HC Deb 21 July 1964 vol 699 cc427-37
Mr. Bruce Millan (Glasgow, Craigton)

I beg to move, in page 2, line 26, after "insanity" to insert unless the insanity lasted for a period not exceeding six months.

Mr. Speaker

It might be convenient for the House to discuss at the same time the next two Amendments.

Mr. Millan

With respect, Mr. Speaker, they deal with an entirely different question from the one in this Amendment.

Mr. Speaker

So be it. We will deal at the moment only with the Amendment in line 26.

Mr. Millan

The Clause deals with defences in cases of an action for divorce on grounds of cruelty. I understand that it is a legitimate defence to such an action that the defender was insane at the time of the cruelty complained of. I think that the principle is that if the defender were insane it cannot be proved that he had intended to commit injury on the pursuer and therefore it would be wrong to grant the divorce. This can give rise to very distressing circumstances in which an individual may have been guilty of quite appalling cruelty towards his spouse and yet no action for divorce on the grounds of cruelty would be successful.

I agree with the general intent of the subsection to remove this defence of insanity as it obtains in actions of this kind. However, I am not completely satisfied with the Clause as drafted, for I wonder whether it might be too sweep- ing because it states that it would no longer be a defence that the defender (a) was at the material time suffering from insanity…". What exactly is meant by "at the material time"? Is it at the time the cruelty was committed?

10.45 p.m.

It might happen that the defender was temporarily insane when he was guilty of cruelty to his wife, to take the more common case of the wife bringing an action against her husband. But the same husband could well be cured and be perfectly sane at the time the action came forward. It is at this point that it appears that the change proposed in the law by the hon. Member for Aberdeenshire, West (Mr. Hendry) is not as completely acceptable as in other circumstances it might be.

If the hon. Gentleman were suggesting that we change the law if both at the material time—when the cruelty was committed—the defender was insane and there was some continuing insanity, I would accept his proposal, but to leave it simply as it stands could, in certain circumstances, give rise to injustice to the defender. This is very much a question of balance. The purpose of my Amendment is to insert the words: unless the insanity lasted for a period not exceeding six months ". In other words, if the Amendment were accepted it would be possible for a defender to have a period of six months when he would be permitted to be insane, as it were, and cruel to his wife, and provided he recovered thereafter no grounds for an action for divorce would be possible.

I cannot claim that this kind of Amendment to the law would work fairly in every circumstance, but neither do I believe that the Clause as drafted would work fairly in every case. It is, I suppose, possible that the defender could be insane for a very short period indeed, perhaps for a few weeks. I am not qualified to discuss the medical aspects of this and I hope that my hon. Friend the Member for Greenock (Dr. Dickson Mabon) will give us the benefit of his advice. Nor am I happy about the expression "insane", and while I would have liked to have used a word with a clearer definition, I have used this one because the hon. Member for Aberdeenshire, West has used it in the Bill.

It seems that the Clause as drafted would enable a pursuer to be successful in sueing for divorce in a case where the defender might have been insane for only a very short period and might, before the time of the action and at that time, be completely cured and no longer be acting in a cruel way towards his pursuer wife. As I say, the period of cruelty might have been short, and it is for this reason that I suggest this Amendment to the absolute terms which the hon. Member for Aberdeenshire, West is proposing.

I am in favour of the change in the law the hon. Member is suggesting, particularly since it is intolerable to think that, insanse or not, a husband could be cruel to his wife and there might be no remedy whatever available to the wife. I support his attempt to improve the situation, but I wonder whether he has not gone too far so that, in certain circumstances, injustice might occur. I hope, therefore, that he will look sympathetically at the Amendment, which would appear to represent a modest safeguard for the defender and one which we could add to the Bill without committing any injustice to the wife or, for that matter, the husband who might at some time have been badly treated.

Mr. Hendry

The question whether insanity should be advanced in the case of an action for divorce on the ground of cruelty is one which has troubled the courts for many years, and indeed it troubled the Royal Commission which considered the point. The difficulty is that cruelty as ground for divorce is regarded as analogous to a criminal offence and in the case of a criminal offence in Scotland insanity is a good defence. On that analogy the courts in Scotland have hitherto regarded insanity as a good defence to a charge of cruelty where it is made a ground for divorce.

As the hon. Member for Glasgow, Craigton (Mr. Millan) has said, this has given rise in many instances to considerable hardship.

The other cause of difficulty is that the courts always feel that there may be injustice to the victim because the victim may continue to suffer the most unspeakable cruelty. The Royal Com- mission was greatly worried about this and it thought that on balance the welfare of the victim of the cruelty was preferable to the welfare of the insane person who was inflicting the cruelty, and the Royal Commission recommended along the lines of the Clause.

But, having said that, I have to consider how relevant the proposed Amendment is to the situation. It is true that an outbreak of insanity causing cruelty may be of short duration, but the cruelty is no less real for that and a matrimonial offence may have resulted from that comparatively short-lived insanity. Cruelty for the purpose of divorce must inflict an injury on the health of the victim, or at any rate must threaten it seriously. In the case which we are considering the health of the victim has either suffered or been seriously threatened and therefore, irrespective of the duration of the insanity, the cruelty has been inflicted and is ground for divorce. On balance I cannot recommend the House to accept the Amendment.

Dr. Dickson Mabon

By a strange coincidence there appeared in the Scottish Press reports of divorce cases on the very day after one of our debates and I took a bleary-eyed look at the newspapers after surviving a long night watch in the Scottish Standing Committee. I had always been in sympathy with the arguments which the Royal Commission has advanced and which the hon. Member for Aberdeenshire, West (Mr. Hendry) has incorporated in his Bill, but having heard discussions on the Bill and having looked at these things and considered how they would be affected by a change in the law, I have felt uneasy. I am glad that my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) has moved the Amendment. It is right that we should ventilate the point.

It is conceivable that a wife seeking a divorce might have been responsible for driving her husband to such distraction that he suffered a mental breakdown. Whether or not he is suffering from insanity in medical terms is a matter for argument. If it is insanity within the definition which the Under-Secretary read out, it seems to me that the poor wretch suffers a rather helpless state of affairs. If this is the definition in law it strengthens my hon. Friend's argument. If we go the whole hog as suggested by the hon. Member for Aberdeenshire, West we know that we are creating a margin of abuse.

I wonder whether we in Scotland ought not to look more closely at this and allow such an Amendment as this for a period of six months. At this stage, of course, we cannot change our minds and suggest such an Amendment for three or nine months; we must settle for six months. But the margin of cases might well be in favour of my hon. Friend's Amendment, and there might be less abuse of this procedure if we were to accept it.

I have in mind much of the evidence which exists in many of our departments of psychological medicine and among psychiatrists about the duration of mental illness. We all pay due regard to and salute the progress that has been made in medicine, but many of us, including doctors, do not appreciate what advances have been made. Many rapid strides have been made in psychological medicine and treatment nowadays. The deficiency of various amino-acids and other materials which we had thought played no part in body physiology has been suggested as the cause of many acute episodes of mental illness. In an acute episode of mental illness it is conceivable that a husband or wife may cause immense cruelty to one another, and it would be unfortunate if such an episode, which my hon. Friend defines as not exceeding six months, were to impose a penalty on the unfortunate person suffering the disease and at the same time bring the marriage to an end.

This matter is worthy of consideration and, with respect to the sponsor, who is adhering loyally to the Royal Commission, which I tried to do—although he did not do so earlier on—I suggest that it is reasonable that he should think again. Perhaps the noble Lady could help him to do so.

Lady Tweedsmuir

It might be of some assistance if I were to try to clarify the difference between the meaning of insanity as a defence to divorce for cruelty, and incurable insanity as a ground for divorce.

Certainly in my own mind there was some confusion, and some hon. Members may share that confusion. The two are quite separate, and the word "insanity" has a different judicial interpretation in each case. In the case of insanity as a defence, the word is used in its normal meaning of mental illness of whatever degree of severity or otherwise, although for the defence to be successful the defender must prove that its effect was to remove his responsibility for his actions, and this could not normally be proved unless the insanity was quite severe.

On the new Clause which we have already discusssed I defined incurable insanity, which is such as to render a person incapable of looking after his affairs in the normal way or of leading a normal married life. Of course, all this would be possible only if he spent five years continuously in hospital under treatment.

The hon. Member for Glasgow, Craigton (Mr. Millan) rightly said that he felt that there may be occasions when a particular act of cruelty might have been the result of some sudden outburst, where the person at the time was possibly not responsible for his actions; but he thought that if one added the period of six months that might give time for reflection and calming down, and the person would perhaps have recovered sufficiently for normal married life to be resumed. But one has to remember that although the outburst may have been only of a temporary character, the act of cruelty was committed, and, in terms of legal cruelty, it must have endangered the health of the person against whom the act was committed. Both hon. Gentlemen opposite have not opposed the Clause as a whole. They accept the recommendation of the Royal Commission, which, in paragraph 256 of its Report, pointed to the various difficulties and expressed the opinion: In our view, preference should be given to the interests of the injured spouse". The Clause is drafted to carry out the Royal Commission's recommendation, that insanity should not be a good defence to a charge of cruelty in matrimonial proceedings.

If the hon. Members for Craigton and for Greenock (Dr. Dickson Mabon) accept the principle of the Clause, what we have to decide is whether it would be improved by the Amendment to incorporate the six months' limitation. I must tell the House that, from the point of view of carrying out the purpose of the Royal Commission's recommendation, the length of the period is not relevant. What is relevant is that the victim, whichever spouse it is, has suffered cruelty to such an extent that he or she is justified in having the remedy of divorce. For this reason, I suggest to the House that the length of the period does not alter the substance of the recommendation of the Royal Commission, and I think that the Clause would be best left as it is.

11.0 p.m.

While we are discussing this Clause, I should like to take the opportunity to set the record straight. In Committee, in answer to the right hon. Member for East Stirlingshire (Mr. Woodburn), I said something which was not totally correct. The right hon. Gentleman had asked what consultation had taken place with the legal profession about the Bill. I replied: The Lord Advocate showed the Bill to the Lord President, who consulted the judges of the Court of Session. They did not suggest that there should be any amendment made".—[OFFICIAL REPORT, Scottish Standing Committee, 7th July, 1964; c. 117.] This was the information which I had received, but it was only in part correct. While the Lord Advocate showed the Bill to the Lord President, he did not consult the judges of the Court of Session. The Lord President himself did not suggest that any amendment should be made. I have explained this by letter to the right hon. Gentleman, but I wished to set the record straight as I had no wish—I did so only unwittingly—to mislead either him or the Committee at the time.

Mr. Ross

This is a Clause which gave us a certain amount of trouble in Committee. We had a discussion lasting about one and a half hours, starting at about 9.45 and finishing just after 11 o'clock. Unfortunately, shortly before that, I nipped out for a cup of tea, and, when I came back, such had been the progress on the Bill, I found that hon. Members had changed the rules in relation to the definition of cruelty in Scots law. We must bear that in mind in respect of this Clause.

The hon. Member for Aberdeenshire, West (Mr. Hendry) will remember that I was very concerned about this matter. On the Question, "That the Clause stand part of the Bill," we raised it as a specific issue, and, after considerable debate, the hon. Gentleman was persuaded that there was something in what we suggested. He will remember that he said: The hon. Gentleman knows that I always endeavour to be courteous to him "— He lost his temper two or three times that night, but, by the time we rose, it was after 2 o'clock in the morning, so we can understand that. He went on to say: I am also impressed by the argument about the advance of medical science and I undertake to consider the whole matter afresh by Report and to take medical advice upon it ".—[OFFICIAL REPORT, Scottish Standing Committee, 7th July, 1964; c. 233–4.] I do not know whether he has taken medical advice. As far as I can see, he has been taking legal advice on it. It seems to me that, despite our having made certain changes, many of them beneficial, we have not taken sufficient care to keep the balance right.

The assumption in some of the arguments of the hon. Lady was that the pursuer is always right. There is a defence. The hon. Lady may well be looking at the matter from the view of a "poor, frail woman". Some women are not always quite so frail. It is at present a defence to cruelty—and cruelty must be malicious, aimed, deliberate and knowingly cruel—to say that at the material time the person was insane in the proper meaning of the word that the person was out of his mind—in other words, that he did not know what he was doing and, therefore, could not be cruel within the interpretation of cruelty.

Is it a reasonable defence that at a particular time—it may be one instance, something that lasted only an hour or lasted a week—a person was insane? Thereafter, he might be cured. That was the point we made. It was the vagueness about the material time and the admission that within this context insanity meant curable insanity. The person concerned might never have another such outbreak. Should we accept it in that case to deprive that person, who wants to maintain the marriage, of the defence that at the material time he was not incurably insane, but insane? We still leave it to the court to decide. It is only a defence. We are not still denying the right of the pursuer to prove the case.

We have heard from the hon. Lady about how good, just, all-seeing and all-wise the Scottish courts are in other matters of procedure. Then why make this change? Why disturb the balance, which is what it comes to, and at a time when, more than ever, we are recognising how foolish we have been in the past in our attitudes to mental illness. The mind is part of the body and as the body gets into states of disrepair, there may well be occasions when the mind does, too.

The arguments put by my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) are eminently sensible. I commend him for putting down the Amendment. I had certain preoccupations between spray irrigation and a few other items that we have been discussing. English Members will appreciate that we started this morning at half-past ten in the Scottish Grand Committee and, as somebody says, we are no' finished yet. My hon. Friend put down the Amendment. That showed his concern. We showed our concern in Committee. I had been hoping that it would not be necessary to put down an Amendment and that the hon. Member for Aberdeenshire, West would put down a much more sweeping Amendment to take out the whole subsection.

If the hon. Member wants, on reflection, to do that, I am sure that, even at this stage, he could put forward a manuscript Amendment. We had manuscript Amendments flowing all over the Committee Room during that night in Committee. I must admit that the weakness in my hon. Friend's Amendment is the one which he himself admitted about whether six months is right. The hon. Member could, by such an Amendment, at least restore a certain balance. I am not entirely happy about it, but it would be better than nothing and better than completely depriving a defendant of a defence which hitherto has been available. I do not think that it has caused hardship.

I am sure that there have not been hundreds of letters flowing to the hon. Lady. There certainly have not been to me. I had a letter, not from the Lord Advocate, but written on the typewriter and by the typist he shares with the hon. Member for Aberdeenshire, West. I had a letter from the hon. Gentleman about this. Frankly, I did not understand it. For a minute I was unfair to him. I thought he had written it himself. But I have come to the conclusion that it was the Lord Advocate's typist who must have written it. It did not convince me.

Perhaps the hon. Gentleman could recapture the mood of generosity that he had at 11 o'clock that night, reconsider the Amendment and accept it, because it saves part of the situation. If he has been further convinced, perhaps he will ask my hon. Friend to withdraw his Amendment and say that he himself will put forward a manuscript Amendment—I am sure that in the generous mood in which the House is, Mr. Deputy-Speaker would accept it—in order to restore the balance. What the hon. Gentleman is at present doing is wrong and unfair, and I am very sorry that he himself has not, on reconsideration, seen fit to table an Amendment.

Mr. Hendry

If I may speak again by leave of the House, the hon. Member for Glasgow, Craigton (Mr. Millan) has made what would be a most excellent speech on the Question "That the Clause stand part of the Bill" in Committee, but he seems to have misunderstood the whole point of the Amendment. As I said earlier, we must weigh up here the advantage to an insane defender or the advantage to an innocent victim. The Royal Commission decided that the balance of advantage should be with the innocent victim. If we accept, as the hon. Gentleman seems to accept, the view expressed by the Royal Commission—

Mr. Millan

I did not mention the Royal Commission.

Mr. Hendry

—that we ought to look to the innocent victim, then we must be logical about it, and it does not seem to be logical to put a time limit on the period of insanity. Whether the insanity is permanent or temporary seems beside the point. I am afraid that I am still unconvinced and must resist the Amendment.

Mr. Millan

I am very disappointed at the attitude of the noble Lady the Under-Secretary and the hon. Member for Aberdeenshire, West (Mr. Hendry). When I originally moved the Amendment, I never pretended that it was the perfect solution to the dilemma. There are a number of different ways in which this could be done. All I am concerned about is that a certain protection should be given to the insane defender or a defender who was insane at one time and has subsequently become sane at the time of the action or perhaps well before that time. It should not be beyond the wit of the draftsmen to produce a safeguard. It could be done by means of stating a period or in a number of ways. It is unfortunate that we are discussing the matter in this context when it is extremely difficult to produce, at this late stage, different suggestions about how a particular end can be brought about.

I am not against the general principle of the subsection. Frankly, I am not terribly concerned with what the Royal Commission said on this. Before I tabled the Amendment I had not read what the Royal Commission had said on this, and so I started with no preconceived ideas on how we should go about it. I feel that we have now got it slightly wrong in the opposite direction to what it was, and I am sure that this was not necessary. I do not suppose that there is anything that we can do about it now, but I do not feel disposed to withdraw the Amendment.

Amendment negatived.