HC Deb 25 April 1969 vol 782 cc861-98

Where the court is satisfied that the petitioner has attempted to deceive the court, it shall dismiss the petition, or if a decree nisi has already been made, it shall rescind the said decree nisi and dismiss the petition, if the court is of the opinion that the deception was of such a serious nature that it would be wrong to grant the decree.—[Sir L. Heald.]

Brought up, and read the First time.

Sir L. Heald

I beg to move, That the Clause be read a Second time.

This is a very important Clause. It has a remarkable history which I must explain for the benefit of hon. Members who were not concerned with the Committee stages of the last Bill or this Bill.

The Clause, apart from one addition to it, was in the original Bill. We were told that it was inserted as a result of what the Law Commission said. In Committee on the last Bill there was an extraordinary day, as it was described by the hon. Member for Coventry, South (Mr. William Wilson), who was the sponsor of the Bill. The Clause was thrown out by five votes to four, although, apparently, it had been regarded by the Law Commission as essential. When the present Bill was introduced there was no such Clause in it. I therefore tabled this new Clause. I hoped that reason would prevail and that it would be said that there was unfortunate confusion on the last occasion and that it would be accepted.

The hon. Member for Coventry, South, who I am glad to see in his place—he and I have been on opposite sides in this matter for some time—said that it was a day of such confusion that anything could have taken place.

The Clause does not require a great deal of explanation, but it deserves having this said about it. It has been argued that there is a danger that if this Bill comes into operation the courts will have little to do with this matter. The hon. Member for Yarmouth (Dr. Gray) did not think that the courts should have anything to do with it at all. In fact they do.

The important feature of the new Clause is that it draws the attention of all concerned to the fact that divorce is a very serious matter which will con tinue to be dealt with on a judicial basis and that there must be safeguards against the possibility of the court being deceived. We originally put down a new Clause as follows: Where the court is satisfied that the petitioner has attempted to deceive the court, it shall dismiss the petition, if the court is of the opinion that the deception was of such a serious nature that it would be wrong to grant the decree. 2.0 p.m.

It was said that this was so unlikely to happen and so rare that it would be sufficient to leave it to the law of perjury and contempt of court. That was not the view of the Law Commission and was not, in my belief, the view of the judges. It was highly desirable that it should be made clear that the judges have an overriding power and discretion to dismiss a petition if it appeared at any stage that there had been attempt to deceive the court.

When the matter was being discussed in Committee, one hon. Member said "The trouble which is most likely to arise is that it will not be discovered that this attempt is being made until after the decree nisi has been reduced." The nice, technical objection was raised to the new Clause that we were not dealing with that matter because we were dealing with the question of dismissing the petition.

My hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) pointed out that as a matter of law it was covered by the words "dismissing the petition". But at the same time the sponsors, anxious to avoid any defilement of their precious Bill, said that they must take the technical point and, as the Amendment did not cover what it was supposed to cover, they would refuse it.

We have now put down the new Clause with the additional words. I apologise for the legal verbiage, but this is the fault of the sponsors rather than any fault of mine. It is done in this way in order to meet the pettifogging objection which was raised to the new Clause in Committee. The House will now see that it reads: Where the court is satisfied that the petitioner has attempted to deceive the court, it shall dismiss the petition, or if a decree has already been made, it shall rescind the said decree and dismis the petition … That wording is in effect taken from another Act, so that it is perfectly proper wording to use. I understand that my hon. and learned Friend the Member for Oldham, West is satisfied that it is the correct procedure.

Therefore, we can now come to the merits of the matter. During the proceedings last year the Solicitor-General advised the Committee, though not with any great enthusiasm, to keep in the Clause which the Law Commission thought ought to be there. But no notice was taken of what he said.

Mr. Peter Mahon

For the benefit of the unitiated, will the right hon. and learned Gentleman kindly give hon. Members like myself an interpretation of the words a mensa et toro?

Sir L. Heald

It is from the "table and hearth", the other man's table. As mensa was the first Latin word we learnt, I can only assume that the hon. Gentleman was not perhaps fortunate in that respect.

This is a serious matter and although I have no authority to speak on behalf of Her Majesty's judges, nor would I presume to do so, I suggest that those who are engaged in the practice of the divorce law in the law courts feel strongly that it is highly desirable, even if these matters are likely to occur only occasionally, that it should be made clear to everybody that this is a most grave matter since it involves a question of deception of the court.

Now that we have cleared away the technical point, we are in the situation that there has been no effective argument against this Clause of any kind, except the argument that it is not really necessary. If it was a valid objection to Government legislation that it was not really necessary, then we would have very many less Acts of Parliament than we have today.

I sincerely hope that on this occasion, following the slight improvement in the sponsors' whole attitude towards amendment of the Bill, as was shown in the new Clause with which we have just dealt, this matter will be dealt with on a serious level. I am not able to speak with knowledge of the practice, but I know that there are those present with knowledge of it who will agree that the hon. Member for Oldham, West was right when he stated that it was wrong to say that this sort of thing could never happen. Indeed, he made it clear that the point involving discovery after the decree nisi should be safeguarded. It might be that those engaged in such a nefarious enterprise might think "If we can arrange it so that it will not be found out until after decree nisi, then nothing will be done about it." We believe that something should be done about it.

Dr. Gray

I will reply to the allegation made by the hon. and learned Gentleman that I do not think divorces should come before the courts in any circumstances. I have never argued that. I argued that there should be two categories of divorce. A case should not come before the courts when there is no dispute over property or children. I suggested that somebody like a registrar of births, deaths and marriages could deal with the case. But I said that any case involving a dispute about children or property should come before the courts.

I followed the hon. and learned Gentleman's argument with interest, but it did not seem to me to be as pellucid as his arguments generally are. He did not persuade me that there was any special reason that if the courts were deceived in a divorce case this was much graver than if they were deceived over any other case. Of course, it is a grave matter if the courts are deceived, but there are already powers in the law for dealing with people who deceive the courts. Why should a special provision be made in the case of the divorce courts?

It is not true to say that all eminent lawyers concerned with divorce think that such a Clause should be included. I originally put down an Amendment that this Clause should be deleted from the original Bill. I did so at the request of one of the most eminent divorce lawyers in the country, who thought that this new Clause was redundant. I am glad that the Law Officers, after a pause of time, were persuaded about my arguments on that occasion. There are sufficient powers for dealing with those who deceive the courts as the law stands, and there is no reason why the law should be specially weighted.

Mr. Peter Mahon

In fairness, is it right for my hon. Friend to say that the court has certain powers when so many instances are coming to light where the court has not the power to enforce the law which it is anxious to preserve?

Dr. Gray

My hon. Friend has a point. It is sometimes difficult for the courts to enforce the law in some respects, but they have the power to punish all those people who deceive them, no matter what may be the type of case. I see no reason why people in divorce cases should be much more heavily penalised than other people who deceive the courts.

Mr. Bruce Campbell

I support the proposed new Clause because I think that it provides a very necessary safeguard for the future administration of divorce law which, if it is to be conducted under the terms of new Clause No. 1, will provide respondents with a defence. As a result of that new Clause—which I was glad to support, although I do not think that it has gone far enough—a respondent will be able to say to the court: "The granting of a decree will cause me grave financial and other hardship. For that reason I ask you not to grant the decree." This defence will, undoubtedly, be made predominantly under paragraph (e), of Clause 2(1), where the respondent is completely innocent of any matrimonial offence, and where the court will be sympathetic to her if she is able to show that, innocent though she is, her guilty husband seeks to divorce her and that, as a result, she will suffer grave financial hardship.

Let us suppose that the husband, in order to meet that defence, tells a cock-and-bull story: "I have put aside a fund of £10,000 which, as soon as I have the divorce, I will make available to my former wife to provide for her future. She will, therefore, not suffer grave financial or other hardship, but will be able to live comfortably off". Let us suppose that the judge accepts that story, and as a result grants a decree. The wife then discovers that there is no such fund, that no provision has been made for her, and that she will suffer grave financial hardship. She will be able to avail herself of the provisions of the new Clause, and tell the court, "My husband has deceived you". The decree can then be rescinded, and the petition dismissed.

The hon. Member for Yarmouth (Dr. Gray) said that the courts already have ample powers without this addition but, with respect, I challenge that statement. In the example I have given, what can the woman do if this new Clause is not added? All she can do is to go to the Court of Appeal. If she is paying for the case, it is prohibitively expensive. If she seeks legal aid, she has to persuade the legal aid committee to give her legal aid. Then she has to persuade the Court of Appeal that, because her husband told a lie on one facet of the case, the court should set aside the decree and either dismiss the petition or order a new hearing.

That is a prolonged, time-consuming, expensive and, if I may say so, a somewhat chancy business. The Court of Appeal may not allow the appeal. The judges may say, "The husband did deceive the court on that particular matter, but, taking all the matters into account, we think that the decree should stand". The new Clause would give the respondent the right to tell the court that the other party had deceived it. If the court was of the opinion that the deception was of a serious nature and that it would be wrong to allow the decree, it could rescind the decree.

2.15 p.m.

Dr. Gray

Will the hon. and learned Gentleman clarify what he says about the deception being of a serious nature? Does he mean serious in general, or serious in that the man or woman concerned has lied in relation to the irretrievable breakdown of the marriage? I agree that it is a chancy business, and that the Supreme Court would not take into consideration a single lie if it did not concern the one principle of the irretrievable breakdown of the marriage. Is anything of that nature serious provided it does not contradict this basic principle?

Mr. Campbell

I suggest that any deception would be serious if it was of a nature which affected or might have affected the order of the court. I do not suggest that the deception should be confined solely to irretrievable breakdown. The example I gave was not connected with irretrievable breakdown, but with the grave financial hardship which the respondent might suffer as a result of the divorce. But it was a deception of a kind which, under new Clause No. 1, would have enabled the judge to refuse a decree.

The learned Solicitor-General will no doubt tell us again that it will be for the judges to work out what they think is deception of a serious nature but, if I may presume to say so, a deception would be of a serious nature if it might well have affected the decision of the court. I agree with the hon. Member for Yarmouth that very often this would be related to the question of irretrievable breakdown.

Let us hope that before we have done with the Bill we shall have excluded paragraph (e) from Clause 2, but as it is there now, let me use it in an example. Suppose the petitioner says to the court, "I have been separated from my wife for five years. Therefore, under paragraph (e) the marriage has irretrievably broken down. Please give me a divorce." The truth is that he has been separated from her for only three years. He has deceived the court in a material particular, and that material particular goes to the question of irretrievable breakdown, because Parliament will have decided, if paragraph (e) is retained, that five years' separation is good evidence that a marriage has irretrievably broken down.

We now see why it is essential to have a Clause, worded as this new Clause is, enabling the decree to be rescinded. The court will not discover the deception at the trial. After all, if the judge realised while the case was being heard that the separation had lasted only three years he would dismiss the petition, anyhow, because the first requisite for a decree had not been complied with.

The new Clause is designed primarily to deal with the situation in which the judge has been successfully deceived and has granted the decree, and then in the three months that must elapse between decree nisi and decree absolute it is discovered that the court has been hoodwinked in a serious matter.

I am sure that all hon. Members will think it important that the law should continue to be held in high regard and the proposal in the new Clause is very salutary. It lets people see that they can get a divorce if they prove certain things: but, let them deceive the court, and though a man may have been separated from his wife for a hundred years, and although she may have committed adultery with 14 different men on 101 different occasions—no divorce.

This is a healthy provision, and will make people realise that perjury, for one thing, does not pay. One of the saddest things in our divorce situation is that people in the street who, in the main, do not know anything about it, say of divorce cases that they are rigged; that they are framed; that they are arranged; that they are organised. I believe that is thoroughly untrue. As one who has spent a lot of time working in the divorce court I have hardly ever come across a case in which I have even suspected that sort of thing.

Nevertheless, it is what the public appear to think when we listen to the way in which they talk and when we read what some writers write in the newspapers. This Clause would be a healthy improvement, because it would make plain to anyone who had that sort of idea—that they could go to the divorce court and tell any story and get away with it—that they would then be made to realise that if they had deceived the court they would not get the divorce or the relief for which they were asking.

The hon. Member for Yarmouth, in talking about the powers the courts already have to deal with cases of deception, possibly had in mind that people could always be charged at a criminal court with perjury, but that is not easy. Perjury is a very difficult crime to prove. In any case it involves the beginning of criminal proceedings and although there are such things as private prosecutions one has to have the co-operation of the police to bring a charge of that gravity. All this is beyond the capability of some poor wife who, after the discovery that the fund of £10,000 does not exist, or after learning that her husband obtained the divorce by saying that they had been separated for five years when in fact they had been separated for only three, wishes to go back to the court.

Mr. Peter Mahon

Is the hon. and learned Member saying that, even if this deception he has so eloquently outlined takes place it would be difficult to indict a person who was so culpable?

Mr. Campbell

Indeed it would. I am not a criminal lawyer, but I know that a very high standard of proof is needed in a perjury case. There must be corroboration. One would want very clear evidence to put before the criminal court. Also, the co-operation of the police would be needed. A clear case, of course, could be brought to the criminal court and no doubt the police would co-operate, but how much simpler it would be for the wife who does not want to put her husband in prison—for her that is the worst thing that could happen because it would kill the goose that lays the golden eggs—to be able to see that she could be provided for if there is to be a divorce.

If the husband deceives the court about the sort of provision he will make for her or about anything else, she would be able to go back to the court and call evidence to show that her husband deceived the court. Then the judge would not have to dismiss the petition. My right hon. and learned Friend has not suggested that the judge must do so, but the Clause says: Where the court is satisfied that the petitioner has attempted to deceive the court, it shall dismiss the petition, or if a decree nisi has already been made, it shall rescind the said decree nisi and dismiss the petition, if the court is of the opinion that the deception was of such a serious nature that it would be wrong to grant the decree. The judge is left with that much discretion. Unless he is satisfied that the deception was of "a serious nature" he ought not to dismiss the petition. Husbands and wives will not run to the courts to complain about every little falsehood which may have been told, but this protection will be provided. I support the Clause for that reason and also because it would help to keep high public regard for the law.

Sir B. Rhys Williams

I feel obliged to oppose my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) in his suggested new Clause 8 for precisely the same reasons as I opposed the previous new Clause. It seeks to water down what most people who support this princple, as I do, regard as a first-class conception—the idea of irretrievable breakdown. Irretrievable breakdown is seen not to have taken place if it would result in hardship to the parties and it would be deemed not to have taken place if the parties were untruthful people. This seems a further diminution of the effectiveness of the Bill. The first-class brains, particularly the legal brains, who have attended to the drafting of the Bill should have been able to find an answer to this.

It is true that a Bill of this importance, and particularly of such moral significance, will cast extremely long shadows. It would be quite out of order to discuss the question of hardship further under this Clause, but my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) made quite clear that into the court will come people with an important interest in deceiving the court, possibly more in actions of this nature than in actions of any other kind. If legal opinion is that there will be a risk of serious deception of the court by the parties because of their anxiety to obtain divorce it should be possible for the court to protect itself in some other way against taking a wrong decision as a result of such falsehoods being expressed.

It seems most anomalous that the court should be forced into a position in which it has to say, "Your marriage has survived because you have proved yourself a disgraceful liar," but that would be the effect. I am sure that my hon. and learned Friend does not intend that the Bill should be amended in a way that would make that happen. I take exception to the phrasing in the last line of the new Clause which says that the court would be wrong to grant the decree". This puts the court into the position of a governess who has to decide what penalty is due for whopping lies and if they are whopping enough.

Sir L. Heald

The House has already agreed to that expression, after long discussion, in the first new Clause. I should have thought that it would be accepted that the phrase could be used in this Clause.

Sir B. Rhys Williams

I have not studied all the proceedings in Committee, but I thought that it was not out of order to comment on the wording on Report. I thought that was the right thing to do. It would be most objectionable if wording as loose as this—using the word "wrong" without making certain whether it means wrong in a moral or a purely legal sense—should go into the Bill.

Further, an unhappy situation might arise in that years after a divorce had been declared nisi one of the parties might be able to get it rescinded by producing evidence that the other party to the action had disgracefully misled the court. My hon. and learned Friends may tell me that that would not be possible, but it seems to me that it would be possible.

This has been very largely a lawyers' Bill. As someone who is not legally qualified I am entitled to call upon the lawyers to recognise that there is a real problem and also to ask them to define precisely how it should be solved.

2.30 p.m.

Mr. Costain

I was fascinated by the arguments presented by my hon. Friend the Member for Kensington, South (Sir B. Rhys Williams) against the Clause, although I did not find his arguments convincing. I believe that the Clause would apply only when the decree nisi had been granted and not after the decree absolute. I have always understood that the period between the two is of short duration. Will my hon. Friend make it clear whether he appreciates that the Clause applies only during the decree nisi period, which I assume could not normally be more than six months? Does not that consideration cause him to change his opinion?

I support the Clause because I believe that people who go to the divorce court should appreciate that in all courts it is an offence to commit perjury but that in a court where personal matters are concerned it should be made a definite and more serious offence. The Clause would strengthen the Bill. My hon. Friend said that one result of the Clause might well be that someone who told a whopping lie would have his marriage preserved although it had irretrievably broken down. He might also have argued that a number of marriages are kept together because the husband is able to tell whopping lies.

Dame Irene Ward

Or the wife.

Mr. Costain

I accept the correction, although if I had made the underlying point myself I should have been accused of sex prejudice. I hope that the House will accept the Clause. It would not do more than make it apparent that people cannot get away with telling lies in the divorce court. It would discourage them from so doing.

Mr. Simon Mahon

I agree with the hon. Member for Folkestone and Hythe (Mr. Costain) that it is not so much the lie that is told that keeps the marriage together as the way of telling the lie.

As one who has lived a long time and who has tried to get through married life more through charm than through ability, I support the Clause. Nobody in the House should stand warrant for anyone going into any court to deceive. How low can a person get when, on the one hand, he goes into a church and says, "For better or for worse; in sickness and in health; for richer for poorer; till death us do part", and he means it, as most of us have meant it, and then, on the other hand, because somebody intervenes he deceives his wife or the wife deceives him and is prepared to deceive the law? In the walk of life from which I come, and on the dockside, anybody who told a lie was the basest of men. It was always said that you could catch a thief but you could never catch a liar. Most of us, from whatever aspect of society we come, despise people who tell lies for their own benefit.

I am very annoyed with the Government. They are giving time to the Bill, and they are also putting their sanctions behind it. What that does to someone with 40 years standing in the Labour Party is beyond description. I shall maintain this view inside and outside the House. I am grateful to the right hon. and learned Member for Chertsey, (Sir L. Heald), who has great legal ability, for tabling the Clause. We must all have been asked to assist wives who have asked, "Can I keep the council house?" On being asked why, the answer has been, "Because my husband has obtained a divorce". On asking when they found out, we have been told, "As usual, I was the last to get to know".

I want to present a case which I believe is not out of contex. At the moment I am playing this matter by ear, because I have lived many years among my people and I think that I know what makes them tick. The Clause seeks to prevent and to contain deception. There is a great deal of deception at all levels of society which the country would be better without. There is much deception in world affairs which the world would be better without. There would be more peace and dignity if people would tell the truth instead of indulging in deception for their own gain.

I say to those of my colleagues who find themselves separated by such a great margin from me on this issue that I have always had my feet pretty firmly on the deck. Somebody who tells lies to break up a home, or to break up somebody else's home, or to murder a child in the womb, can go scot free in our society. The right hon. and learned Gentleman seeks to protect the country. I want an answer from the Government, in view of this legislation and in view of projected legislation, because I do not intend to waste my time all my life on supporting people with whom I do not agree.

I have said that somebody who tells lies in court to break his home or to break somebody else's home and somebody who tells lies to murder a child in the womb can go scot free, but if another man—to protect his home, to protect the moral standing of his home, to protect his marriage, to protect his wife, and to keep his wife and the children of the marriage—withdraws his labour, under the projected legislation he can be sent to gaol, although the villain who has broken up a home can be removed from all sanctions of the law.

I say this with all the experience at my command. I hope that I shall be listened to and that my warning will be heeded. I mean every word of what I am saying. If we do not agree with the right hon. and learned Gentleman, the process in which Parliament is indulging of creating a society in which the real criminals are absolved and new criminal classes of the innocent and the righteous are being created will be perpetuated. It was not originally my intention, when I came into the Chamber a short time ago, to speak on this new Clause. The words of the hon. Member for Kensington, South (Sir B. Rhys Williams) have brought me to my feet. I never thought to hear any hon. Member in any part of this House say that it does not matter whether people tell lies in court or not. But that, virtually, is what he said. Whether the matter be divorce, whether they be criminal matters, whether they be ordinary common law matters, that is the permissive society carried to madness. Hon. Members have said that this is a mad Bill, and I agree with them, but that is not the point for the moment. What the hon. Member for Kensington, South said was that this is a good Bill and there should be no restrictions put upon it. I clearly heard him say so, and I am sure that other hon. Members did, too. With every word of that I disagree.

Assuming for a moment—I sincerely hope I am wrong—that this Bill becomes an Act, just think what things the court will have to decide under this Bill. Look at Clause 2. I am not going to read all these things out to the House because the House will be well aware of them, but Clause 2 says that where the petitioner finds out—

Mr. Deputy Speaker (Mr. Harry Gourlay)

Order. I hope that the hon. and learned Member will address his remarks to new Clause 8 which is before the House.

Mr. Doughty

I am addressing my remarks to new Clause 8, but when we are to consider whether a person is obliged or not to tell the truth, we must consider on what matters he is to tell the truth. These are some of the matters, if this Bill becomes law, upon which he will be called upon to tell the truth. I am not going to read them all out but I draw attention to one or two: that since the celebration of the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; that since the celebration of the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". Then there are other things in new Clause 1 which was introduced this morning. They are very searching. I criticised them as being too searching, because of the demands which they will put upon the court to find out where the truth lies, and following that with the action it is to take.

I am shocked to hear that the permissive society has got so far. If I had anything to do with it I would put it in reverse. But it has got so far that people can say, "Oh, well, it does not matter. If the marriage has finally broken down, what people say in court does not matter". As someone who has been practising in those courts for over 40 years, I thoroughly disagree with every word of that.

It is difficult enough for a judge, very often, looking into the private lives of two people brought before him, to find out exactly where the truth lies. Perhaps somebody, glib-tongued and slick, can get away with it in the short time, and it is a short time, of the hearing, or before the decree absolute, three months, and may be less where a special order is made. There is not much time to find out about dishonesty. The hands of the court are to that extent tied. It is difficult for the court to be able to say, "You lied to me on a material point and therefore you got your decree nisi by dishonesty".

This cannot be remedied, as the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) said, by prosecution for perjury. In some matters, criminal matters, for instance, the onus of proof is a great deal higher and yet it is a fundamental difficulty for the jury to find out exactly where the truth lies. A judge in a divorce court, with his vast experience of this type of work, can more easily find out, but his task would be made much more difficult if the truth were not requisite.

It is for these reasons that, although I did not intend to do so, I have intervened in this debate, trying to bring the House back to the importance of maintaining the integrity and honesty of those who appear before the courts, whatever courts they may be, but particularly in relation to such personal matters as divorce.

2.45 p.m.

Mr. Abse

I think that there would be no one in this House who would adopt anything but the most critical and severe attitude to anyone who attempted to deceive the court. I am sure that the hon. Member for Kensington, South (Sir B. Rhys Williams), when he made his case, shared that view, and certainly I did not in any way interpret his comments in the way in which, quite clearly, but I think wrongly, the hon. and learned Member for Surrey, East (Mr. Doughty) has.

As I understood the argument which was being advanced by the hon. Member for Kensington, South, he was being very logical, in the light of his last intervention, in putting this view. He was really suggesting that it seems illogical and unattractive that someone should be punished by remaining married in circumstances in which it would otherwise be permitted for the marriage to be terminated. I would have thought there was certainly no need for the moral strictures of the hon. and learned Member for Surrey, East against the hon. Member for Kensington, South.

I should like to take it a little further. Perhaps the hon. Member for Kensington, South does not fully appreciate this. What the House has to decide, in making this judgment on whether there should or should not be a Clause of this kind relating to deception, is what its possible consequences may be, not only to the deceiver, but to those who are perfectly innocent, to his wife and to his children. It is because of this that I certainly have the greatest doubts about it, whatever may be the desire of people to uphold, as all of us want, the dignity of the court, and to make certain that people, when they come before the court, should not feel that they can behave in a most reckless manner. When the House considers, as it must, what may be the consequences, if we take up this very stringent attitude which is proposed, if deception has taken place—

Mr. Doughty

Did I hear the hon. Member aright? Did he say "stringent attitude" when the only question is whether we tell the truth?

Mr. Abse

I am very sorry, but I did not hear the hon. and learned Member.

Mr. Doughty

Did the hon. Member say it is a stringent attitude when the only question is whether we tell the truth?

Mr. Abse

That was not the stringent attitude. The stringent attitude is, in the terms of the new Clause, in insisting that the court should decide to rescind the decree on the ground that there has been deception on the part of one of the parties, and what I was saying was that in considering that proposition the House must consider the consequences, which might be disastrous. I did not suggest, nor, indeed, I believe, did the hon. Member for Kensington, South, that there should not be a very stringent attitude to deception. The stringent attitude is in the implementation of the Clause.

Mr. Bruce Campbell

I do not follow the hon. Member about this "disaster". Would he explain what disaster this is? Is the disaster that the respondent will suffer by being divorced against her will?

Mr. Abse

The hon. and learned Member is preoccupied with one aspect of the matter. Let me indicate to him what I have in mind. It could be—could it not?—if some deception had taken place, and the court demonstrably had come to the conclusion that it had, yet despite that grave deception which had been practised, the court could conclude that, out of the interests of the children of the marriage, for example, it should be terminated. Are we prepared to say that because the petitioner has told a lie, or attempted to mislead the court, the innocent should suffer, because of the act of the guilty? That situation has to be faced.

I acknowledge that the courts have a right to feel that the Acts which we put in front of them will protect the courts. The best method has been adopted in this Bill, to prevent lies which do come before the court, which are lies which only too often arise—out of the question of collusion, out of connivance, and lies which arise out of discretion statements. Anyone who knows about the divorce courts knows that deceptions arise because we have these doctrines of collusion and connivance and the infamous discretion statement—

Mr. Wilkins

The hon. Member talks about the punishment of the innocent, but does not he agree that the Bill does this all the way through?

Mr. Abse

If I may seriously pursue the argument without interventions of that kind, I am suggesting that the Bill has taken out of the law the doctrine of collusion and connivance and the need for deceptive discretion statements. We are doing far more than attempting to insert a Clause that could have as a side effect a serious consequence upon the parties and the children to the marriage and cause a marriage to remain in existence although it is contrary to the public interest that it should do so. When this issue came before us last Session many hon. Members—as the right hon. and learned Member for Chertsey (Sir L. Heald) will know, since he appears to have refreshed himself of the last occasion—including the hon. Member for Chelmsford (Mr. St. John-Stevas), despite his deep religious convictions, after much thought came to the conclusion that to insert a Clause like this would be quite immoral. The House must make a judgment.

When we have taken away as much as we can of the provocation to deception, are we prepared to go further and to say: given the fact that there is a lot of perjury and that people who tell lies before the court can be punished and sent to prison, we will take the risk and insist upon marriages remaining in existence, dead though they may, undesired as they may be by the parties, because somebody has told lies? I hope that if anybody is suggesting that in putting forward this view I am condoning deception or lies, that suggestion will be regarded as far from the truth.

The sponsors of the Bill, by the way in which they have sought to remedy the existing law and take away the provocation to deception, have probably narrowed the area where it is likely to take place. Although there are strong arguments for the new Clause, and I acknowledge, now that collusion, connivance and the discretion statement, where are the main cause of lies by people appearing before the court, have been effectively eliminated by the Bill, on balance I am against the Clause.

Mr. Percival

I rise only to express the hope that we may hear the view of the Government on this before the House comes to a conclusion. I appreciate that the Government may say about parts of the Bill which deal with circumstances in which there should be a decree that this is a matter of opinion on the merits on which the House should itself come to a conclusion.

I hope that I shall have the ear of the Under-Secretary of State for the Home Department. If he has just sent for the Solicitor-General, he need not have done so. My point is one for the Home Office rather than for the Law Officers, which is why I am glad to see the Under-Secretary here.

Consideration of the grounds of divorce is a matter for the opinion of the House, but the new Clause brings in an element of public policy, that is to say, what effect upon the administration of justice there may be if we fail to punish attempts to deceive the court. I hope that the Minister, with his great Department of State behind him, will not underestimate the importance of this.

It is all very well to be rational and lobical about such matters, but those of us who practise in the law know full well how often it is that when one has succeeded in relieving someone of the danger of a severe punishment that person is apt to say: "It is easy to get away with it, nothing happens". What may be a wholly logical and rational approach may have the result of lessening the respect for justice and thereby render even more difficult the administration of it.

There are alternative ways of dealing with lying to the court. It is quite right, as the hon. Member for Pontypool (Mr. Abse) has said, that there are laws about perjury, and he will not underestimate the difficulties of implementing those laws. First, they apply only where evidence has been given on oath. Secondly, the hon. Member for Pontypool will know the heavy burden there is in establishing the falsehood of what has been said on oath. He will know that it often happens that a judge has a strong suspicion that he has been misled and says that the papers shall be referred to the Director of Public Prosecutions. The Director of Public Prosecutions must look at the matter from a different point of view. He will want to know whether there is sufficient evidence to bring home a charge of perjury in a criminal court.

We must be sure, even although it may in some circumstances cause temporary hardship, that Parliament is making it quite clear that a very serious view is taken of attempts to deceive the courts and that people who attempt to do so may expect, as a result, to suffer hardship. That is all that the new Clause would do. It would not necessarily freeze the situation for ever more to the detriment of everyone concerned. If it were depriving the respondent of a divorce which the respondent wanted, it is difficult to visualise circumstances in which it would not be possible, after the petitioner's decree had been dismissed on this ground, for the respondent to start new and honest proceedings and to get a decree without any attempt to deceive the court.

I very much doubt whether the new Clause would have the consequences which the hon. Member for Pontypool puts forward, but I do not want to depart from the ground which I stated as my reason for standing up. There is an element of public policy involved here and I hope, before the House comes to a conclusion on this, that we shall have the benefit of the advice of the Under-Secretary of State upon it.

Mr. John Lee

There is a phrase which comes to mind from one's first student days that those who come to equity come with clean hands. Although I practise in the common law and although practice in the common law and at the criminal Bar tends to engender a degree of professional cynicism and one does not expect the white flower of innocence to blossom in either the dock or the witness box so very much, there is an inclination in some quarters to treat the question of deceit of the court a little too lightly. Although I felt that some of the remarks of the hon. and learned Member for Surrey, East (Mr. Doughty) on the subject of the permissive society were a little tendentious and, perhaps, unfortunate, I find myself, at any rate, 90 per cent. in agreement with him.

The fact remains that the courts have a difficult enough task as it is with the legitimate practices of members of the Bar in the promotion of their clients' interests in criminal or civil matters which may be under discussion and in dealing with witnesses who are sometimes stupid or dishonest, or sometimes both. For this sort of provision to be included, however, is nothing unreasonable.

My hon. Friend the Member for Pontypool (Mr. Abse) drew attention to the provisions for perjury. I cannot remember the last occasion when I came across a perjury prosecution. On one occasion years ago, when I was exercising magisterial jurisdiction abroad, in exasperation I attempted to have proceedings for perjury instituted against a particularly impudent, lying witness and I was gently persuaded by my elders and betters, those more experienced than I, of the realities of the situation and to abandon such things as being impracticable.

3.0 p.m.

The new Clause which the right hon. and learned Member for Chertsey (Sir L. Heald) has put forward is not obligatory. It does not automatically disqualify anybody who is so ill-advised as to appear before the courts and tell lies of a substantial character. What it does is to give the judge discretion not to implement the decision. It would be likely to have a beneficial effect in this way. Those solicitors who practise in the divorce courts and who have no illusions about the temptations of people to lie in these matters will be able to say to their clients, if they suspect that something untruthful is afoot, "If you go before the court and tell your story, and it should turn out to be held as a matter of fact that it is untrue, your suit will be at risk and you may suffer the consequences as a result". That does not seem to be an unreasonable thing to do.

The Bill includes paragraph (e) of Clause 2(1), which introduces for the first time, and it has been accepted by the House, the principle of the unilateral repudiation of a marriage, with all that that entails. This is not the right place to discuss the merits of that, but I hope that we shall be able to do so on Third Reading, because the Amendment concerned with it has not been selected.

It does not seem to me to be unreasonable that the courts should be given, added to their not very extensive armoury of powers, a provision that might do something to make people treat a little less lightly the idea that they can tell lies of a substantial character in court, get away with it and benefit by their perjury.

Dame Irene Ward

I support the new Clause moved by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald). I have only two brief observations to make. First, the country as a whole would be extremely surprised to hear that anybody in the House of Commons should oppose a Clause of this kind. It is essential that from this House the country should think—as, indeed, it will—that we uphold the speaking of the truth in the courts and that anything that can be done to strengthen that position is very satisfactory action for the House of Commons to take.

My second point concerns the way in which the hon. Member for Pontypool (Mr. Abse) produced his views on the law of perjury. He seemed to think that because there are on the Statute Book laws which apply to perjury, that puts the whole matter quite right and gives the necessary protection to the courts. Having sat as a magistrate for many years, I have never found that the law of perjury was ever called upon to deal with people who, it was perfectly obvious from where one sat on the magisterial bench, were not telling the truth. Time and time again I have wondered why an action for perjury was not set in motion.

I cannot say whether the law is strong enough or is difficult to implement, as my right hon. and learned Friend seemed to indicate, but I certainly am not prepared to rely on the law of perjury in this instance. I wanted to put this firmly on record because I have not had an opportunity to say that I have never thought that the courts of summary jurisdiction have sufficient protection against witnesses who do not tell the truth when they come before them. I think that my right hon. and learned Friend has done a great service by introducing this new Clause. As I said before, I think that the country would find it difficult to understand why anybody could oppose what is embodied in the new Clause. Therefore, I give it my wholehearted support.

Sir Eric Fletcher (Islington, East)

I was not intending to speak in the debate on this new Clause and I must apologise to the House because I have not heard the whole of the argument. However, I think it is important, before we depart from the discussion on the new Clause, that we should have the benefit of hearing the advice of my hon. and learned Friend the Solicitor-General who unfortunately is detained elsewhere for the time being. [An HON. MEMBER: "Where is he?"]

Having heard some of the debate, I must confess that I think that it raises a serious issue. Everyone who has practised in the divorce courts over a number of years, as I have, is bound to recognise that justice is sometimes obscured by distortion of the facts or by non-disclosure of relevant facts. In the divorce jurisdiction there are many cases in which the courts often have to exercise a discretion and one knows, as a matter—

Mr. Simon Mahon

On a point of order. Is it not alarming that the Government Front Bench, on a most important debate like this where the Government are so heavily committed, should on occasions be empty and on others be occupied by only one Member?

Mr. Speaker

Order, Feelings of alarm are highly emotional but not points of order for Mr. Speaker.

Sir Eric Fletcher

I respectfully agree with your Ruling, Mr. Speaker. I have no doubt that any remarks being addressed to you, in the absence of my hon. and learned Friend the Solicitor-General, will be adequately and faithfully conveyed to him before he has occasion, if he catches your eye, to reply to the debate.

I was saying that I am conscious of the problems which arise in divorce cases when judges of the Probate, Divorce and Admiralty Division of the High Court often have to exercise a difficult discretion without knowing the full facts and sometimes being aware, as they must be, that they have not got the whole truth before them. I think that is inevitable in any cases arising in the divorce jurisdiction.

The new Clause moved by the right hon. and learned Member for Chertsey (Sir L. Heald) raises a distinct matter of principle. The new Clause suggests that in a case in which a petitioner has attempted to deceive the court, it shall dismiss the petition … if the court is of the opinion that the deception was of such a serious nature that it would be wrong to grant the decree. I understand that the new Clause seeks to embody the principle that absolute candour in our courts of justice is something of pre-eminent importance and that perjury is a very serious matter. I am bound to say that I agree with that view. Ever since the Commandments were handed down on Mount Sinai, to give false witness against one's neighbour has been regarded as one of the most heinous of sins. I therefore think that we should be remiss if we did not recognise in this Clause the great seriousness of bearing false witness against one's neighbour and of giving on oath in court any kind of evidence which is perjured.

I agree with what has been said, that it is noteworthy that for a great many years there have not been many prosecutions for perjury, but I am conscious of the fact, as I am sure others are, that the value of the oath and the importance of it are declining, and that it is losing its significance. This is largely because there have not been any prosecutions for perjury. The absence of such prosecutions is making people indifferent to, or regardless of, the necessity not merely of telling the truth, which is bad enough, but, what is much worse, of not telling falsehoods on oath.

Unfortunately this stain on our society derives from the fact that many members of the population no longer have much regard for the sanctity of the oath. This is because they no longer fear the consequences of perjuring themselves, consequences which in previous years were regarded as very serious indeed. I have often been troubled about what should be done when hearing people in the witness box almost callously take the oath, perhaps not even having regard to the deity and not thinking that there is anything particularly relevant or distinguishable between giving evidence on oath and making statements that are not protected by the sanctity of an oath.

In so far as that is so, it makes the task of those who are concerned with the administration of justice, particularly the judges, much more difficult, and I think that it is the duty of this House to place on record our view that for any litigant, or petitioner, or witness, whether in divorce proceedings or in any other, to attempt by giving false evidence to deceive the court is to do something which we regard as very serious indeed.

I think that it would undermine the whole administration of justice if the idea got abroad that people could be reckless in making statements in the witness box, and if they felt that the risk of prosecution for perjury was so remote that it did not matter. It would make it almost impossible for the judges to administer justice and to ascertain the facts and to decide who was right and who was wrong if there were a contest. But what is even more serious is that in undefended cases which come before the divorce courts on uncontradicted evidence there is a paramount duty on those who apply to the court for relief in matrimonial matters to be absolutely candid in the facts which, as the law states, they are required to place before the courts.

Therefore, while, as my hon. Friend has said, this Clause is not compulsive on the court but will entitle the court to exercise its discretion, it would be salutary to write into the Bill a Clause of this kind, and I hope that it will be accepted by my hon. and learned Friend.

3.15 p.m.

Mr. Alexander W. Lyon (York)

I followed closely the logic of my right hon. Friend the Member for Islington, East (Sir Eric Fletcher) and I see the significance of what he said about the value of speaking the truth in any judicial proceedings, but it is an unfortunate flaw in his argument that in civil and criminal proceedings the courts do not have the additional provision requested by this Clause and which is virtually the same power as the divorce courts have at the moment.

The question is whether the divorce courts require any power in addition to the law of perjury which is not available to the civil and criminal courts. I suggest that there is need for that additional power for the very reason that divorce proceedings are completely different from civil and criminal proceedings. Civil proceedings are clearly a combat between two contestants, each of whom has to produce his evidence. If he does not, he fails. It is no use saying that, in that kind of situation, one is trying to get at the truth. This may be the theory but the practice is that one is looking for the stronger case and one deals with it on that basis. In that kind of situation, the law of perjury, despite the necessity for having corroboration by a separate witness, is adequate. In criminal cases there is a difference in that, although there are two combatants, there is an overriding public interest. Nevertheless, the same argument applies there as well.

However, in divorce proceedings there is no combat between two contestants. It may look like that to the disinterested layman but, in fact, society, through the judge, is deciding whether it is in the interests of society as well as of the parties that a marriage should be broken up. It is this intervention of the general social interest of the public which is a hangover from the old ecclestiastical jurisdiction which makes divorce proceedings very much more like continental proceedings, whereby the court is not simply an arbiter between two contestants but a sort of interlocutory judge seeking the truth.

If the Bill is to proceed, it is vital that that principle should be not only maintained but underlined. The essence of the Bill is that divorce will be allowed when and only if there is an irretrievable breakdown of the marriage. Society says that, in every other case, it is essential to preserve the marriage but that it is not essential where the relationship is broken so much that there is no point in going on with the marriage.

In that kind of situation, it is essential that the judge should have every atom of information available to make his decision and, in addition, that he should be able to know that the information is true. It is surely, therefore, necessary to put upon the contestants an obligation to speak the truth over and above their general liability in respect of perjury. It is rather like a contract of insurance, where the law implies an undertaking that, whenever one applies for a contract of insurance, there is a burden on one to disclose all one knows because it is essential that the insurer should be able to make a valid judgment about the risks involved.

Mr. Peter Mahon

Surely, in the case of an insurance, if the holder does not pay the premium, he does not get the protection of the policy. Is it too much to ask that a person who does not tell the truth in the divorce court should not get the protection of the court in the same sense as a person who tells the truth, the whole truth and nothing but the truth?

Mr. Lyon

I am not attracted by an argument in relation to divorce which talks about punishment for offenders. It is desirable to get away from the concept of matrimonial offence and of any punishment for wrong doing. What I am saying is that the divorce court jurisdiction is essentially society's judgement upon a marriage and not simply the view of the two parties to the marriage about whether it should continue. It is right, therefore, that the court should have completely truthful information to enable it to make a valid judgment, so the new Clause, or something like it, should be passed and it is regrettable that it was dropped from the original Bill.

Mr. Wilkins

I do not know whether this occurred before your occupation of the Chair, Mr. Speaker, but a number of requests were made for the opinion of the Solicitor-General on the points raised in the new Clause. I believe that a search party was sent out for him, which eventually found him. Could we now have the benefit of his advice?

Mr. Speaker

That is an illuminating narrative of what happened, but whether the hon. and learned Gentleman intervenes is a matter for him.

The Solicitor-General

This new Clause raises the question of the desirability of a reserve power in the court to refuse a decree where there has been deception. I have taken the view, since I first started considering this point, that it is rather a narrowly balanced one. I believe in telling the House or a Committee when I find an argument fairly narrowly balanced, and this is one.

The argument which prevailed with the Committee on this point was that deception was not, or need not be, germane to the issue of irretrievable breakdown, the concept introduced in the Bill. Indeed, if there has been deception to try to get a decree, that circumstance points rather in the direction of irretrievable breakdown than in any other direction, I should have thought. It was the logic of that view which I think impressed the Committee, and it impresses me.

It is true that, on an earlier occasion last Session, I recommended the retention of this reserve power to the Committee, but we should bear in mind that I did so in a rather special context. The House had given its approval to the principle of irretrievable breakdown in giving the Bill a Second Reading in that Session, as it has done to this Bill in this Session, but presentational factors, it seemed to me at that time, rightly or wrongly, were of great importance. To carry public opinion with a Bill of this kind, I thought it would be desirable to provide for this reserve power. That was my earlier view.

The position now is rather different. The logic which follows from applying the concept of irretrievable breakdown as the sole ground for allowing a dissolution of marriage is to my mind rather in favour of resisting the new Clause. If the sponsors of the Bill thought it appropriate to recommend that course, I am inclined to think that they would be right.

Sir L. Heald

Is it not a fact that when the former Bill was before the Committee the Solicitor-General recommended acceptance of the Clause? He has not been present during the discussion on this occasion. Is not that right?

Sir Eric Fletcher

Am I correct in understanding my hon. and learned Friend to say that deception of the court is likely to be an indication of the irretrievable breakdown of a marriage? If so, that seems an intolerable proposition.

The Solicitor-General

May I say in answer to the right hon. and learned Member for Chertsey (Sir L. Heald). that I have listened carefully on more than one occasion to the arguments on this matter. I heard the beginning of the debate on this new Clause. I left the Chamber shortly after two o'clock, having spent the rest of the day in attendance here. I assure the right hon. and learned Gentleman that I believe that I am well acquainted with the arguments which can be adduced on this issue.

I ask my right hon. Friend the Member for Islington, East (Sir Eric Fletcher) to consider that there is force in my proposition. If the stage has been reached in a marriage at which spouses go before the court and tell deliberate untruths to achieve a decree, that is, prima facie, good evidence that there has been an irretrievable breakdown of the marriage.

Several Hon. Members rose

Mr. Speaker

Order. We cannot have too many interventions. I think, however, that the hon. and learned Member for Southport (Mr. Percival) had been seeking to intervene.

Mr. Ian Percival (Southport)

I had the good fortune to catch your predecessor's eye, Mr. Speaker—

Mr. Speaker

Order. The hon. and learned Gentleman cannot make another speech. He has exhausted his right to do so. However, I noticed that he several times tried to intervene in the Solicitor-General's speech. He may put a question, but that is all.

Mr. Percival

I am obliged, Mr. Speaker. I was about to explain that that was what I wished to do.

Before the Solicitor-General sits down, will he enlarge on the point that he made? It is a curious argument that lies are likely to be evidence of irretrievable breakdown. There is a definition of "irretrievable breakdown" in Clause 2. If the conditions there set out are satisfied there will be no need for anybody to lie. If people lie or attempt to deceive, it will be, ex hypothesi, because they do not have grounds for divorce as defined by the Bill. In the light of that, would the right hon. and learned Gentleman reconsider his view?

3.30 p.m.

Sir Cyril Black (Wimbledon)

I find it difficult to understand the arguments of the opponents of this new Clause, who have sought to persuade the House that the present law of perjury is adequate to deal with the evil with which the Clause deals, namely that of a party who attempts to decieve the courts.

As I as a layman understand the matter, one of the main arguments advanced by the promoters and supporters of this Bill for the very radical change in the law which it seeks to make is that, as the law stands at the moment, a great many divorces are obtained in conditions involving what I have heard variously described as sham, deceit, hypocrisy, lying and collusion on the part of witnesses. This being so, it is important to change the state of affairs which it is alleged arises from the present law and to substitute for it a law under which these conditions are much less likely to arise.

If we are prepared to accept as correct all that has been said about the alleged amount of deceit and untruthfulness on the part of witnesses in the divorce courts under the present law—a deceit which, on their own view of the matter, the law of perjury has done practically nothing whatever to curb, a state of affairs which, in their view, has continued for many years past and in which, so far as I am aware, there has not been one single case of perjury brought as a result of this appalling state of affairs—yet when my right hon. and learned Friend brings forward a very modest and reasonable Clause which is designed to deal with this evil of untruthful evidence in the courts, we are seriously told that the state of affairs against which my right hon. and learned Friend wants to legislate is better left to the law of perjury because that law is adequate to deal with the matter. That is one of the most inconsistent and ridiculous arguments to which I have listened.

The point has been made that this new Clause would be a punishment upon a witness exercising deceit before a court of law. In one sense that is true. But the point has not been made that the value of the new Clause, if written into the Bill, surely lies much more in what the new Clause would prevent rather than any punishment which it would impose upon those who offend against it.

What the promoters of the new Clause are concerned with, as I understand it, is not primarily the punishment of liars in the courts, but very much more than that. They propose to write into the Bill what may be an effective deterrent in stopping people going into the courts and telling lies. I suggest that the main value of the new Clause, which I support, is in its deterrent value rather than any question of punishment which would be imposed on those who offend against it.

It has been said that the implementation of this Clause might do grave injustice to innocent parties involved in proceedings in the court. That is not the case, because all that the Clause would do would be to give certain powers to the courts to deal with the offence of lying in a particular way. This would be a discretion that could be exercised by the court. It would not be obligatory on the court to exercise that discretion in any particular way. In circumstances where the court felt that the balance of advantage lay on the side of not imposing the penalty on the person who sought to deceive the court, the court would presumably exercise its discretion in such a way as to do good to the largest number of people over the widest possible area.

A point that has so far not been made is that even if the court were to intervene and dismiss the petition on account of the deceit of one of the parties, that would not be the end of the matter for all time. After the person who had deceived the court had suffered the penalty of the proceedings being dismissed because of that deceit, as I understand the law there would be nothing to prevent that party initiating new proceedings and coming before the court again in a spirit of frankness and truthfulness, and with clean hands. The case could then be considered again on its merits in the light of the truthful evidence tendered then as against the untruthful evidence tendered on the previous occasion.

I ask the House to consider the effect on public opinion if the new Clause were to be rejected. I know the careful arguments that have been addressed to us today on the question of condoning untruthfulness. It has been said by those who oppose the new Clause that they are just as much opposed to deceit and untruthfulness in the courts as are we who support it—

Mr. Alexander W. Lyon

I do not think that the hon. Gentleman has got the full purport of the Solicitor-General's intervention. As I understand him, my hon and learned Friend is not opposed to deceit. He wishes to create a new ground of divorce in addition to the other five. It is that if one cannot prove one of the five grounds one deceives the court, and is entitled to have the marriage dissolved, in any case.

Sir C. Black

I am obliged to the hon. Gentleman for his entervention. I was not referring particularly to the speech of the learned Solicitor-General but rather to those of other hon. Members. Many of those opposing the new Clause have adopted the attitude, "We are as much opposed to deceit and untruthfulness in the courts as are those who support the new Clause, but we think that there are good reasons why the new Clause should not be added to the Bill".

I have no intention or wish in any way to question the sincerity of their views. I do not for one moment believe that any hon. Member would condone or take a light view of a witness in a court of law being deceitful or untruthful. But these niceties of argument are not understood by the public at large. What will be understood by the public at large if the new Clause is rejected is that there were those here who were desirous of adding to the Bill a safeguard to discourage deceit and untruthfulness in the divorce courts, but that a majority of hon. Members were not willing to have that safeguard added. The inevitable conclusion will be, however erroneous it may be, that a majority of hon. Members take a somewhat light and lenient view of the enormity of the offence of deceit and untruthfulness in the courts.

Sir Eric Fletcher

Would the hon. Member be good enough to address himself to the argument of the Solicitor-General, which as I understood it was that the more one deceives the court the more one can prove the irretrievable breakdown of a marriage and therefore one could have a divorce?

Sir C. Black

My difficulty about responding to that request is that I found myself unable to follow the logic and the reasoning of the Solicitor-General. Therefore, I have not sought to reply to what he said because I did not follow fully the reasoning of the short speech he made.

The Solicitor-General

The hon. Member for Wimbledon (Sir C. Black) has been invited to deal with an argument of mine. I am sure he would prefer if he is to deal with an argument of mine that he should deal with it on a full and accurate understanding of what the argument is. I put this to him. Suppose that in a particular marriage there has been in fact an irretrievable breakdown. Does he think that in that situation a court should have discretion to refuse a decree because there has been a deception?

Sir C. Black

Yes I do think so, bearing particularly in mind that a dismissal of the case is not the final dismissal of the case. It is merely delaying a relief which a party is seeking to obtain because that party has come into court in a spirit of deceit and untruthfulness. Bearing in mind, as must be borne in mind, that after an interval the party can come back after he has, as it were, purged his contempt and start again, it is right in the interests of truthfulness in the court that he should suffer the disadvantages and delay of his first petition being dismissed.

The effect on public opinion of a decision against this new Clause would be deplorable and would not serve the interests which I am sure all hon. Members have at heart.

Mr. Hugh Delargy (Thurrock)

I have been greatly astonished by much that I have heard in the last hour or two. I am not quite so charitably-minded as the hon. Member for Wimbledon (Sir C. Black) who absolved from any guilt everyone who has spoken against this Clause. I am astonished that any hon. Member should oppose the principle that people should tell the truth and that any hon. Member should go on record as voting against the principle of telling the truth. I am greatly astonished that hon. Members think that persons should be protected and rewarded for telling lies, and for telling lies on oath, which is what opposition to this Clause means.

I am sure that I must have misunderstood the Solicitor-General three times over. He cannot possibly mean what I believed three times he meant. He said that deception in court points to the irretrievable breakdown of a marriage. I thought that the court was set up to examine this contention. My hon. and learned Friend, it seems, is establishing a new ground for divorce—that of telling lies in court.

Mr. R. Gresham Cooke (Twickenham) rose

Mr. Abse rose

Mr. Speaker

The hon. Member for Thurrock (Mr. Delargy) must decide to which of the two hon. Gentlemen he is giving way.

Mr. Delargy

I do not mind which.

3.45 p.m.

Mr. Abse

Will not my hon. Friend acknowledge that if a man goes into court—this is the point which the Solicitor-General was making—and takes the grave risk of committing perjury because he desperately wants a divorce, and shows that he is prepared even to behave criminally because he is so cer tain that his marriage has ended, that establishes to an even greater extent that it is unlikely that the marriage can ever be healed and that it has irretrievably broken down?

Mr. Delargy

I am glad that my hon. Friend spoke for the Solicitor-General, though I am sure that my hon. and learned Friend the Solicitor-General would not be quite so absurd as that. I as a simple layman believe that people go to court to establish whether there are grounds for divorce. Grounds for divorce are not provided before the divorce judge. The argument apparently is that a man who commits a criminal offence in a divorce court can have a divorce immediately. If so, why is the Bill needed? All that someone need do is to file a petition for divorce and go to court and tell a pack of lies, because in the words of the Solicitor-General that establishes grounds for divorce. I am bewildered and shocked.

Mr. Alexander W. Lyon

Is not this argument diametrically opposed to the attitude of the Law Commission to the proposal of the Archbishop's Commission that the breakdown of a marriage should be the one and only ground for divorce? The Law Commission said that that was unworkable in court; and, therefore., we have to have five tests. What, as I understand it, the sponsors and the Solicitor-General seek to do is to add to the five tests a sixth test—namely, that if somebody is prepared to tell lies that shows that the marriage has broken down too.

Mr. Delargy

I am grateful to my hon. Friend. He has taken the words right out of my mouth. That is precisely what I wanted to say. I am glad that my hon. Friend said it. I emphasise it and agree with him. I hope that the whole House will agree with him.

Mr. J. E. B. Hill (Norfolk, South)

I have never supported the idea that on these important matters of social legislation the Government should be neutral, but the Solicitor-General has adopted that attitude. It appears that he has changed his opinion during the passage of this Bill.

The Solicitor-General

Not during the passage of this Bill. The different attitude which I expressed earlier, and which I freely acknowledge that I expressed, was in connection with last Session's Bill.

Mr. Hill

I apologise to the hon. and learned Gentleman. I understood him to say that the House having accepted the doctrine of irretrievable breakdown, that alters his decision that some additional safeguard for the courts was desirable. That is an astonishing doctrine, as so many hon. Members have said. One thing which has impressed me about nearly all the recent speakers is that they have mostly been practising lawyers and, therefore, familiar with court procedure in a way in which those of us who are not practising lawyers would not currently be familiar. Therefore, the earliest arguments against the Clause advanced by the sponsors, namely, that some lawyers contend that it would be redundant, fall.

Though the Clause may be redundant for a lawyer, it would be a salutary warning for potential petitioners. The only other point made by the sponsors was the suggestion by the hon. Member for Pontypool (Mr. Abse) that for a petitioner to lose his decree because of deception or attempted deception might inflict hardship on others, namely, children. This is a specious argument because, although that might be the result, it is far more likely to be the result precisely the other way round. In view of the notorious Clause 2(1)(e), a petition can be presented against an unwilling and innocent spouse who herself—it is almost certainly a wife, though it need not be—may well have children. For a divorce to be achieved by deception, that result is both more likely, in my view, and, of course, much more to be disapproved.

Therefore, it seems to me that the sponsors have made no case against accepting this new Clause, and this is what is worrying me, because apparently it had been recommended by the Law Commission, should the divorce law be reformed, and the Law Commission, I do not think, has resiled from that position at all. Therefore, we are in the astonishing position that, with practising lawyers supporting it, distinguished Members on both sides of the House, the sponsors making no case against it, the Government being neutral, having changed their position, we are apparently to be—not refuted by any argument—left in the hope that, if a Division on the Clause be called, numbers will be sufficient to carry it through.

There has been very great confusion and alarm as to what exactly the Solicitor-General said in his first intervention.

Mr. Peter Mahon

Will the hon. Gentleman not agree that it would be a singular sort of madness for a person who had a bona fide case, an irrefutable case, for divorce, to go into court and deliberately tell untruths?

Mr. Hill

This is so. I take the point, which has been made earlier, that many petitioners go into court in the urgent desire of procuring divorce by hook or by crook, if they can get away with it.

But the Solicitor-General, as I understood him, said, in effect, that one way of showing that a marriage has irretrievably broken down is to lie to the court, and my impression has been confirmed by many subsequent speakers. Although the Solicitor-General said that his change of view was based on the thesis, as I understand it, that if the fact of an irretrievable breakdown is established then it does not matter whether the petitioner has attempted to deceive the court, I think the Solicitor-General, to some extent, was begging his own question, because if we have deception mixed up in a case then the apparent proving of the facts may itself result from the use of deception.

It is important that the House should consider the record of what the Solicitor-General said. There are only seven minutes to go. Earlier in the day an attempt was made to close debate. It is quite clear that the debate on this Bill will continue—I hope in Private Members' time. I also very much hope that no decision on this Clause will be taken till we have had the chance of considering what the Solicitor-General said, because that statement, as it stands on the record, will cause a great deal of public disquiet. My hon. Friend the Member for Wimbledon (Sir C. Black) has already pointed out the severe criticism, almost incredulity, which will follow if it appears that the House of Commons has rejected an attempt to require petitioners to—and an attempt to warn petitioners that they must—go into court and make a clean breast of their side of the story and not withhold any material evidence. This is a matter which goes wider than a case for divorce.

The ultimate safeguard against perjury is scarcely relevant to some ways in which the court may be effectively deceived. There may be reckless or negligent conduct by a petitioner in allowing incorrect evidence to go through, although perhaps not through his own lips, and there are in the Bill certain time qualifications—six months plus or minus—which may offer scope for deception. It is quite clear that the Bill will enlarge the possibilities of deception if petitioners are so minded. The sponsors are still objecting to the Clause, and what worries me is that I can only suppose that they wish to see the divorce law made virtually so permissive that it will amount to little more than a formality.

In certain cases I could accept the doctrine of irretrievable breakdown, but I am unhappy about the unilateral Clause and could think in terms of accepting it only if the Bill contained every possible safeguard. Deliberately to reject a proposed safeguard which the Law Commission wanted and which the Solicitor-General in an earlier consideration of the Bill wanted is absolutely wrong.

May I conclude by referring to what was said by the hon. Member for York (Mr. Alexander W. Lyon) on whether a third interest in divorce is a public policy. This is an interest which requires to be and which should be supported by the new Clause. I ask the Solicitor-General to reconsider the alarming statements which he made. It is a strange doctrine to emanate from anyone in this House, and it is doubly strange that it should emanate from a Law Officer of the Crown speaking not in a personal capacity but for a neutral Government. The Government cannot have a neutral policy on lying. They cannot say at one stage in a long debate on a great subject that it is wrong to seek to deceive a court and then, after a certain decision by the House, change their view.

The Solicitor-General

The hon. Gentleman has got it quite wrong. Of course it is always wrong to lie to the court, and nobody has suggested to the contrary.

Mr. Hill

But the Solicitor-General is resisting an attempt to emphasise this principle in a Bill which many people will think permissive, and nothing can alter that. I hope that the House will insist on reviewing the record before coming to a decision on this.

Mr. Alldritt

I hesitate to intervene, but this is a highly dangerous doctrine. Like many right hon. and hon. Members, I, too, serve on the bench, and I think that we can give the lie to this doctrine of what happens in the courts. We know quite often that we are being lied to and being deceived, but there is little we can do about it unless the matter concerns earnings when an earnings certificate may be applied for. We may be told that the marriage has broken down and that it is irretrievable, and in the end we probably make a matrimonial order on the evidence which is before us, but it would be interesting to examine what happens after that order has been made. As a result of our probation service, marriage guidance counsellors and marriage guidance bureaux, I guess—although I do not know the actual figure—that reconciliations take place in about 20 per cent. of the cases—

Mr. Speaker

Order. The hon. Gentleman must come to the Amendment, even in the short time he has left.

Mr. Alldritt

At least 20 per cent.—

It being Four o'clock, the debate stood adjourned.

Debate to be resumed upon Monday next.