LAW REFORM (MISCELLANEOUS PROVISIONS) BILL (Hansard, 5 December 1969)

§ Mr. David Ensor (Bury and Radcliffe)
I beg to move, That the Bill be now read a Second time.
May I add my congratulations to the hon. Member for Manchester, Wythenshawe (Mr. Alfred Morris) for his courage and compassion in bringing forward his Bill.
I am not left with a great deal of time, but the Bill to which I am asking the House to give a Second Reading, although of some importance, is quite short. It will be agreed by both sides of the House that, for hundreds of years we have had in this country a great and remarkable system of justice. On the other hand, not until 1925 did the late Lord Birkenhead start to improve and reform the law of property.
During the course of this Parliament and the previous one, the Lord Chancellor set up a Law Commission to report on reforming the law on a variety of subjects, and the Bill is the outcome of three small matters. The Bill consists of three Clauses which embody recommendations contained in the Reports of the Law Commission laid before the House on 24th July, 1969, and 14th October, 1969.
Clause 1 makes an agreement to marry unenforceable at law, and provides that no action shall lie for breach of such agreement. This, in fact, abolishes actions for breach of promise. Such actions in the 17th century were entirely in the hands of the ecclesiastical courts but, as with divorce matters, they came into the civil courts.
The Law Commission's Report on breach of promise of marriage laid before this House on 14th October, 1969, said in paragraph 1 of the introduction: Under the heading of 'miscellaneous matters involving anomalies, obsolescent principles or archaic procedures' … we singled out a number of matters for examination on the ground that they seemed to rest upon social assumptions which are no longer valid. Among these are included an action for breach of promise of marriage. It then proceeds to go into the history. Those who, like myself, have practised 1936 in the law for many years have always felt that this was, and I use the word advisedly, a ridiculous form of action.
Unfortunately it was frequently used to blackmail young men who got themselves into some problems, and I entirely agree with Mr. Justice Scarman and the Law Commission that this action should no longer be enforceable in law.
Clauses 2 and 3 are incidental because they merely tie up the loose ends arising from the abolition of that form of action. Clause 2 deals with the problem of the Married Women's Property Act, 1882, and Clause 3 provides that: A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition … that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement. I would suggest that that is a perfectly reasonable proposition. If we do not have the action for breach of promise and an engagement is broken off, we must obviously have some clear provision for the return of presents and so on. Clause 5— — ——

§ Mr. John Page (Harrow, West)
I am an amateur at this. May I ask the hon. Gentleman's help? Is the return of an engagement present incumbent on the individual, whether or not he has broken off the engagement? One can refer to them as the breaker or the breakee. If Mr. Smith gives Miss Brown a ring and Mr. Smith breaks off the engagement— I am getting muddled—I would have thought that whoever breaks it off, if there is not a breach of promise action, then the other party should be entitled to retain the gift.

§ Mr. Ensor
This is a matter of opinion. The hon. Gentleman will see that the Clause says quite clearly: Where an agreement to marry is terminated, any rule of law relating to the rights of husbands and wives in relation to property in which either or both has or have a beneficial interest shall apply …". Obviously the intention is there. I hope that the House will give this Bill an opportunity to go into Committee when we can deal with such points in more detail.
Clause 5 abolishes the right to claim damages for enticement, seduction and harbouring of spouse or child. This 1937 again is a recommendation of the Law Commission on 24th July, 1969. It is obvious that this sort of action, although it does not technically and legally come within the divorce laws, is bound up with this sort of situation. In its wisdom the Law Commission felt—and I agree with it—that if we were to abandon actions for breach of promise of marriage, we ought to get rid of actions for Enticement, because they are really quite out of date.
We are getting to a situation nowadays where the sexes are becoming nearly equal. There are to be proposals for equal pay. A new divorce law is to come into operation very soon in which there is provision for divorce by mutual consent after three years and for a different situation to apply after five years. Actions of the kind to which I have referred are now completely out of date, and we ought to get rid of them.
I have left Clause 4 to last. It is on a slightly different basis, and it refers to claims for damages arising out of adultery. Under the new divorce law which is to come into operation shortly, it is clear that there is an entirely different situation. Paragraph 99 of Report No. 25 of the Law Commission which was laid before Parliament on 24th July, 1969, says: Under Section 41 of the Matrimonial Causes Act 1965 the husband, on a petition for divorce or judicial separation or for damages only, may be awarded damages against any person with whom the wife has committed adultery. Of the three main Clauses in the Bill, this is probably the one about which there may be some argument. I have had an opportunity to talk to right hon. and hon. Members about the Bill. There does not seem to be any difference of opinion about the first two Clauses, but there is doubt about this one. I accept that entirely, but I am asking this House to give my Bill a Second Reading so that we may have an opportunity to discuss this matter in Committee.
Ever since Lord Birkenhead's reform of the law of property in 1925, we have been trying to make further improvements in our law and bring it up to date. We are all aware of the problems facing us generally in the administration of justice, not only in criminal matters but in civil matters. In the circumstances, I 1938 hope that the House will approve of my Bill and give it a Second Reading.

§ The Joint Under-Secretary of State for Health and Social Security (Dr. John Dunwoody)
It may be of assistance to the House if I intervene at this stage to indicate the Government's attitude to the Bill.
I regret very much that my right hon. and learned Friend the Attorney-General has been prevented through illness from attending the debate. Had he been present, I know that he would have been very willing to assist the House on any legal technicalities which might arise. I am sure that the House will appreciate that, in his absence, I must decline to give such assistance. However, we are fortunate in having in the person of my hon. Friend the hon. Member for Bury and Radcliffe (Mr. Ensor) a promoter who has great experience of dealing with legal problems.
The Government see no objection to the Bill. Its proposals are among those of the Law Commision. If it is the wish of the House, the Government are prepared to see that the Bill makes progress and becomes law. It is for hon. Members to decide on the arguments that they have heard whether the Bill should receive a Second Reading.