham Cooke, R.||Maydon, Lt.-Cmdr. S. L. C.|
|Baxter, Sir Beverley (Southgate)||Grimond, J.||Mills, Stratton|
|Beamish, Col. Tufton||Grimston, Sir Robert||Montgomery, Fergus|
|Bell, Ronald (S. Bucks.)||Hall, John (Wycombe)||Moore, Sir Thomas|
|Bennett, F. M. (Torquay)||Hamilton, Michael (Wellingborough)||Morgan, William|
|Berkeley, Humphry||Harrison, Col. J. H. (Eye)||Nicholson, Sir Geoffrey|
|Biggs-Davison, John||Harvie Anderson, Miss||Noble, Michael|
|Bingham, R. M.||Hendry, Forbes||Nugent, Sir Richard|
|Black, Sir Cyril||Hill, Mrs. Eveline (Wythenshawe)||Orr-Ewing, C. Ian|
|Bossom, Clive||Hinchingbrooke, Viscount||Page, John (Harrow, West)|
|Bourne-Arton, A.||Hirst, Geoffrey||Pannell, Norman (Kirkdale)|
|Box, Donald||Hooking, Philip N.||Peel, John|
|Boyle, Sir Edward||Holland, Philip||Percival, Ian|
|Brewis, John||Holt, Arthur||Peyton, John|
|Brooman-White, R.||Hopkins, Alan||Pickthorn, Sir Kenneth|
|Browne, Percy (Torrington)||Hornby, R. P.||Pike, Miss Mervyn|
|Butcher, Sir Herbert||Hornsby-Smith, Rt. Hon. Patricia||Pilkington, Capt. Richard|
|Butler, Rt. Hn. R. A.(Saffron Walden)||Howard, Hon. G. R. (St. Ives)||Pitman, I. J.|
|Campbell, Gordon (Moray & Nairn)||Hughes-Young, Michael||Pitt, Miss Edith|
|Carr, Compton (Barons Court)||Hutchison, Michael Clark||Pott, Percivall|
|Carr, Robert (Mitcham)||Iremonger, T. L.||Powell, J. Enoch|
|Cary, Sir Robert||James, David||Price, David (Eastleigh)|
|Channon, H. P. G.||Jenkins, Robert (Dulwich)||Prior, J. M. L.|
|Clark, William (Nottingham, S.)||Jennings, J. C.||Proudfoot, Wilfred|
|Cooke, Robert||Johnson, Dr. Donald (Carlisle)||Ramsden, James|
|Cooper, A. E.||Johnson, Eric (Blackley)||Redmayne, Rt. Hon. Martin|
|Cooper-Key, Sir Neill||Johnson Smith, Geoffrey||Rees, Hugh|
|Cordeaux, Lt.-Col. J. K.||Kaberry, Sir Donald||Renton, David|
|Corfield, F. V.||Kerans, Cdr. J. S.||Robertson, Sir David|
|Costain, A. P.||Kerby, Capt. Henry||Robinson, Sir Roland (Blackpool, S.)|
|Coulson, J. M.||Kershaw, Anthony||Robson Brown, Sir William|
|Craddock, Sir Beresford||Lagden, Godfrey||Roots, William|
|Critchley, Julian||Leavey, J, A.||Ropner, Col. Sir Leonard|
|Crosthwaite-Eyre, Col. O. E.||Legge-Bourke, Sir Harry||Russell, Ronald|
|Cunningham, Knox||Lewis, Kenneth (Rutland)||Scott-Hopkins, James|
|Dalkeith, Earl of||Lilley, F. J. P.||Sharples, Richard|
|Dance, James||Litchfield, Capt. John||Shaw, M.|
|d'Avigdor-Goldsmid, Sir Henry||Longden, Gilbert||Simon, Sir Jocelyn|
|Drayson, G. B.||Loveys, Walter H.||Smith, Dudley (Br'ntf'rd & Chiswick)|
|Duncan, Sir James||Lucas, Sir Jocelyn (Portsmouth, S.)||Smithers, Peter|
|Eden, John||MacArthur, Ian||Spearman, Sir Alexander|
|Elliott, R. W.||McLaren, Martin||Steward, Harold (Stockport, S.)|
|Emmet, Hon. Mrs. Evelyn||McLaughlin, Mrs. Patricia||Stodart, J. A.|
|Erroll, Rt. Hon. F. J.||McLean, Neil (Inverness)||Storey, Sir Samuel|
|Finlay, Graeme||McMaster, Stanley R.||Studholme, Sir Henry|
|Fisher, Nigel||Macpherson, Niall (Dumfries)||Summers, Sir Spencer (Aylesbury)|
|Fletcher-Cooke, Charles||Maddan, Martin||Sumner, Donald (Orpington)|
|Fraser, Hn. Hugh (Stafford & Stone)||Maitland, Cdr. Sir John||Tapsell, Peter|