HC Deb 22 January 1971 vol 809 cc1457-549

Order for Second Reading read.

11.10 a.m.

Mr. Robert Hughes (Aberdeen, North)

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

Before I move to the case for the Bill, perhaps I might comment on the fates which determine the luck of an hon. Member in the Ballot for Private Members' Bills. Many hon. Members have been in this House for a long time but have never been favoured with the fortune of being able to present such a Bill. Therefore, I accept that I am very lucky, as a new Member, to have obtained so high a position in the Ballot at such an early stage. None the less, I am conscious of the responsibility which is mine today.

In many ways, a Bill as important as this to the individual might well have been introduced by the Government. However, the traditions of this House have long determined that in matters of divorce law reform it is the responsibility of private Members to bring forward a Bill. I do so today.

As a result of the procedure of this House and the procedure of law-making, the law in Scotland on divorce will now be radically different from that in England and Wales. I appreciate that for many years past divorce law in Scotland was different from that in England and Wales. Indeed, divorce was recognised in Scotland at a time when it was not in England. Therefore, it is no part of my case that the law in Scotland should always be parallel with that of England.

At this point, there are serious anomalies as a result of the difference in law. As matters now stand, a husband in Scotland who is determined to obtain a divorce may come to England or Wales, establish his domicile, and then obtain a divorce under English law, whereas a Scottish wife may not do so since her domicile follows that of her husband and, as long as he remains in Scotland, she cannot change the position.

Mr. T. G. D. Galbraith (Glasgow, Hillhead)

Is the hon. Gentleman absolutely sure that that is so? Is it not the case that the English courts do not inquire too rigorously into the domicile of a petitioner? I should like the hon. Gentleman to deal with that point.

Mr. Hughes

I think that that is a different point. I am advised by my legal friends that this is the case. I shall be happy if the Lord Advocate or possibly my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Murray) cares to elaborate that point later in the debate.

I do not see this Bill as purely and simply a matter of legal tidiness and legal purity. It is intended to relieve human suffering. The case for the reform of Scots law stands on its own, irrespective of any differences in law between Scotland and England.

The present position on divorce in Scotland is that great personal hardship is caused to those whose marriages have broken down. In my view, the Bill is almost as much about marriage as it is about divorce. For that reason, I accept paragraph 35 of the Report of the Royal Commission on Marriage and Divorce (Cmnd. 9678), which says: The Western world has recognised that it is in the best interests of all concerned—the community, the parties to a marriage and their children—that marriage should be monogamous and that it should last for life. However, later in the same paragraph one finds: It has also always recognised that owing to human frailty, some marriages will not endure for life, and that in certain circum stances it is right that a spouse should be released from the obligations of marriage. We all know from personal experience of the lives of people that some marriages survive in conditions which make it surprising that they continue to exist. We must often marvel at the adaptability of human beings in circumstances that most would regard as intolerable. We also know from experience that marriages break down even though, to an outsider, good fortune would appear to smile on them.

I have in mind equally what is said in paragraph 120 of the Law Commission's Report on Reform of the Grounds of Divorce: The Field of Choice (Cmnd. 3123). It is repeated in the Report of the Scottish Law Commission on Divorce: The Grounds Considered (Cmnd. 3256), which says in paragraph 29: 'The objectives of a good divorce law should include (a) the support of marriages which have a chance of survival, and (b) the decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead.' We agree that the objectives stated are proper objectives of a good divorce law, and that they are not achieved by our law as it now stands. I believe that those passages that I have quoted are complementary and in no way in opposition to each other. It is precisely because I cherish the institution of marriage and the happiness that a good marriage can bring that I believe that it is necessary to have some change in the law.

A marriage which is no more than a legal fiction should be allowed to end decently and in the fairest possible way.

Mr. Galbraith

I apologise for interrupting the hon. Gentleman again, but he has just referred to a marriage which is a legal fiction. I think that I understand what he means. But I hope that he will deal with the children who might be perfectly happy in a marriage which is only a legal fiction. That is a matter to which he does not seem to be addressing his mind.

Mr. Hughes

No doubt the hon. Gentleman will have a chance later to elaborate his point. I shall not deal with it at the moment.

Mr. Galbraith

It is the hon. Gentleman's Bill.

Mr. Hughes

I will come later to what happens to the children of a marriage that breaks down. I think that we should allow marriages to end decently and in the fairest way. That is important.

If human society were static, perhaps matters could be allowed to remain as they are. If, after marriage difficulties and/or separation, people went into a kind of limbo quite separate from society, that might be the end of the matter. But human society is dynamic. People do not go off into total isolation. They come in contact with the community and begin to pick up the threads of life again. Often they form stable unions which are regarded as illicit. It is estimated that 40 per cent. of the illegitimate children born in Scotland are born of stable but illicit unions. To borrow the words of the Scottish Law Commission, I suggest that … it is in the best interests of all concerned—the community, the parties to a marriage and their children"—

Mr. W. H. K. Baker (Banff)

Will the hon. Gentleman give way?

Mr. Hughes

No. I know that a number of hon. Members wish to contribute to the debate. I have read in HANSARD that Mr. Speaker is often moved to say that interventions prolong speeches. I shall give way as reasonably as I can, but I think that I should move on, in the interests of progress.

As I have said, 40 per cent. of illegitimate children born in Scotland come from stable but illicit unions. For that reason alone, those living in such unions should be given an opportunity to legitimise their children. However, I am concerned with more than simply those who are at present living together. I know from experience that there are couples in our society who are not living together yet wish to marry but who are prevented because one of them is at present married and cannot obtain a divorce. I believe that they should have a chance of a happily married life. It is contrary to natural justice to allow a mistaken marriage to condemn people for all time from having another chance to find happiness in marriage.

I believe that the Bill will be greatly welcomed in Scotland. My mail on this topic has been overwhelmingly in support of it, and the letters have not all been from people who hope to benefit from its provisions. The Scottish Law Society has offered every assistance. The Scottish Law Commission has been very helpful with the drafting, and there is no doubt that Scottish legal opinion is in favour of change.

The Church of Scotland has looked at this Bill, and the Church's Social and Moral Welfare Board has studied it, and, strangely enough, it feels that the Bill does not go far enough. It feels that the Bill retains too much of the element of the accusatorial principle of the matrimonial offence, and it feels that the sole ground to be established in proof of the irretrievable breakdown of a marriage should be two years separation. However, the Church of Scotland is not hostile to the Bill and would welcome the opportunity, after Second Reading, to discuss the Bill in detail, and would hope to put forward constructive suggestions.

Now I turn to the Bill itself. Scottish Members, each of whom had copies of the draft Bill before its publication, will immediately have recognised that the Bill as published is really quite different from the draft which was sent out. In preparing the draft my supporters and I tried to take the views as outlined of the Scottish Law Commission which, broadly speaking, were that the matrimonial offence should be retained, and which thought two new Clauses should be added. However, all the replies which we received generally favoured moving to a position similar to that in England and Wales, and I understand that that is now the position of the Scottish Law Commission.

Clause I, therefore, establishes that the court may grant a decree of divorce only if it is established that the marriage has irretrievably broken down as provided in Clause 2.

Subsection (1)(a)(b) and (c) of Clause 2 is substantially the same as the grounds introduced by the Divorce (Scotland) Act, 1938, and I do not think there can be any controversy surrounding these proposals.

Clause 2(1)(d) allows divorce if there has been no cohabitation between the parties for a continuous period of two years immediately preceding the bringing of the action.

Some hon. Members may have objection to this, but I do not consider that the proposition can reasonably be opposed because 90 per cent. of the divorce actions in Scotland are at present undefended. I think it is wise to recognise that some of these divorces which are granted on the grounds of adultery are, strictly speaking, not within the spirit of the law. If both parties to a marriage agree that the marriage has irretrievably broken down and there is no prospect of the marriage continuing, then I think it is much more honest to allow them to say so, rather than that they should go through the degrading procedure of having to establish adultery as the ground for divorce.

Clause (2)(1)(e) allows the court to accept as proof of the irretrievable breakdown the fact that there has been no cohabitation between the parties at any time during a continuous period of five years immediately preceding the divorce action. This has been referred to as the "unilateral divorce Clause" which would allow a party who at present is termed the guilty party to obtain a divorce. It is this Clause which gives the most difficulty to those people who are opposed to the Bill, yet it is this Clause which, in my view, is the most necessary.

If the parties to a marriage have lived apart for five years there really can be no prospect of their coming together again, and it is the absence of such a provision today in Scottish law which causes the greatest personal hardship. Many people who have formed stable unions must have guilty feelings about living in adultery and this must put a strain on their relationships and must bring some fear into their lives that a second attempt to have a good family life may prove abortive.

The principles of Clauses 1and 2 are not new. They have been in existence, for example, in New Zealand for some long time, and, more recently, these principles have been accepted in the divorce law in Italy. In fact, these principles have been accepted by this House twice in the previous Parliament, and I trust they will be accepted today.

Mr. R. J. Maxwell-Hyslop (Tiverton)

Before the hon. Gentleman leaves the Clause I wonder if he would explain why it is necessary to include Clause 2(1)(c), that the defender has wilfully and without reasonable cause deserted the pursuer and also to have paragraph (d) which says that a ground for divorce may be that there has been no cohabitation for two years? Why import that concept of accusation and guilt rather than recognise that the parties have not cohabited for two years?

Mr. Hughes

These provisions have been carried forward. I would be happy in Committee to deal with this, and, if hon. Members feel it necessary, not to have both in the Bill. It is a matter of detail which we can sort out later. Again, I accepted the views of those legal friends of mine who thought it worth while and necessary to have this. I think it is substantially a point for Committee. I do not think it is a point of principle, and I hope we can deal with it at a later time.

I turn now to Clause 3, which establishes the exceptions to Clause 2, and in order to make progress I shall not dwell on them at the present time.

Clause 4 is an extremely important Clause in that it provides for continuation of efforts at reconciliation. I regard efforts at reconciliation as being absolutely essential, and I hope that every opportunity will be taken, if the Bill becomes law, to make quite certain that those efforts are continued where there is the slightest prospect of a marriage being allowed to continue. As I said earlier, this Bill, in many ways, is as much about marriage as it is about divorce, and where the slightest spark of life remains in a marriage then I hope we can take every effort to try to save it.

Now to turn briefly to Clause 9.

Mr. J. Bruce-Gardyne (South Angus)

Will the hon. Member allow me?

Mr. Hughes

I would rather move on if the hon. Member does not mind.

Mr. Bruce-Gardyne


Mr. Hughes

I am sorry—[HON. MEMBERS: "Give way."]—but I can not give way. I must move on.

Mr. Galbraith


Mr. Hughes

To deal briefly with Clause 9. With hindsight we have been able to accommodate a difficulty which, I understand, now arises in England and Wales over judicial separation. Judicial separation in England and Wales may still be obtained only on the ground of matrimonial offence. I am advised that it is better to have the same grounds for judicial separation as this would prevent legal problems.

Clause 10, which contains ten subsections, covers the financial provisions for spouses. When the Bill on divorce in England and Wales was going through the House it became evident that better financial provisions were needed, and the Government undertook to pass legislation to protect women who feared the results of divorce. As a result of that we now have in England and Wales the Matrimonial Proceedings and Property Act to supplement the Divorce Act, 1969. I believe that the detail of Clause 10 encompasses the main provisions of the Matrimonial Proceedings and Property Act, and this makes the Bill a much more comprehensive Measure. I regard it as of paramount importance to get these financial provisions for spouses exactly right. It would be intolerable to allow any party to a marriage to have a divorce with cavalier disregard of the financial position of the wife and children.

Mr. Ian MacArthur (Perth and East Perthshire)

I am obliged to the hon. Member for giving way. I am sure that he will understand that on Second Reading of a Bill of this nature, when a number of hon. Members, such as myself, are just now at the moment of decision how to vote, it is important, if I may say so, for an hon. Member proposing a Bill to give way, and I am very grateful to the hon. Member for giving way to allow me to clear up this point. This Clause is, to me, the point of personal decision, and I hope, therefore, that the hon. Member now, or his hon. and learned Friend, when he intervenes later, can inform the House in what respect this Clause would provide additional financial protection for the deserted spouse over and above such protection as exists in the law now.

Mr. Hughes

I think, to answer fairly briefly on this point, that the Clauses, as we have set them out, give a much wider discretion to the courts in regard to making certain that the orders of the courts are carried forward, and they make provisions about disposal of property, and I think these things are very important. I want to say this, that I would welcome in Committee the most far-reaching discussion of the details of this Clause, and my supporters and I will welcome Amendments where they may prove necessary to strengthen the financial provision for spouses.

It may be fair to spell out more clearly what should be the duties of the court. If an hon. Member is implacably opposed to the principles of the Bill, consideration of the detail will not allow him to support the Bill, but the hon. Member for Perth and East Perthshire (Mr. MacArthur) said that this question of detail was his point of decision, and I hope that hon. Members of much longer standing than I will not think it presumptuous of me to say that the proper course would be to give the Bill a Second Reading and if, after Committee and Report stages, they were still dissatisfied with the provisions, they could vote against the Bill on Third Reading.

The Bill has caused a great amount of interest, many hon. Members wish to speak, and I do not wish to stand in the way of their doing so—

Mr. MacArthur


Mr. Hughes

No, I cannot give way.

Mr. MacArthur

Will the hon. Gentleman give way?

Mr. Hughes

I have given way on several occasions and there will be ample opportunities for hon. Members to speak.

Clause 11 spells out the protection on property given to spouses, which is the point raised by the hon. Gentleman. The remainder of the Bill is supplemental and I do not propose to deal with it now.

Neither my supporters nor I claim that the Bill will solve every problem which arises as a consequence of a broken marriage, but we believe that the passage of the Bill into law would provide a significant contribution to the social wellbeing of the individual, and for this reason we ask the House to give it a Second Reading.

11.32 a.m.

Mr. R. J. Maxwell-Hyslop (Tiverton)

I make no apology for speaking in this debate, although it is on Scottish divorce, for three reasons. First, the Bill logically follows the reform of divorce law brought in for England and Wales which I wholeheartedly supported and on which we welcomed the assistance of Scottish Members. Secondly, the Church of Scotland took the trouble to send copies of its deliverance on the subject of marriage and divorce to hon. Members representing English and Welsh constituencies and not just to Scottish Members. Thirdly, the last attempt to reform Scottish divorce law foundered through lack of support from hon. Members representing English and Welsh constituencies. It is, therefore, advisable that those of us who wish to see the divorce law in Scotland reformed should take an active interest in it.

Sir John Gilmour (Fife, East)

Surely my hon. Friend has his facts wrong on that. In the last Parliament there was a Ten Minute Rule Bill which received a majority vote in the House but received only a minority of the Scottish Members' votes. That is what caused it to founder. It would appear to be the English Members who were seeking to reform Scottish divorce law.

Mr. Maxwell-Hyslop

Indeed, but a vote is a vote, whether from an English or a Scottish Member. Technically, my hon. Friend is correct, but if the Bill is to reach the Statute Book it will need the support of an absolute majority.

I should like to mention a number of detailed points so that the sponsors of the Bill may tell us their attitude to them. Although I am wholeheartedly in support of the Bill, there may be colleagues on either side of the House who are still in doubt whether or not to support it. Therefore, the more helpful the sponsors can be the more likely they are to receive a substantial majority on Second Reading, which is what I hope for.

It is entirely in line with the principle of the divorce law now obtaining in England and Wales that the doctrine of the matrimonial offence, and the practice of one party to a marriage accusing the other in open court of a matrimonial offence, should go. This has extremely unpleasant consequences on the children of the marriage who, sooner or later, become aware of the accusations which were thrown around the court by one parent against the other. It is in line with this philosophy that Clause 2(1)(c) should be deleted in Committee.

Mr. John Smith (Lanarkshire, North)

I think the hon. Gentleman misunderstands the purpose of having Clause 2(1)(c) and (d) in the same Bill. Clause 3(3) provides that where a pursuer takes all action under Clause 2(1)(d) that action can be defeated by the defender appearing in the process, so that that can be an end of it. That is why there is this difference between paragraphs (c) and (d); they are not a repetition of the same thing. There is a substantial difference here which the hon. Gentleman does not understand.

Mr. Maxwell-Hyslop

That may well be so, and this is why we are debating it. I am perfectly open to persuasion on this, but my reading did not make that point clear. If there is an overwhelming ground for having paragraph (c), it should remain. It is only occasionally that we tidy up the divorce law in either Kingdom, and I am anxious that we should not do violation to the principle of abolishing the concept of the matrimonial offence unless it is absolutely necessary to do so. A substantial body of opinion inside and outside the House would like to see the doctrine of the matrimonial offence dead and buried. If there are overwhelming grounds for keeping it in, then it is a necessary evil rather than a credit to the Bill.

Mr. Ronald King Murray (Edinburgh, Leith)

There is another factor which is relevant. I am not taking sides on the Bill, but in addition to the point raised by the hon. Member for Lanarkshire, North (Mr. John Smith), there is the point that breakdown of a marriage occurs at the time of desertion and there are consequential provisions, for example, for aliment for a wife who has been deserted which are immediate from the point of desertion. Such provisions do not apply under the two-year breakdown because there the point of breakdown starts at the end of two years. This is an important difference.

Mr. Maxwell-Hyslop

I am grateful for that elucidation. Because of the postal strike I have not been able to discuss as many points as I wanted to. I sent a copy of the Bill to a Scottish solicitor who has been practising for a quarter of a century in that country, but as I could not receive his written comments I had to discuss it with him over the telephone and did not have the opportunity of going into it in greater depth.

Strong representations have been made to me on Clause 10. The preliminary remark was that it had obviously been drafted by a barrister rather than by a solicitor; that is to say, it had not been drafted by one who had knowledge of the everyday problems of administering the law in Scotland.

The first point put to me with some force was on Clause 10(1)(c), which deals with an order varying the terms of any settlement. This can affect deeds of covenant made by people who are not parties to the marriage. The intentions of the person who is not a party to the marriage but who made that settlement can be frustrated without that person having a right of audience before the court. I am sure that this was not intended by those who drafted the Clause, but this is the sort of thing in which many solicitors are involved. A person with no children may make a settlement on behalf of a couple who are getting married. Since that is not initially the money of either of those two parties, it seems unjust that the intentions of that person should be subsequently frustrated without any right of audience of the person who made the settlement.

In Clause 10(2) we read: … including any provision made or to be made for any child. Manifestly, what is intended is that the provision should be for any child of either party to the marriage, because subsection (10) of the same Clause states: In this section, 'child' includes child of both parties to the marriage, child of one of the parties to the marriage and child of neither party to the marriage. In other words, it means any child, anywhere, who is in no way connected by marriage, birth, illegitimacy or in any other way with the parties to the marriage.

So here we have it laid down in bizarre manner that there are parties who can be affected by a court settlement, neither of whom has any right of audience before the court: in the first place, the party making the settlement and, in the second place, a child who is not in any way the issue of either party to the marriage. Bizarrely, neither of these has any right of audience before the court to secure his or her rights. That being so, it is represented to me that the Clause as drafted goes very much wider than is necessary to protect the matrimonial rights of the two parties whose marriage is being dissolved by the court, or their issues.

Mr. MacArthur

Perhaps I am being a little dense, but can my hon. Friend explain in what way the parties concerned are denied a legal hearing?

Mr. Maxwell-Hyslop

As I understand legal practice, a person cannot just arrive in court and say that he wants to address it. He can address a court only if he has a locus standi in that court, and he achieves that locus standi only if there is explicit provision for it. There are many cases in law where, for instance, a third party's reputation may be damaged in the course of proceedings but that third party has no right of audience at all before the court to protect that reputation.

Mr. John Smith

The hon. Member is perhaps being rather unnecessarily concerned about the provisions in Clause 10(1)(c). He might be interested to know that the paragraph is in identical terms with Section 26(1)(b) of the Succession (Scotland) Act, 1964, which regulates financial provisions following upon divorce. So it is not a noval form of words that is being introduced here, but a repetition of words already appearing in the existing law.

Mr. Maxwell-Hyslop

With great respect, this is one of the differences between lawyers and non-lawyers. To a non-lawyer, if something has disadvantages or is unjust that is a good reason for not doing it. To a lawyer, the fact that something foolish has been done before is a good reason for perpetrating it in a new Measure. This is one of the substantial differences of approach that I have often observed in this House between lawyers and non-lawyers.

I might add that the same applies to Governments. The fact that something foolish is consistent with previous legislation passed by the same Government is regularly offered to the House as a reason for doing it again, and to many of us it seems that the fact that something is obviously foolish, or has consequences which were not obvious when the original legislation was passed, is a reason for not doing it again rather than a reason for perpetrating it.

The hon. Gentleman's intervention brings out the thought that there may be good reason for amending the Act to which he refers, rather than perpetrating it again in a subsequent Measure. If we perpetrate it again on grounds of precedent, where do we stop? We go on bringing in irrelevancies or injustices merely on the ground that they have slipped through once. With respect, I do not find that a convincing argument.

I am sure that Clause 11 will create very great difficulties for solicitors in Scotland who are selling property on behalf of clients. It is necessary at the moment, when property is being sold, to establish whether the vendor is married, single or divorced so that the purchaser can know whether he is getting good title or whether the purported vendor may not have restrictions on his right of ownership or right to convey.

Clause 11 extends this need to a period of three years. It is not a question of what the position is at the moment, but whether in the last three years, retrospectively, any rights have been created. I am assured that this can present very real difficulties, because the purchaser will have to say to the vendor's solicitor? "Can you assure me that in the next three years there will not be any proceedings for divorce by your client or the other spouse?"

The Clause means that for a retrospective period of up to three years, the rights of the vendor, which were stated in good faith, can be upset. This provision can introduce the most extraordinary complexities; and also potential injustice to the purchaser who believes that he has acquired good title, and yet finds that title subsequently upset through events he had no means of discovering at the time, because neither party at that time knew that divorce might be contemplated in the future.

The proviso to subsection (2) of Clause 11 states: Provided that an order under this subsection shall not prejudice the rights (if any) in that property of any third party who has in good faith acquired it or any of it for value,… This is the protecting proviso against what I have mentioned, but I am advised that whereas the term "for value" would in England mean a valuable consideration of, say, just a shilling, in Scottish law it would be taken to mean fair value. It would therefore be necessary in every case for the vendor who is transferring good title which falls within the protection of that proviso to get a valuation of the property so that he can satisfy the purchaser that the price he is paying is fair value.

I mention these points, because although they are points of detail, and although they do not affect the object of the Bill, which I have enthusiastically in mind, they tarnish the Bill because they interfere with other people's rights in a manner which is entirely extraneous to the updating of divorce law, and which can make the normal commercial law of Scotland—for instance, the law relating to the transfer of property—unnecessarily unpredictable, or, as it was suggested to me, can make solicitors' lives much harder even though it may enrich barristers subsequently engaged in sorting it out. We should know the attitude of the sponsors to general points of this kind, so that those who are as yet undecided whether or not they can support the Bill can have a clearer forecast of what is likely to happen in Committee and on Report.

You will appreciate, Mr. Speaker, that it is particularly difficult for those of us who are not familiar, day to day, with Scottish law, to draft Amendments, so we are to a considerable extent dependent upon the good will of the sponsors of the Bill, who have at their disposal expert advice on Scottish law, and dependent, too, on an assurance that, if they give an undertaking that at a later stage, they will introduce Amendments to deal with such points they will, in fact, do so.

Mr. Robert Hughes

Perhaps I did not make it clear enough that in Committee, if the Bill gets there, my sponsors and I will welcome Amendments. We give an absolute assurance that if Amendments are brought forward to strengthen the Bill in terms of detail or in terms of making clearer some of its provisions, we will certainly look at them very sympathetically, although, obviously I cannot commit my sponsors or myself to accept every one. However, unless we get a Second Reading, there will not be a Committee stage.

Mr. Maxwell-Hyslop

I entirely accept that point but the point I was making was slightly different. The proper place in which to thresh out such points of detail is in Committee. Those of us who feel strongly about points of detail will find it difficult to draft Amendments in Committee because Scottish law is so different from English law, and many of us are not lawyers. We are more than usually dependent on a constructive approach by the sponsors of the Bill that they themselves, if possible, should draft Amendments to cover such points of detail so that they appear as unstarred Amendments in Committee.

I end as I began, by saying that I welcome the Bill. I do not feel that there is any merit in having as many discrepancies as possible between the Scottish and English law. There are some points in which Scottish law has many advantages over English law, for instance, in regard to the three possible verdicts in criminal proceedings, and in that respect I should like to see English law get closer to Scottish law. But in the matter of marriages which cross the Border—I declare an interest—and where populations move freely from Scotland to England and to Wales and Northern Ireland, the fewer discrepancies in family law, as one might call it, the better.

Therefore, I look forward to this Measure reaching the Statute Book in the course of this Session of Parliament, but I believe that in its drafting it has gone unecessarily wide on the points of detail I have indicated and creates, however, unwittingly, complexities for people in their normal lives, which I am sure the draftsmen did not intend, and creates injustices, including aspects of denial of audience before the court, where fairly radical parliamentary surgery will be needed at the Committee stage.

11.52 a.m.

Mr. William Small (Glasgow, Scotstoun)

We have noted the interest shown by the hon. Member for Tiverton (Mr. Maxwell-Hyslop) in this matter, and I am sure that the sponsors of the Bill will be looking to him for his support.

My hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes), who is the sponsor of the Bill, and I have travelled the road many times in terms of engineering profiles and we understand each other in that we can read blueprints and talk in thousandths and micro-measurements. But I do not share my hon. Friend's views on divorce technology. This does not make me in any way a reactionary. [AN HON. MEMBER: "Shame."] I do not see why there should be a cry of "Shame".

In terms of marriage, I look at life in this way. A person does not have any choice about when he comes into the world or when he goes out of it. The only matter in which one has any choice is in choosing a mate. The male has his interests and outlets in his work, whereas for the female marriage is the ideal and her home is her castle. Anything that weakens that approach in marriage is not in the community interest, and I do not welcome it.

I have had one letter from a lady in support of the Bill. The idea is often prevalent that this whole matter of marriage and divorce is so sordid, but the problem of the lady from whom I heard was that she did not get on with her spouse. She had no other paramour or any other ideas than interest in her own marriage. When things went wrong, her husband would not release her and she said in her letter than she was only waiting for a Bill such as this to release her.

What my hon. Friend and the sponsors of the Bill are no doubt seeking is harmonisation of the law of Scotland on divorce with that in England. This would mean that there would be a law parallel in effect with the Divorce Reform Act, 1969, in regard to people proving a case. But I challenge anybody to argue in terms of any benefits which have arisen out of the Divorce Reform Act. To take a long-term view, I should have thought that harmonisation with the French law in this respect might be more logical.

I will describe the situation 4s I have found it. We have heard a lot in the past few weeks about shop stewards, and as an ex-shop steward I have had to deal with family as well as industrial problems. Women have come to me with their marriage problems when a separation has begun or there is a family dispute—sometimes it may be an argument over a fish supper—and I have settled many such things in my time. The woman goes off to her mother and the difficulty starts all over again when her mother packs her off home.

It must be remembered that in landlord and tenant matters, and many other kinds of legislation with which one has to deal as a layman, the systems of law are different as between England and Scotland and therefore the style of dealing with those systems must be different.

Let me come to some of the points in the Bill. I should like to mention the situation in Australia and Canada. I have read a number of the judgments in those countries and they have certainly frightened me, and I am sure they have worried the lawyers in those countries who have had to deal with them. Therefore, we shall have to look hard to see what road we are on. I note that adultery is back in the Bill and I should like to ask whether there is to be any question of damages? Up to the present it has been possible to claim damages from an adulterer and I should like to know whether this will still be the situation.

I should like to turn to the matter of the irretrievable breakdown of marriage and the period of five years contained in Clause 2(1)(e). Subsection (2) says: … if the pursuer proves one or more of the following sets of facts". Certain action will follow. It is on those sets of facts that the judges in New Zealand, Canada and Australia are concerned mainly on the matter of proof and how one goes about it. I will be interested to discover how the matter of proof is to work in Scotland, because the idea is abroad that a period of five years will be part of a systematic operation and that one would only have to send a registered letter to the Clerk of the Court of Session and would not even need a lawyer. We have, of course, had great experience in drafting laws as between the two countries for many years, and certainly in the ecclesiastical law this whole system has been laid down by technicians in that subject. The drafting as between Scotland and England is entirely different in character.

It must be remembered that since the 1969 Divorce Act in England there is now in operation the Civil Evidence Act 1970, which is very relevant on the matter of proof. The Civil Evidence Act does not appear to be picked up in this Bill on the matter of proof and in the matter of any strict rules to be laid down. The legislation will abolish collusion, which is textbook collusion, but there could be difficulty in that matter as between the parties in a divorce. Then again under the Civil Evidence Act, 1970, hearsay evidence can be admitted before the court. It will also be possible to introduce the element of any previous criminal act, and the construction of rules in regard to proof when a couple have been separated for five years will be an interesting exercise.

My hon. Friend the Member for Aberdeen, North is fortunate in one respect. I introduced the First Offenders (Scotland) Act 1960, and I did not receive a letter either in favour or against that Measure from any lawyer in the whole of Scotland.

The draftsmanship of this Bill is very good but I do not enjoy the end product. The Court of Session is a very historical institution. According to the Daily Telegraph, the total production capacity is 150 divorces a week. The object of the legal luminaries in the Court of Session, when dealing with Acts of Parliament, is not to keep the lamp of civilisation alight. They are technocrats dealing with the law. What I want to know is, when a case comes before the Court of Session, where are the discretionary powers? The court gives a decree, but I do not know what the discretionary powers are. The members of that court are merely doing a job, and they send the case down to sheriff level; I am not sure whether one would call that a sort of second eleven. Their job under the Matrimonial Causes Act, the Matrimonial Proceedings and Property Act and all the rest is to secure support for the wife and family. This is why I say that the French are much more logical. In France, the court goes through this business from beginning to end and it is all covered by the one court.

I do a lot of "off peak" reading. I have read most of the lectures on changes in the law. I am just a layman, but I take an interest in the changes in our society. Part II of the Matrimonial Proceedings and Property Act is operable in Scotland. Somebody is sent along to pick up the alimony, and that is known as transferability. Part I does not apply in Scotland. There are many facets of the law relating to this matter which are interesting and worthy of study.

We ought not to pass legislation loosely. I remember the First Offenders (Scotland) Bill. In Scotland there was a company which was exploiting the population by the thousand, but in fact the first man who pleaded as a first offender under that legislation was charged with a driving offence. This sort of thing should be borne in mind. I used to smile when judges were dealing with cases involving conjugal rights. They merely issue a certificate ordering one of the parties to return to the spouse.

I congratulate my hon. Friend the Member for Aberdeen, North. I think he has done a good job in his presentation of the Bill, but he cannot count on my support in the Lobby. I wish that he had not been so quick in bringing in this Bill and that he would have waited until we have had a year or 18 months' experience of the operation of the English legislation.

12.5 p.m.

Mr. Hamish Gray (Ross and Cromarty)

I wish to participate in this debate for a number of reasons, the most important being that I do not wish to be a party to a change in the law in Scotland which is so largely based on a completely untried niece of legislation which is at present operating in England. Scottish law differs from English law in many ways, and I am sure that many hon. Members will be quick to point out many of the advantages which Scots law has over English law. I am, therefore, somewhat surprised that some hon. Members should be so anxious for Scotland to fall into line with this piece of English legislation which is so untried.

The present law in Scotland works with relatively little hardship. It is not unduly criticised by the public in Scotland. There is no great public demand for a change in the present divorce law in Scotland. This is obvious from the attendance in the Chamber today. The number of Scots Members of Parliament who have waited to participate today in this debate is surely evidence that there is no great demand in Scotland for this change. If Members of Parliament had received pressing demands from their constituents, that would be the most sure way of getting them into the Chamber for such a debate. The fact that so many Scots Members have not seen fit to wait and take part in this debate indicates that they have not been pressed by their constituents for a change in the law.

Mr. John Smith

Will not the hon. Gentleman accept that the average person never comes in contact with this sort of thing and is, therefore, likely to consider it on very few occasions? But is not the hon. Gentleman impressed by the fact that so many lawyers and legal societies in Scotland are anxious for this change because it reflects what their clients have told them?

Mr. Gray

I accept what the hon. Gentleman says, but I do not accept that that is conclusive in any way. I do not think it is any more impressive than the fact that so many Members are absent from the Chamber. I have received one letter on this subject, and it was from a constituent who did not want to see the law changed. I suggest that the reform is not urgently needed.

It is suggested in some quarters that if the Scots law is not reformed, a case will be made out for people to move to England and become domiciled here. I do not see this happening to any great extent. I do not see any Gretna in reverse. I suggest that Scotland would do very well to wait and see what will be the effect of the new law in England before rushing in to copy something which is largely untried.

The Bill makes divorce easier. I pay tribute to the hon. Member for Aberdeen, North (Mr. Robert Hughes) for the way in which he presented the Bill and the amount of work which he has unquestionably nut into its preparation, but I believe it will make divorce easier. A headline in the Glasgow Herald of 13th January states: Another bid for easier divorce law in Scotland. This is questionable, but it is the impression that is given. There may be a tendency for young persons to enter into matrimony without the same amount of thought which they should give to it, in the knowledge that if things do not work out as they hope, it will be that much easier for them to separate.

There has been a great increase in the number of divorces in the past few years. Since the war the numbers have more than trebled. We should be thinking in terms of making more funds available nationally for bodies like marriage guidance councils, and especialy pre-marriage guidance councils. The hon. Member for Aberdeen, North read a quotation that I was going to read. I shall refer to it, in any case. It is a quotation from the Scottish Law Commission referring to the need to encourage reconciliation. The Commission says: Something more could be achieved here though little is to be expected from conciliation procedures after divorce proceedings have been instituted. That is true, and it lends further support to my argument that as much as possible should be done in the early years to ensure that people have guidance in respect of marriages that are likely to go off the rails.

I agree that the irretrievable breakdown of a marriage should be the basis for divorce. At the same time, the complete removal of marital offences—they remain within the Bill, but their terms are completely different from those in the existing law—tends to give the impression of permissiveness, which is unfortunate. There is no question about it; it has an effect. It is not a bad thing for people to realise the seriousness of marital offence, and in my opinion it should be emphasised to a greater extent than it is.

Nevertheless, I agree that at all times we must try to adopt a humane attitude to marriages that have gone hopelessly wrong, and do what we can to sort them out. We must always legislate in a humane way, but we must remember that that humaneness must be extended to all the parties involved. Let us take the case of the spouse who does not wish to be divorced. Her husband has deserted her, and has set up an illicit union elsewhere. It has been suggested that such a situation is tragic, and that the issue of the illicit union will suffer. I do not deny that it is tragic, but it is also tragic for the spouse who has been left behind. She will suffer greatly.

Many people, for various reasons, do not wish to be a party to divorce. They may have religious reasons, which have not yet been referred to in the debate but which we should not forget. The deserted spouse may have a continuing hope of reconciliation. During the time that has elapsed since she was deserted the spouse may have suffered financial hardship, but she is nevertheless prepared to suffer it, in the hope that at some time in the future there will be some form of reconciliation.

Mr. Bruce-Gardyne

I am listening to this part of my hon. Friend's speech with great interest. Is my hon. Friend allowing sufficiently for the position of the children of the illicit union who, because of the religious scruples of the deserted wife, and through no fault of their own, may find themselves in a position of continuing illegitimacy? Is not the position of children of an illicit union a consideration to be taken into account?

Mr. Gray

I agree that such a situation causes a great deal of worry to anybody who seeks to prepare legislation along these lines. Hon. Members have gone to considerable pains to make sure that financial provision is made for these children, and that is to be welcomed. If the Bill goes into Committee, I am glad to know from the hon. Member for Aberdeen, North that he will be willing to consider the many Amendments that are bound to be put forward then.

I now turn to the question of financial provision. I am glad that it has been included on such a, wide basis in the Bill. My fear is that the Bill, as drafted, will do nothing to control the situation; in fact, I suggest that it will tend to increase the number of broken marriages, and encourage people to enter into divorce proceedings at an early stage without sufficient effort being made to achieve a reconciliation.

The hon. Member for Glasgow, Scotstoun (Mr. Small) made some practical points in the early part of his speech. He speaks from human experience in his dealings with people. His suggestions could be developed even more. I am sure that in many cases marriages could be saved by practical intervention at an early stage—preferably by marriage guidance counsellors, social workers and people of that sort.

The standards put before them make it difficult for young people to base their marriages on a sure foundation. The things that are broadcast on the mass media—especially television—do not always give them the right idea. The picture that is portrayed of permissive marriage—of marriage not being the serious matter that we all know it is—is certainly distracting to the young person. We must do all that we can to help encourage these young people to save their marriages. We are now contemplating a basic change in our law, and we should not do this without very serious consideration.

12.16 p.m.

Mr. John Smith (Lanarkshire, North)

I support the Bill. I congratulate my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes) on the com- prehensive speech that he made. He set out lucidly the main objectives of the Bill. I agree with most of what he said.

The controversial part of the Bill is the proposal that if there has been no cohabitation between the parties for five years a divorce may be granted. Some people may suggest—it was suggested in a moderate speech by the hon. Member for Ross and Cromarty (Mr. Gray)—that this might make divorce easier. There seems to be a certain amount of confusion of thought between the question of widening the grounds for divorce and the question of making divorce easier. We should consider these provisions as widening the grounds for divorce. The Bill brings into the ambit of the law of divorce a category not previously recognised.

Is there a strong social case for this change? I believe that there is. It becomes ridiculous for the law not to reflect social reality, and for it to continue to give legal status to unions which have long ceased to have any practical meaning to the only people involved—the husbands, the wives and the children. It is absurd that people should continue to be regarded by the law as married when, in reality, the marriage has long been dead and buried. In our divorce law we should try to achieve the objective of giving a dead marriage a decent burial, with a minimum of humiliation and bitterness—as was stated succinctly and properly by the Law Commission.

If we do not change the law and allow people to be divorced we shall encourage the birth of many more illegitimate children. I cannot believe that anyone with a sense of compassion would want to see a situation continue in which the children—the innocent victims of the situation—are stigmatised as illegitimate because their parents are not allowed to marry.

I cannot believe that the fabric of society or the foundations of marriage will be weakened by this provision. The foundation of marriage rests on many more important things than the law relating to divorce. Marriages are successful or unsuccessful whatever the law of divorce. I very much doubt whether there are people who say, "We will continue to live together and have a meaningful marriage because we have had regard to section No. So and So of the particular Divorce Act". If the marriage will work people stay together, and if it will not they just separate whatever the law may be.

We find constantly in cases of divorce that some time before the people choose to seek a remedy in the courts the marriage had ended by the simple expedient of one party going to live on his or her own or with another person. The social reality of the situation must be borne in mind when we try to fashion, as we should, a proper modern law for divorce. We have the impressive support of the Scottish Law Commission for the Measure. It is a body of great expertise that looked into the matter very carefully and had a large hand in drafting the provisions of the Bill.

From the social and legal points of view there is an overwhelming case for the Bill. I rest it very much on the basis that we should not have legal fictions about important human relationships and we should discourage the continuance of the unfortunate category of illegitimate children born of stable unions.

We all have an interest in making sure that the institution of marriage is protected and fostered by our society. It is not much of an institution if it is supported in its essentials only by the law of divorce. It must rest on much wider social grounds.

I quite understand that some people feel perfectly sincerely that the Measure might create an atmosphere of permissiveness, that it might give the impression that divorce was easy, with the result that people got into the frame of mind that marriage was not such a binding obligation as it had been. But I ask them to take a realistic view of the present position. On one side of the scale they must put their feelings and on the other the very practical consideration that the law has been changed in England roughly in the way in which the Bill suggests that it should be changed in Scotland. The result is that if the Bill does not become law people who are denied a divorce in Scotland, though it would have been possible under the Bill's provisions can go to England.

It is not possible for someone just to get on the train to England and raise an action in the courts there, but a man can seek to persuade an English court that he has acquired an English domicile. He would perhaps buy a property there or do something that indicated he intended to stay in England. He would require only to persuade the English court that he was residing in England and had taken a decision to make his permanent home there. Having looked at the decisions of English courts, many of us feel that they are likely to make a finding that a person is domiciled in England much more easily than a Scottish court would find that a person was domiciled in Scotland in a similar situation.

Sir Myer Galpern (Glasgow, Shettleston)

Is my hon. Friend suggesting that each time England changes its law and creates a new anomaly from the point of view of the application of Scottish law Scotland should follow suit? Can he tell us what we have suffered in Scotland because we have not applied the Act dealing with homosexuals which is now operating in England?

Mr. Smith

I shall not follow that red herring. I certainly would not accept that Scotland should always change when England changes. My argument is quite different. It is that those of us who represent the Scottish people here must accept that the law in England has changed substantially and, from the point of view of those who oppose the change, changed beyond repair. There is now in England a ground of divorce different from that which exists in Scotland. This is not just a technical area of the law.

People constantly inter-marry between England and Scotland, and the relationships between the two countries are very close. We must face the fact that it would be open to someone married in Scotland and living there to change his domicile so as to obtain in England a remedy that he was denied in Scotland. My hon. Friend the Member for Glasgow, Shettleston (Sir M. Galpern) may regard that with disfavour, but it can happen and I suggest that it will inevitably happen when people in Scotland wish to obtain a remedy which the law of England offers and the law of Scotland denies.

There is a fundamental inequity about this because of the rather old-fashioned view that the law takes about domicile. The law says that the domicile is that of the husband, so the husband by his own act can change the domicile, but the wife cannot. Therefore, a husband could go to England and obtain the release while a wife could not, because in most cases she is trapped by following the domicile of her husband. Those who think that they will stop change taking place by voting against the Bill are living in a world of unreality, because if the Bill does not become law the inevitable result will be a sort of Gretna Green traffic going to England to obtain remedies, at least at the hand of the husband.

That is a practical argument that may sway some people who had marginal doubts about the Bill and felt that the case for reform could be a little stronger. They may feel, having taken one view on a previous occasion, that the change in the law of England may justify their changing their minds this time.

Therefore, for social reasons, and I think good legal reasons, I argue for this change of principle. Added to that there is the practical argument of trying to avoid a ridiculous situation whereby people can use the difference between the law of England and the law of Scotland to obtain remedies in an unfair way as between men and women.

Many hon. Members who have doubts about the Bill are worried about the financial implications. The best argument they have is the position of the wife against whom an action is taken after non-cohabitation for five years. They say that the woman is deprived of certain financial rights. I understand their fears. But what has been done in the Bill is to try to give the widest possible discretion to the courts so that when a court decides to grant a divorce it will make a setlement that is fair and reasonable to the people who might be deprived of support as a result of the divorce. In Clause 10 a wide discretion is given to the court to make any provision it wants.

Mr. James Hamilton (Bothwell)

This is very important in relation to the amount of money that will be given to the divorcee and the woman the other divorced person marries. The court will award money. That will be all right if we are talking about millionaires, but when we are talking of the people whom my hon. Friend and I represent, where is the money to come from?

Mr. Smith

My hon. Friend raises an important point, but it is one which troubles the law now, because on the average wage of the people whom he and I represent it is not possible to keep two families. It is becoming increasingly difficult to keep one. People break up and go and live with other people whatever the state of the law, and very often someone must suffer. Suppose a man has five children by his wife, a not uncommon situation, and then lives with another woman and has another four children by her. He has a legal obligation to maintain all nine, but we know perfectly well that very few men can afford to maintain nine children.

That is the sort of situation which we cannot solve. Many women now suffer financially because their husbands leave them and they cannot find out where he is. Some terrible inequities arise from that. What should happen is that when a divorce is granted the court will have to be satisfied—as the Bill states—that the financial needs of the parties will be looked after, and it will have to make the best job it can in the circumstances.

Mr. Ian Campbell (Dunbartonshire, West)

May I take further my hon. Friend's illustration of the man whose wife has five children and who then has four more children by a second wife? The last words of Clause 10(2) read, "for any child". If that woman had five children before the man went to her, would that make it five, four and five, making it 14?

Mr. Smith

The word "child"—

Mr. Speaker

Order. I must ask the hon. Gentleman to address the Chair.

Mr. Smith

I apologise, Mr. Speaker. I turned away because I was answering my hon. Friend.

The word "child" is defined later in the Bill as having an extremely wide meaning. It would be up to the court to interpret that. Clause 10(10) defines "child" as the … child of both parties to the marriage, child of one of the parties to the marriage and child of neither party to the marriage. The court would look at the existing family unit, whoever the parents were. That would be the proper thing to do.

We have attempted to make the financial provisions as wide as possible. The position at the moment is regulated by the Succession (Scotland) Act, 1964, which allows the innocent party pursuer to ask for an order against the defender. Under this Bill, an order may be asked for by either party and may be made for either party. It will perhaps be agreed that the courts should be given the widest possible discretion in order to ensure that, in the break-up of a marriage, as little hardship as possible is caused to the parties being divorced. It may be that, in Committee, hon. Members will exercise their ingenuity to try to get even more concrete and definite provisions included in the Bill, perhaps the assignation of pension rights and so on. Certainly, such proposals would be looked at sympathetically by the sponsors.

I ask the House to give the Bill a Second Reading so that we can examine these matters in detail and have a full discussion about the financial provisions involved. It would be regrettable if hon. Members were influenced in this matter only by the question of the financial provisions and therefore voted against the principle of a change in the law which is advanced in the other provisions of the Bill.

The arguments in favour of the Bill are becoming well understood. I pause to make one observation on the state of the law in society. When people find that the law is not responding to social needs and social change, it brings respect for the law into disrepute. I think that people who find that the law does not reflect accurately the social conditions in which they find themselves perhaps reach the position of thinking that the law is some dead part of society, insensitive to the needs and obligations of the times. I think it is unfortunate if the law does reach that stage. This is why a degree of law reform is urgent and compelling. The Bill proposes both an urgent social reform and a necessary legal reform, and I hope that the House will think fit to give it a Second Reading.

12.34 p.m.

Sir Myer Galpern (Glasgow, Shettleston)

I congratulate my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes) on his moderate and lucid presentation of this controversial Bill. It has been lucid up to a point but I regret to say that, in relation to the most important and controversial Clause, to which my hon. Friend the Member for Lanarkshire, North (Mr. John Smith) also attempted to address himself, my hon. Friend the Member for Aberdeen, North had little to say on the question of the difference in the law between Scotland and England. All we are told today is that it would allow a recalcitrant defaulting husband the opportunity to remove his domicile from Scotland and take it up in England, and the poor wife—I presume, the guiltless party—would be denied a similar right to transfer her domicile.

Surely my hon. Friends know full well that if a man comes to England he will be subject to the English divorce law and unlike the proposal in this Bill—it is a reference which I understand is also included in some earlier Scottish divorce law—that court can refuse a decree of divorce in circumstances that it deems worth while. Is my hon. Friend the Member for Lanarkshire, North suggesting that, in a situation where a Scottish husband has transferred his domicile to England, an English judge in these circumstances and by that subterfuge would be prepared automatically to grant a divorce under English law?

Mr. John Smith

I would hesitate to attempt, and indeed could not do so, to predict what a judge would do in England in any circumstances. But I suggest that it would be very difficult for the judge to come to a conclusion that any such subterfuge was involved. How does one differentiate, for example, between the case of a man genuinely domiciled in England and a man domiciled in England as a subterfuge? We should have to give the court a remedy in any case where the judge finds that there has been subterfuge.

Sir M. Galpern

I am obliged to my hon. Friend but I think that there should be appearances by either spouse so that facts could emerge. I am sure that if I were a judge—and I think this applies to my hon. Friend as well—hearing such a case, and if such circumstances were firmly established, I would not be prepared to grant a divorce in that case.

We have been given this great argument that we must have a new divorce law in Scotland because there is a fundamental difference, and that the great benefit conferred upon the male spouse is one that we should consider as a solid reason for giving the Bill a Second Reading. My hon. Friend the Member for Aberdeen, North quoted the Royal Commission—and I agree with that passage—which said that marriage should be monogamous and for life. But he did not go on to tell us that the same Royal Commission said that it should be possible for one spouse unilaterally to dissolve the marriage against the wish of the other spouse. He could not tell us, because in fact the Royal Commission said nothing of that kind. Nor did the Royal Commission say that there should be the possibility of dissolution of the marriage after five years of desertion without consent.

The Royal Commission recognised that unfortunately human nature being such and mankind being frail, marriages do not always last for ever and therefore provision should be made for divorce. My hon. Friend told us something about the Scottish Law Commission. He referred to the controversial Clause that is the keynote of the Bill. This is the idea that the male or the female spouse should, after five years of desertion, be able to divorce the other spouse unilaterally with the minimum of embarrassment to the spouse who has probably been the guilty party, and with no consideration for any embarrassment of the future status of the individual who has committed no matrimonial offence. There would be the minimum embarrassment to the guilty party, apparently, who is to benefit for the first time in Scottish law for his own wrongdoing.

We all subscribe to the view that marriage must be cherished as an institution and that everyone ought to have a happy married life. Let us not forget that under this controversial Clause allowing unilateral divorce after five years' desertion, if the male spouse has gone to live with a woman—I will not refer to a blonde, because the right hon. Lady the Member for Chislehurst (Dame Patricia Hornsby-Smith) is present—his wife, the faithful and devoted woman who has maintained him all the years they were together and who has reared his family, will not be entitled to a happy married life. The individual for whom my hon. Friend the Member for Aberdeen, North is seeking a married life will already have been married and will have thought so little of marriage that he is getting divorced unilaterally to get married again. It is not as though by some legal instrument he has been prohibited from getting married. He will have experienced marriage and will be breaking up his marriage, and now it is pleaded that he should be allowed to enjoy a happy married life.

Our present Scottish divorce law has at least the merit of being based on the concept of the durability of marriage. We have to consider whether the Bill helps that concept. We all subscribe to the desire that marriage should be retained as an institution and that everybody should be able to live happily. Clause 2, however, has administered an appalling knock to society by loosening its most important kingpin, marriage.

We have been told of the growing number of divorces in Scotland. My hon. Friend the Member for Glasgow, Scotstoun (Mr. Small) mentioned this and so did the hon. Member for Ross and Cromarty (Mr. Gray). Divorces in Scotland have increased by 200 per cent. over the past nine years. Does that reflect harshness in our present divorce law? Will the Bill stop the rot of increasing dissolutions of marriage? It will lead, on the contrary, to a weakening of the marriage tie by making divorce easier, because it regards marriage as a temporary arrangement, despite the denials of its sponsors. It will encourage spouses to seek divorce as soon as a marriage enounters difficulty. In the U.S.A. the marriage tie has been weakened so effectively that there is now one divorce in every three marriages, and there is no evidence that that has necessarily improved the quality of married life in the United States.

I am sure that all hon. Members regard the stability of the family as invaluable, but the Bill introduces new dangers, for guiltless wives and a few husbands whose marriages would otherwise be secure with the law as it stands will find that their marriages, human frailty being what it is, will go under in the free for all.

A woman's approach to marriage is fundamentally different from that of a man. Women regard it as the ultimate achievement in life. A woman hopes to live, as in the fairly tale story, happily ever after. But the Bill will alter women's approach to marriage, and this is the big danger.

It is all very well saying, as we have been told, that if a marraige is dead, there is no point, apart from trying to resuscitate it, in pretending to keep it alive. Do not the sponsors recognise that if the Bill is passed, as I hope it will not be, and becomes known as the general pattern of divorce in Scotland, people who had no thought of divorcing will be able to do so by consent after two years. Those who had no intention of leaving a guiltless wife, knowing that after five years' desertion they will be able to get a divorce, will be harbouring ideas of doing so. They will get a new outlook. People could enter a marriage to try it for two years, not even communicating that thought to the other spouse.

Men will always have the idea that if they go off and their wife does not want to give them a divorce, they will be able to get one automatically on desertion after a five-year period. At present, the individual with whom a man has formed an illicit union knows full well that marriage is impossible and, therefore, when the Bill becomes law, there will be an immediate pressure on him to marry her. Who knows whether he ever had any intention of marrying her?

I am afraid that an ugly cynicism will grow, especially among the young people, particularly young women who are contemplating marriage. They will be afraid of what the future may hold for them. They will be harbouring these thoughts, whether they think them secretly or discuss them with premarriage guidance counsellors, or anyone else. They will still have the lurking feeling that perhaps the marriage will not turn out right, that they may be deserted and no longer have the status of a wife.

There has been a reference to the Church of Scotland and its support for the reform of the divorce law, and it has been rightly said that it regards the Bill as not going far enough. Let us consider what the Moderator of the Church of Scotland said the other day. I am amazed that there should be this conflict between the Church of Scotland and the Moderator of the Church of Scotland, but, speaking in Glasgow the other day, he said: There is a great deal of nonsense talked about the delights of permissiveness—ask any social worker, minister, teacher, or doctor. Permissiveness"— and this is what the Bill is doing, adding to, speeding, accelerating— brings broken homes and distorts personalities. It brings casual and shallow relationships which are degrading. Dr. Douglas, the Moderator, called for a "more positive Puritanism" from Christians and for the Church to go into action and to do more to combat the menace of the permissive society.

In view of that declaration of only a few days ago, I fail to reconcile the view of the Moderator with that of the Moral and Welfare Committee. I wonder whether if it was considering the problem today, the Moral and Welfare Commit tee would adhere to those views expressed in Edinburgh a year ago in a vote which was taken rather hurriedly.

I turn to the difference in the law in England and Scotland. I have already asked my hon. Friend the Member for Lanarkshire, North why we should always be dragged in certain matters at the coat tails of England. The hon. Member for Tiverton (Mr. Maxwell-Hyslop) said that he thought that there were many aspects of the Scottish law which were superior to the practices of the English law and he said that he would welcome an alignment of the English law with that of Scotland in the respects which he mentioned.

In its Annual Report, the Scottish Law Commission said: When the Act comes into force on 1st January there will be a deep and radical cleavage between the divorce laws of the two countries. So what? There is one newspaper, well known to my hon. Friend the Member for Fife, West (Mr. William Hamilton), which carried a banner headline the other day saying, "Watch out Scotland or you will be left behind". Left behind in what? Who wants to get on a bandwagon of this kind? What is wrong if we are left at the bus stop? At least we will be able to say that we are acting in a sane, reasonable and sensible fashion over our divorce laws.

Mr. William Hamilton (Fife, West)

My hon. Friend quoted the Scottish Law Commission. I wish that he would quote the rest of that paragraph where it said: If the experience of the years before 1938 is to be relied on the legal consequences of this"— that is to say, the difference in divorce law between England and Scotland— would be deplorable. It is not likely that the social consequences will be any happier. That is why we think it is important to have the law in parallel.

Sir M. Galpern

My hon. Friend has had enough experience to know about quoting pieces from Law Commissions. One only adduces evidence to make one's case. I could have read that bit but I did not want to detain the House too long. However, I disagree entirely with what my hon. Friend read out.

The Lord Advocate will probably intervene to explain about the differences in the law. I am not a lawyer, but I can see no valid reason why we should adduce an argument in favour of this divorce law simply because England has adopted it. What did the Daily Telegraph say in an editorial on 1st January of this year? It said: Two problems in particular will require judicial attention. First, the court is empowered to consider the interests of the children before granting a divorce. Since parents deliberately undertake an important responsibility when they bring children into the world, they should be obliged to discharge that responsibility to its fullest extent. No divorce should be granted unless the parents can satisfy the court that the children's interests will be advanced by it. There is no such argument here that the overall consideration should be the interests of the children. The Daily Telegraph went on to say: … applicants for a divorce on this ground (should) go through the full procedures for reconciliation. The whole tone of the article is to cast doubt upon the efficacy of the English divorce law.

The Act legalising homosexual practices between consenting adults in England does not apply to Scotland. Surely there is a good argument to say that people should not be forced to transfer their domicile to England in order to be free from prosecution in Scotland? That would be just as valid as arguing that the husband should not go to England. Great play is made in the Bill of the replacement of the matrimonial offences by the irretrievable breakdown of marriage. That is the only ground. The Bill does not use the word "sole" as does the English Measure. It says that a court may grant a decree of divorce: … but only if, it is established … that the marriage has broken down irretrievably. Does this formula avoid all the clashes between the warring spouses? It is recognised by those who sponsored the English Measure that all that will happen is that the warring will be transferred from one area of marital unhappiness to another and will become a financial dispute. There will still be the need to establish the provisions leading to the irretrievable breakdown of the marriage and there will be disagreements there between the parties about who was responsible for leading who.

In Clause 2(1)(d) there is the provision that there shall have been no cohabitation between the parties at any time during a continuous period of two years immediately preceding the bringing of the action. This is followed by a Clause which says that if there is an appearance then the decree will not be granted, but will I presume be granted after five years. It is not automatic, there must be dispute. All that we are doing, using this phrase "irretrievable breakdown of marriage", is sowing an idea in the minds of people. We are doing nothing to solve the disagreements or jealousies which arise in a marriage which has gone off the rails.

Clause 2(1)(e) lays down the provision that there must be no cohabitation between the parties at any time during a continous period of five years immediately preceding the bringing of the action. My hon. Friend the Member for Lanarkshire, North shed tears over the illegitimate offspring of a union.

Mr. John Smith

Do not we all?

Sir M. Galpern

Yes, but surely we should shed a few tears for the legitimate wife and her offspring. The whole concept is that we must not allow children born illegitimately to be subject to all the restrictions and anomalies. I agree. All I am saying is that there should be some consideration for the guiltless wife, let us shed tears for her and her children. What happens to her when the husband walks off, for no apparent reason except that he has been attracted by someone younger who, under this Measure, will know that she can force him to marry her after five years? Does my hon. Friend disagree about that? He says that it will be easy for a man to support two wives and nine of a family, but who will suffer? The woman who has possession of the husband on the Friday night is the one who will get the money.

It is all right saying that there are thousands of people chasing husbands to get alimony. We know that but we will add to it immeasurably through the Bill. What about the children, the whole concept of family life? The hon. Member for Ross and Cromarty (Mr. Gray) said that the woman who has been rejected always lives in hope. She is guiltless, striving, hoping that something will happen. And it does. If a man knows that he can go off and get married after five years' desertion it will not be in his mind to return, as it is now.

I am concerned to ensure that the legitimate wife and children receive first consideration. If we want to deal with the problem of illegitimacy as it affects the children of an illicit union, any move in that direction will have my support. However, the way to help them is not by altering the divorce law. Let us deal with them in a separate Bill to ensure that they receive the consideration denied to them at present. That would be the moral way of dealing with children born of illicit unions.

We should be concerned with the woman who has committed no crime, who has a young family to bring up and who will inevitably suffer financially. We have to bear in mind the fact that some men might take advantage of the proposed legislation twice in 10 years. A man might be married to his first wife for five years, obtain a divorce, marry the woman with whom he has been living and, after five years, do the same again, in which case it would require the judgment of Solomon to divide his weekly wage between his three wives.

The guiltless wife and her legitimate children will suffer if her husband leaves her to live with someone else and, after five years, obtains a divorce and marries the other woman. The legitimate wife is even denied a widow's pension. She entered marriage thinking that it would be for keeps. She has observed every aspect of integrity. She has brought up her family and maintained her relationship with her husband in the hope that it would be for keeps. If her husband then obtains a divorce in this way, she will be left high and dry unable to claim even a widow's pension. The taxpayer will be called upon to support her and her family. We have to ask ourselves whether it is just that a man who has committed wrong should be able to divorce his wife unilaterally and escape completely. He will never be caught, and the State will have to support his legitimate wife and children. One of the weaknesses of the Bill is the difficulty of making sure that a defaulting husband makes provision for his guiltless wife and family.

These are matters which my hon. Friends the Members for Aberdeen, North and Lanarkshire, North hope will be thrashed out in Committee. I have never listened to a Second Reading debate where so many aspects of a Bill were left to be thrashed out in Committee. A number of hon. Members will be extremely busy in that Committee. My hon. Friends concede that there are many weaknesses in the Bill and that it will be necessary to remedy them in Committee. When the English Divorce Bill was being considered in Committee, not one single Amendment was granted. It is no sop to say that under this or that heading we shall achieve a few Amendments here and there.

The Bill is weak. It has not looked at the whole position. About all that can be said for it is that the present state of the law creates difficulties between English and Scottish divorce. There has been no demand for a change from the people of Scotland. Obviously those who engage in these illicit unions and men who desert their wives will always be more vociferous in favour of such a change than those living normal lives who do not want it. In my view, we should leave the law alone. It has operated adequately over the centuries.

The change in the English divorce law came into effect on 1st January. It had to be delayed for a year because of a number of outstanding difficulties about the disposal of property and so on. It was recognised at the end of the day that court orders would not be made to the extent required. Let us see how the English law unfolds. There is no hurry. It is said that, if this Bill is passed, it will come into force a month afterwards. At least the English had the good sense to wait a year.

When a similar Bill was presented early last year, it was carried by the votes of Members of the whole House. However, an analysis showed that the majority of Scottish Members were against it. If there is a vote today, I hope that the result will be the same, because I feel that that is a reflection of the attitude of Scottish Members. The majority are against the Bill. If we want to settle the matter not on the basis of Scottish law lagging behind English law but on that of discovering whether the Scottish law requires amendment, I suggest that it should be debated in the Scottish Grand Committee, where only Scottish Members vote. In that way, we could get a true reflection of Scottish opinion. If it comes to a Division today, it may be carried by English votes. Deciding the matter in the Scottish Grand Committee would be more acceptable to people in Scotland.

Notice taken that 40 Members were not present;

House counted, and, 40 Members being present

1.9 p.m.

Sir M. Galpern

The sudden influx of English Members bears out the point of view that I have just been expressing. This matter affecting only Scotland will be carried not by Scottish votes but by English votes.

Mr. Robert Hughes

On a point of order. My hon. Friend has far more experience than I, and he knows that it is technically impossible because of the number of Scottish Members—

Mr. Deputy Speaker (Miss Harvie Anderson)

Order. The Chair is at a considerable disadvantage if the hon. Member for Aberdeen, North (Mr. Robert Hughes) turns his back upon the Chair.

Mr. Hughes

I apologise. I was simply making the point that there are only 71 Scottish Members and that it is necessary for English Members to assist us.

Mr. Deputy Speaker

The hon. Member knows quite well that that is not a point of order.

Sir M. Galpern

And 71 is greater than 40 and

Mr. Sydney Bidwell (Southall)

On a point of order. The House should be aware that we Englishmen deeply resent any inference that we are not competent to make judgments in matters which affect the Scottish people, and that we have a generous

Mr. Deputy Speaker

Order. The hon. Member knows very well that that is not a point of order.

Sir M. Galpern

I think that I had better conclude, because we are likely to get into an argument about Scottish nationalism and Scottish revolution.

What I put to the House this afternoon is that when it comes to a vote we should reject outright this attempt to interfere with the existing Scottish divorce law because, first of all, there has been no demand for such an alteration in the law, and secondly, there has been satisfaction expressed with the existing law. The Law Society, which is anxious to have this change, because of the differences between the law in Scotland and the law in England, does not represent the Scottish people.

1.11 p.m.

Sir John Gilmour (Fife, East)

The hon. Member for Glasgow, Shettleston (Sir M. Galpern) made a powerful speech in favour of maintaining the status quo and taking no action. With many of the sentiments which he has expressed on marriage, I agree, but, on the other hand, we are considering legislation to take account of matters for a considerable number of years ahead. I think, there fore, that we have got to try to see, since we have already a law of divorce, that we have the most efficient, humane law which is possible on divorce. We must take into account the mood of the generation who are getting married at this time and what their views are likely to be.

I think, too, that the hon. Gentleman treated the Church of Scotland a little unfairly. If I heard him aright, he said that it had had rather hurried consideration of this matter in the General Assembly. In fact, the paper which the General Assembly sent out, the paper which the Church of Scotland sent me, showed that this was before the General Assembly in 1968 and in 1969, and it says: In 1968 the General Assembly received the Committee's Report on Divorce Law Reform but decided to reserve judgment and to send the Statement to Presbyteries for study and comment, replies to be received by 31st December, 1968. So that there is no doubt that the Church did not go into this in a great hurry. The matter came up at the Assembly in 1968. It then, at the conclusion of the General Assembly, set out to do what we would have liked it to do—to get the views of all the presbyteries in Scotland. We know what happened in that respect: 58 out of 60 home presbyteries made the returns; eight were in favour of no change in the existing law; 36 accepted the principle of breakdown as the sole ground for divorce as proposed by the Committee; eight wanted the addition of separation to the present grounds; and six were ixie pixie about what should or should not be done. So I think there is no truth in what the hon. Gentleman said about the Church of Scotland considering this in a hurry. The very widest opportunity was given to presbyteries throughout Scotland to express their views on this matter. I think it right, in considering this, that we should take into account what the presbyteries in Scotland did say.

Sir M. Galpern

It makes it all the more amazing to me, then, that only about a week ago the present Moderator of the Church of Scotland expressed the views which I have read out to the House this afternoon.

Sir J. Gilmour

Indeed, I agree with the hon. Gentleman that we can have sentiments and believe, as I do, in the sanctity of marriage. We can say that when we become Members of this honourable House we sometimes feel that we put our marriages in jeopardy because we have to desert our wives for four or five days a week. No matter what our sentiments are, I still feel that what we as legislators in this House have to consider is what are the likely effects of not altering the law on divorce.

I take the point which the hon. Member for Shettleston made and also the hon. Member for Lanarkshire, North (Mr. John Smith), and it came to this: what will happen if we make no alteration in the law on divorce in Scotland when it is certainly possible for the male to change his domicile and to come to live in England so that he may obtain a divorce and that what is really being said is that those people with plenty of means can obtain divorce whereas those people without means cannot?

Unfortunately, as I think was pointed out by the hon. Member for Shettleston, this is the case throughout the grounds for divorce, that those people who have means can afford to support two families; those people who have not got the means cannot afford to support two families; and how do we get over this difficulty?

Mr. James Hamilton

Can the hon. Gentleman explain to us how we shall overcome this difficulty if this Bill goes on to the Statute Book? He is making a great deal of play about people with money, who are thus able to get divorce easily, and can maintain two families. If this Bill goes on to the Statute Book the divorced man will have responsibility for his first wife and family and for his new wife and family. How does he overcome that?

Sir J. Gilmour

If I may, I will perhaps come to that a little later, but what I should like to get cleared up—and this can possibly be answered by my right hon. and learned Friend the Lord Advocate if he intervenes—is this case as stated by, I think, two hon. Members, that it is only the male who can change his domicile, and not the female, and so get a divorce.

As I understand it, there seems to be a double-headed approach by the State to this. For instance, I believe that if a lady in Scotland becomes a member of the Government and therefore has to be domiciled in London, she is so domiciled for taxation purposes. Or suppose a Scottish Lady Member of Parliament had to become Prime Minister of this country and were therefore domiciled in 10, Downing Street, and were to seek a divorce. What happens? Is she precluded from doing so? Does the State say that she does not live at No. 10, Downing Street but lives at No. 2 what ever-it-is road in whatever town it is she sits for in Parliament? What happens to that hon. Lady? I find this an interesting problem and I should like my right hon. and learned Friend to answer.

Mr. John Wells (Maidstone)

This is not only a problem in relation to divorce. It is a great unfairness for Scotswomen in all legal matters and my right hon. and learned Friend should look at this from the wider legal point of view of Scotswomen, quite apart from divorce. I do not agree with my hon. Friend's attitude to this Bill. I agree with the hon. Member for Glasgow, Shettleston (Sir M. Galpern). But let us look at this as a legal problem and not just within the confines of the Bill.

Sir J. Gilmour

I thank my hon. Friend, but there is also something in what the hon. Member for Shettleston said, that the change in the divorce law in England has taken effect only from 1st January of this year. Unfortunately I did not hear all of what was said, but when I turned on my radio one morning this week I heard—I think it was—the hon. Member for Pontypool (Mr. Abse) being interviewed and complaining that he had grounds for thinking that the changed law on divorce in England was not working in the way in which he thought it was going to work. If this is so, then I think that the hon. Member for Aberdeen, North (Mr. Robert Hughes) should hold his horses, because there is little point in passing a Bill to change the law in Scotland if those who changed the law in England have already found that it is not doing what they had intended. It is quite easy for hon. Members of this House to come here and propose legislation, only to find, when the time comes for the new law to be applied, that it does not, in fact, do exactly what they thought it would do. For that reason there is a good case for deferring a change in the Scottish law.

We shall never have the right attitude towards the sanctity of marriage if we do not regard marriage as a partnership. The breakdown of a marriage is almost certain to have been caused by mistakes on both sides. The concept of matrimonial offences introduces the "guilty party" in legal terms, but the guilty party in law may not have been responsible for the breakdown of the marriage. It would be a mistake to change the law when we have had expressions of opinion that the changes in the English law are not working to the effect that was intended. If we are to make a change, it would be better to make the radical change of taking out altogether the matrimonial offence.

Although it may be said that lawyers have a vested interest in divorce because they make money out of it and one should take what they say about it with a pinch of salt, one cannot say this of the Church. If the law of the land were more in line with the thinking of the Church, perhaps the number of divorces would be reduced. We all know the words in the marriage ceremony: "with all my worldly goods I thee endow". If, as a result of those words, half a man's property passed to his wife, not so many men would be so happy about divorce.

The Social and Moral Welfare Board of the Church of Scotland said in its proposal: We are unanimously agreed that divorce should now be granted on the ground of breakdown of marriage as against the need to prove certain matrimonial offences. Matrimonial offences are often the outcome rather than the cause of a deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offence, increase bitterness, and widen the rift that is already there. If a single act of adultery is a ground for divorce, the likelihood of a single act of adultery being understood and forgiven is lessened and the likelihood of divorce increased. The object of our legislation should be to preserve the marriage contract and to make it easier for that contract to be maintained and for reconciliation to take place.

The sponsors of the Bill say that changes in the Bill may be made in Committee, but this is too indefinite. The Bill should contain a definite principle, and, in the absence of such a principle, I shall not be able to support it.

Judicial separations are dealt with by Clauses 5 and 9. Clause 9 applies all the provisions of Clauses 2 to 4 to actions of judicial separation and, therefore, the arguments applied to Clauses 2 and 3 apply to the grounds of separation given in Clause 9. Does this mean that the husband of a wife who has obtained a judicial separation on the ground of her husband's adultery can, after five years, automatically apply for a divorce? The wife, who has been living apart from him for five years, may not want a divorce. Perhaps we could have an explanation of this either from the sponsors of the Bill or from those who are better legally qualified than I am.

Clause 10(2) introduces a new concept, that the court in making a financial order shall have regard to the: needs, obligations, responsibilities and conduct of the parties to the marriage …". The court should have regard to the outside obligations of either party, although it is arguable that this is covered by "all the circumstances of the case".

We need to look carefully at the Bill because it seeks to bring the law in Scotland into line with the law in England. Any alteration in the divorce law in Scot land should take account of the conditions in Scotland and of the advice of people who have studied this matter. Before finally making up my mind which way to vote, I shall wait to hear further arguments. Since it has been said that the changes in the English law are not working satisfactorily, the wisest course would be to defer making changes in the Scottish law.

1.28 p.m.

Mr. Bruce Millan (Glasgow, Craigton)

The hon. Member for Fife, East (Sir J. Gilmour) has made an interesting speech and I hope to take up one or two of his points later. On his last point, I think that it is a bit premature to say that the new law in England is not working satisfactorily. It came into operation only on 1st January this year and it is much too near to judge how effective it will be.

Sir J. Gilmour

I agree that it seems so, but I was disturbed by what was said by the hon. Member for Pontypool (Mr. Abse) on the radio a few days ago. Had I not heard him on the radio, I should not have known anything about this.

Mr. Millan

Whatever my hon. Friend may have said on the radio, or elsewhere, I still take the view that it is much too early to judge the effectiveness of a law in England which was changed only two or three weeks ago.

I fully support the Bill, and I congratulate my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes) on bringing it forward. I support it principally because the bits that are the most controversial—the two new grounds for divorce contained in paragraphs (d) and (e) of Clause 2(1)—represent a very welcome moving away from the concept of the matrimonial offence. The Bill does not abolish that concept completely, for reasons which I accept as against those adduced by the Church of Scotland, to which I shall refer a little later.

Everyone who looks at the present state of our divorce law must agree that in very many cases the concept of the matrimonial offence completely fails to match the realities of the relationship between the man and the woman involved. As far as the Bill represents a movement away from that concept, I support it as being much more realistic and humane.

The hon. Member for Ross and Cromarty (Mr. Gray), in what I thought was a very reasonable criticism of the Bill attacked it on the basis that it would make divorce more likely or more frequent. He said that under the present divorce law there can be circumstances in which a marriage will continue, and perhaps even continue in some reasonable degree of happiness, but which would lead to divorce if it were known that separation for two years or for five years was ground for divorce. He held that more spouses would in that case desert each other than are likely to at the moment.

It is only realistic and fair to say that there must be a certain number of cases, one cannot give a figure, where that will happen if the Bill becomes an Act of Parliament, as I very much hope it will. But it is our own experience that the state of the law, and in particular a change of the law in respect of desertion, will in the vast majority of cases make very little difference to the final decision, because it is the actual domestic circumstances rather than the provisions of the divorce legislation which will determine whether desertion or break-up takes place. Therefore, although I myself concede that a certain number of marriages which would otherwise continue will break up if the Bill is passed, I believe that the number is likely to be very small.

One must weigh that consideration against the very much more powerful consideration, already mentioned, that the absence of such provisions as these prevents marriages which are already broken up from being finally ended by divorce, and thereby prevents one or other of the parties to the marriage from legitimising their relationship with another partner and, in particular, legitimising the children of such a partnership. If, as is said, perhaps 40 per cent. of illegitimate children are the children of these so-called illicit unions, and if the Bill's provisions will help to make the chances of legitimacy for such a very large number of children a good deal better than they are now, that consideration seems to stand overwhelmingly against the argument advanced by the hon. Member for Ross and Cromarty, supported by my hon. Friend the Member for Shettleston (Sir M. Galpern).

To say that is not in any way to show a lack of sympathy for, say, the deserted wife. I can well understand that a deserted wife, even after five years of separaton, may feel very bitterly towards her husband and be very reluctant to allow him a divorce. That bitterness may be very understandable, but I do not believe that the divorce law can be operated on the basis of bitterness on the part of one partner towards the other. However understandable that bitterness or resentment may be, it very often now turns merely to spite and malice. There is no public interest and no human interest served in preventing a divorce in such circumstances.

More than that, it has often seemed to me that in cases where a deserted wife is unwilling, because of her bitterness, to allow her husband a divorce, the sufferer is very often the wife herself. It would be very much more in her own interests to agree to a divorce so that she could, if she wished, start life anew, perhaps marry again, and so live free from the constant bitter memory of the first marriage. Many women, however understand able their resentment may be, blight their own lives as well as those of their husbands by not agreeing to a divorce. Bearing that aspect in mind, the kind of change proposed by the Bill has everything to commend it.

Mention has been made of the humiliation and loss of status of the deserted spouse—and the loss of status, in particular, of the deserted wife. However, we are dealing with circumstances of a separation of two or five years, during which time the deserted wife has already drunk very deeply from the cup of humiliation and bitterness. The humiliation, the lack of status, start at the point of desertion. No matter whether the period be two years or five, the lack of status, if that is how the woman looks at it, has already occurred, and unfortunately there is very little that the community, or any member of the community, however sympathetic it may feel towards the person concerned, can do.

Sir M. Galpern

Can my hon. Friend tell the House how the fact that the woman agrees to divorce will make less bitter her cup of sorrow if she is left with four of a family, cannot go to work and has no means of financial support?

Mr. Millan

I said that the Bill would not increase the bitterness. I do not for one moment pretend that under our system divorce does not lead to a considerable amount of bitterness, and perhaps of humiliation. The Scottish Law Commission said in its study that it is idealistic and unrealistic to think that we can get a divorce law which will be equally fair to all parties, and will not cause humiliation, bitterness and sadness to any party. To say otherwise is to be completely unrealistic. We have to try to get a divorce law which in all circumstances operates humanely and reasonably and, where a marriage has to have an end put to it, does so with the minimum of bitterness and humiliation. For the reasons I have given I believe that these provisions represent a very considerable step forward in that direction.

It has been pointed out that one of the incidental, perhaps one of the main, effects of the Bill will be to bring the law of Scotland into line with that of England. I do not want to go over the matter in detail, but it seems to be an important consideration for practical and not just for legal reasons.

We know very well that a common occurrence in Scotland when a husband deserts his wife is for him to move to England. He often does this for a variety of reasons so that his wife will no longer be able to trace him or to avoid court orders about alimony. One resents this very much indeed and has little respect for husbands who move to England for this reason. In some cases the man may move to England for legitimate reasons, but whatever the reasons may be the fact is that considerable numbers of men who desert their wives move to England.

The fact is that if the law is not in parallel on both sides of the border that husband, however unreasonable he may be in his behaviour, will be placed in a better position regarding his wife than the law places him in at present. This is something that none of us would like to see happen.

Sir J. Gilmour

The point could be overcome by an alteration in the law of domicile, not in the law of divorce. Therefore, it is not an argument that proves the case.

Mr. Millan

There is something in that point. I am not a lawyer, but I understand that the law of domicile is a difficult branch of the law. We have before us at the moment a Bill dealing with divorce rather than a Bill dealing with domicile, but I agree that that matter could also be looked at.

It has also been said this morning that the Scottish Law Commission is in favour of this kind of Bill. This is important, because anybody reading the document of the Commission will be struck by two things. First of all, the confidence with which the arguments are marshalled in that document; and, secondly, the fact that the people responsible for preparing it have considerable experience of how the divorce law in Scotland works at present. Although I personally would not be willing for these matters to be guided simply by lawyers, we must take account of the particular experience of lawyers in this matter since their own experience leads them to see the inadequacies in the present law.

One has a similar respect, for different reasons, for the view of the Church of Scotland in matters of this sort—not just because it can bring to bear a particular moral viewpoint, thought that is obviously the most important consideration, but also because the ordinary parish minister in his parochial work has considerable experience of the consequences of broken or unhappy marriages. As the hon. Member for Fife, East (Sir J. Gilmour) has said, the Church of Scotland took this business so seriously that it asked individual presbyteries to give their advice on this matter. It is striking that the views of the Church of Scotland should be very much in support of a Measure such as that introduced by my hon. Friend this morning. In fact the Church of Scotland went even further because it wanted to have the concept of the matrimonial offence removed altogether and the sole ground for divorce to be the irretrievable breakdown of the marriage.

As I read the Church of Scotland document, irretrievable breakdown in their view would have been proved by a two-year separation and not, as is the case in this Bill where one party is against divorce, by a five-year period. Therefore, apart from getting rid of the matrimonial offence, the Church of Scotland would have gone to the length of saying that after a two-year separation there could be divorce by one part of the marriage, even against the opposition of the second partner. I consider that is going too far. That would be going against a large section of public opinion in Scotland and I feel it would be undesirable.

I have an open mind about the five years and personally would have supported a shorter period than five years, but to reduce it to two years would be going too far in the present state of public opinion. However it is interesting that that should be the view of the Church of Scotland on this matter and not even my hon. Friend the Member for Shettleston would charge the Church of Scotland with being a great protagonist for the permissive society.

We know that there are people who, for religious reasons in particular, and perhaps for other conscientious reasons, are against divorce altogether. I am not sure whether my hon. Friend falls into that category, but it is certainly the case that the Roman Catholic Church and Roman Catholics are against divorce in principle. I respect that view. I happen not to agree with it at all. It seems to me that Roman Catholics and those who have these conscientious objections to divorce must accept that the majority of people in this country believe that there ought to be some kind of provision for divorce. The divorce law goes back to the early years of the Reformation. Indeed, it was one of the first things that happened in social and domestic law in Scotland. Therefore, if there is to be a divorce law, there is everything to be said for it being reasonable and humane rather than unreasonable and inhumane. I do not see how the Roman Catholic Church and individual Roman Catholics should, whether for moral, religious or any other kind of interest, support an unreasonable and inhumane divorce law as against a reasonable and humane one.

Mr. James Hamilton

As a Roman Catholic myself I would agree with what my hon. Friend has said, but surely he will not deny the right of Roman Catholics to express themselves on any moral matters concerning the country and on the basis to attempt to try to convince people.

Mr. Millan

Of course I would not deny them that right. Indeed it would be most useful if we had the Roman Catholic viewpoint expressed during the proceedings on the Bill. I would be delighted if that were to happen. I would not wish to try to curb expression of that opinion, but equally my hon. Friend the Member for Bothwell (Mr. James Hamilton) would not wish to curb my expression of opinion in this matter. I repeat that I see no advantage for those who are fundamentally opposed to divorce—and this applies to any other member of the community with views on this matter—to wish to see an unreasonable and inhumane divorce law as against a reasonable and humane one.

Mr. Frank McElhone (Glasgow, Gorbals)

My hon. Friend is touching a very sensitive issue. I must say that if I catch the eye of the Chair in this debate I shall not be speaking from a purely Roman Catholic view. There are only four Roman Catholic Members out of some 71 Scottish Members, and I think my hon. Friend is alluding to the fact that we should not make pronouncements in this debate. I am sure he would agree that we have a minority interest.

Mr. Millan

I do not think anything I have said should be taken to suggest that I am unwilling that the Roman Catholic or any other point of view should be expressed in this debate. It is the very opposite. I hope very much that that point of view is expressed.

I happen to have a very large number of Roman Catholic constituents and I think they are entitled to know my views on divorce or on anything else. I have certainly never hidden my views from them. I would not suggest that they should not let their views be known to me.

There are two other points I should like to make. First of all, I would refer to the question of children in a marriage which has broken down or which is likely to break down. This is most important. We must face the fact that when a marriage has broken down, whether we like it or not, damage is done to the children. It is not possible to have a divorce law without some provision in regard to damage to the interests of children.

The only thing that I would say here is that the new grounds for divorce introduced in this Bill seem to me to do no damage at all to children which is not already done under the existing law. We are here dealing with a situation in which husband and wife have been separated for either two years or five years. In those circumstances, damage is done to the children. There may be cases where the desertion of the husband or of the wife is in the interests of the children, but my view is that in the majority of cases, however unhappy a marriage may have been, on the whole it is better from the point of view of the children for the partners to stay together.

We are dealing here with a specific situation where that has not happened, where the partners have split up for two years or five years, and therefore the damage to the children has already been done. Therefore, nothing in this Bill will put the children of the marriage in a worse position than at the present time. That is the essential point to bear in mind when dealing with the new grounds for divorce in this Bill.

Mr. Galbraith

I thought the hon. Gentleman said in an earlier part of his speech that this Bill might well encourage couples not to continue with a marriage. That is quite different from the business of separation. If that is so, it may well be that children will have parents who divorce under the present Bill but who previously would not. What the hon. Gentleman should apply his mind to is the degree of damage that it will cause to the children.

Mr. Millan

I have already dealt with that point. I pointed out that the other consideration—the making legitimate of a very large number of children who are illegitimate today—is an overwhelming argument against continuing the present situation.

I believe that if one looks at this from the point of view of children, if under this Bill certain marriages break down which otherwise would not have broken down, a certain number of children will be damaged, although I believe it can be only a small number; but I also believe that many children will get tremendous benefits out of this Bill by having the prospect of legitimacy which is denied to them at the moment. From the point of view of children, whether legitimate or illegitimate, it seems to me that the overwhelming argument is in favour of these Clauses.

As to the financial provisions, this is a very difficult field, and again I think we should be realistic about it. It is not possible to get ideal provisions for financial arrangements in divorce. If we believe that we can get such provisions, we are simply deluding ourselves. There are many circumstances in which the finance is not available to do justice to all the parties following the break up of a marriage. All that we can try to do is to get the best possible financial arrangements in the circumstances, and, where that is so, my prejudice is certainly always firmly on the side of the wife in these arrangements, particularly where there is a family concerned.

Sir M. Galpern


Mr. Millan

I have already spoken too long through giving way.

Sir M. Galpern

I am obliged to my hon. Friend. Does he not realise that under the legislation permitting unilateral divorce, the woman who is living with a husband who is in desertion has got no legal claims whatsoever for support from that individual, but under the Clause which we are discussing we enable that man to marry her and then she has greater legal status than the wife who has been divorced?

Mr. Millan

The facts are rather different from what the state of the law may be at the present time. Any husband who has deserted his wife and has been living apart from her for five years, who has established another liaison and has children by another woman, is unlikely to be supporting his wife, whatever the law states at the present time. I repeat, we must be realistic. I have little sympathy for the husband who deserts his wife and family and makes no attempt to support them. I do not wish to give any encouragement to husbands of that kind. The fact is that whatever the present law states, many husbands do that and they get away with it.

I was going on to say, before I was interrupted, that I hope that when we consider this Clause we shall not merely consider what may be the responsibilities of the judge trying the divorce action. I hope that we shall also consider how we can make judgments really effective, so that once a settlement has been made, we can have some assurance that the wife and family will get what they are entitled to under the settlement. Many of them do not at the moment, and for a variety of reasons the deserting husband, even when he is, in the conventional terms of my hon. Friend, the guilty party, makes little provision at all. I am anxious that that shall be done.

I am sure that I carry the sponsor of the Bill with me—[Interruption.]—I am assured by my legal friends that the financial provisions in the Bill are very satisfactory from the legal point of view. What I am saying is that if the Bill gets a Second Reading and goes to Committee, this is a matter to which I, and I know my hon. Friend the Member for Aberdeen, North, attach considerable importance, and that we shall be very happy indeed to consider any Amendments which may be taken as strengthening these provisions.

For these various reasons, because this Bill does a number of other very desirable things—for example, changing the definition of "cruelty "which causes a considerable amount of distress and humiliation at present, because it says sensible things about reconciliation and because it does a number of other desirable things as well as making the main change with which I very much agree—I support the Bill very warmly and congratulate my hon. Friend. I hope the Bill will obtain a Second Reading.

The Lord Advocate (Mr. Norman Wylie)


Mr. Deputy Speaker (Miss Harvie Anderson)

The Lord Advocate.

Mr. Tam Dalyell (West Lothian)

On a point of order, Mr. Deputy Speaker. While I appreciate that this is a Private Member's Bill and not a Government Bill, nevertheless is it not unusual for the Government spokesman to intervene so early in a debate? Would it not be better if he deferred till later what is possibly the most important contribution in the debate?

Mr. Deputy Speaker

As the hon. Gentleman knows, that is not a matter for the Chair. However, perhaps it would be the right moment for the Chair to make it clear that if the Lord Advocate chooses to intervene at this stage, it in no way inhibits the debate from continuing till four o'clock.

1.57 p.m.

The Lord Advocate (Mr. Norman Wylie)

My purpose in intervening in this debate at this stage is to give the House such assistance as I can on the legal effect of this Bill, should it reach the Statute Book, on the divorce law of Scotland.

It is clear from what has already been said today that this is a matter of deep concern to hon. Members on both sides of the House. I think it will be proper for me not merely to confine myself to the broader issues and the broad effect of this legislation but to examine the proposals contained in the Bill, if not exactly Clause by Clause at least in some detail, and to see whether those provisions match up with the corresponding provisions in the Divorce Reform Act which has been operating in England and Wales since 1st January this year, and also the provisions of the Matrimonial Proceedings and Property Act, 1970. Hon. Members will recollect that the operation of the Divorce Reform Act was withheld in order that provisions contained in the Matrimonial Proceedings and Property Act could get on to the Statute Book. Many of the provisions of the 1970 Act are contained in Clause 10 of this Bill.

I do not wish to influence hon. Members on how they should vote at the end of the debate. In my position at the moment it would not be proper for me to do so. Therefore, I shall not address myself to the arguments put forward so eloquently by the hon. Member for Glasgow, Craigton (Mr. Millan), or enter into a debate on the issue. But I must say at the outset that we cannot altogether ignore the fact that there is now a divergence in the law of divorce between England and Wales on the one hand and Scotland on the other. The hon. Member for Glasgow, Shettleston (Sir M. Galpern) said, "So what?" That is a point of view, but in making up our minds on this matter it is relevant to remember that unless there is a change in the law of divorce in Scotland along the lines laid down in the Bill, a deep and radical cleavage will be maintained between the two systems. We should give careful consideration to the question whether, in these days, that situation should be accepted.

The hon. Member for Shettleston referred to the passage in the Fifth Annual Report of the Scottish Law Commission which pointed out that there would be a deep and radical cleavage between the divorce laws of the two countries, and the hon. Member for Fife. West (Mr. William Hamilton) drew attention to the significant observation of the Scottish Law Commission that: If the experience of the years before 1938 is to be relied on, the legal consequences of this will be deplorable. It is not likely that the social consequences will be any happier". All I ask is that hon. Members who take strong views on this issue, one way or the other—and it is clear that these views cut across political party divisions—should bear that observation in mind, because it is highly significant from the legal point of view.

Mr. Galbraith

My right hon. and learned Friend has just said a very serious thing. I abstained in the vote on the English divorce Bill because I thought that it was no concern of mine. Apparently my right hon. and learned Friend is now saying that because that Bill became the law of England, the law of Scotland must be changed. We were given no warning of that at the time.

The Lord Advocate

That is not what I am saying. I am not saying that because the law of England has been changed it inevitably follows that we must have a change in the law of Scotland. We must consider this proposal on its merits, before reaching a final decision. All I say is that it may be thought unsatisfactory, in these days, that there should be a radical cleavage between the divorce law of Scotland and the law across the Border. I merely put that forward as a factor that my hon. Friends should take into consideration in reaching a decision on this matter.

I recognise that there are deeply-held views on this matter, and if hon. Members feel that what has been enacted in England is totally wrong they must vote against these proposals. I am merely drawing attention to the unhappy result—if one wishes to put it in that way—that arises from the fact that the law in England and Wales is now radically different from that in Scotland.

What were the deplorable consequences that arose prior to 1938? They were the attempts made by English-domiciled men and women to go to Scotland to get the remedy of divorce, which the law in England at that time did not afford. The statute law of England has recognised divorce only since the middle of the last century, whereas the divorce record in Scotland goes back to the close of the Middle Ages—the Reformation. For 300 years there was a deep cleavage between the two countries in this respect. Whether or not that observation is relevant in modern conditions is another matter.

If this cleavage remains—and I do not seek to advise hon. Members either way on it—there will be a growing tendency for men and women who are resident in Scotland to go to England to obtain a divorce on grounds which the existing law of Scotland does not afford. It is true that the basis of jurisdiction in England, as in Scotland, is the domicile of the husband—because the wife's domicile follows that of the husband—but it cannot be assumed that that state of affairs is necessarily bound to survive indefinitely. There are almost bound to be changes in the law relating to jurisdiction in divorce.

The last Government acceded to the Hague Convention—a convention which dealt with the recognition of foreign decrees. One of the bases on which it is recommended that recognition should be given is the basis of habitual residence—something miles away from domicile. If this country should come to recognise foreign decrees pronounced on the basis of that kind of jurisdiction, it would be almost illogical for it not to amend its own jurisdiction or assume jurisdiction with similar provisions.

The Thirteenth Memorandum of the Scottish Law Commission put forward the suggestion that jurisdiction in divorce actions should be based on habitual residence, as evidenced by one year's residence. I merely say that if changes of that kind were to come about, affecting the jurisdiction of the Scottish courts and the jurisdiction of the English courts, it would make it all the easier for what is sometimes called "forum shopping" to take place. It would make it all the easier for a person resident in Scotland seeking a divorce on a ground not recognised by the law of Scotland to invoke the jurisdiction of the English court by acquiring a qualification far short of what the present law of domicile involves.

My hon. Friend the Member for Fife, East (Sir J. Gilmour) raised the question of the operative date of the legislation, as set out in Clause 16(2), which says: This Act shall come into operation at the expiry of … one month. I do not think that that would be practicable. If this legislation gets on to the Statute Book it will so alter the whole basis of divorce law in Scotland that substantial changes in the rules of court would be involved, and the earliest date at which this legislation could operate would probably be 1st January, 1972.

Let no one under-estimate the magnitude of the change which the Bill seeks to bring about in the divorce law of Scotland. For hundreds of years we have recognised divorce, at a time when it was not recognised by Statute in England and Wales. The basic concept of the Scottish law of divorce—as, indeed, until recently, English statute law—has been the concept of the matrimonial offence. It has been provided that divorce is the penalty for the commission of a matrimonial offence. The common law ground for divorce—the ground of adultery—and the statutory ground for divorce—the ground of desertion—both going back to the middle of the sixteenth century, are classic examples of this concept. The law said, "If you break your marriage vows in this way you can be penalised by having a decree of divorce pronounced against you."

More recently, in 1938, when cruelty was introduced as a ground for divorce —hitherto it had been a ground for separation only—the same concept was applied. The first inroad into the matrimonial offence concept was made in 1938, when divorce on the ground of incurable insanity was introduced. By definition, no principle of matrimonial offence could be involved there.

As has been clearly stated in the Report of the Scottish Law Commission, all these grounds have the advantage of being quite clear and well understood. They have provided on the whole little difficulty in operation in the law of Scot land, and one is bound to agree with the view expressed in paragraph 5 of the Report that: These advantages of the present law should not lightly be discarded. Accordingly, I invite the House to consider very carefully before reaching a decision on making radical changes in the law of divorce in Scotland, which has persisted in certain instances over many hundreds of years. In place of the concept of the matrimonial offence, with the one qualification I have mentioned, there is being put the empirical test of the irretrievable breakdown of the marriage. If the Bill reaches the Statute Book, that is henceforth to be the basis of jurisdiction.

I should like to dispel a misunderstanding of the position of the Scottish law, a misunderstanding repeated by the hon. Member for Aberdeen, North (Mr. Robert Hughes), who suggested that the initial view of the Scottish Law Commission was that the matrimonial offence grounds of divorce—adultery, desertion and cruelty under a modified name—should be retained, and that there should be added two new grounds based on separation, in the one case for two years, where one party consents or acquiesces in the decree being pronounced, and in the other case for such longer period as Parliament may decide on those occasions where consent or acquiescence are not forthcoming.

The Commission in some way has itself to blame for the misunderstanding, because its Report is undoubtedly ambisguous. Reading paragraph 46(a) and (g), we tend to reach the view that it is indeed proceeding on those lines, but in paragraph 15 we see that the Commission draws these various threads together and uses them in support of the proposition that irretrievable breakdown should be the ground of divorce. It says: We recommend, accordingly, that the present grounds of divorce —that is, fundamentally, adultery, cruelty and desertion— should be retained and we would identify their legal significance in this way, that if a party can prove one of these grounds, there then arises an irrebuttable presumption that the marriage has irretrievably brokendown.… That is the explanation for one of the points raised by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), who questioned the fact that the matrimonial offence concept was going out of the window and yet we find it spelt out in some detail in the opening Clauses of the Bill. The use made of the matrimonial offence concept under these proposals is to take the commission of the matrimonial offence, plus the fact that an action has been raised in court for the dissolution of the marriage, as evidence of the irretrievable breakdown of the marriage.

It is significant here—and this is one of the fields in which there is a contrast between the Bill and the 1969 Act—that what the Bill does, in accordance with the view of the Scottish Law Commission expressed in paragraph 15, is to set up an irrebuttable presumption of breakdown. If a pursuer proves one of those three existing grounds, there is an irrebuttable presumption of breakdown. That is not the case in the English Act. All the grounds on which breakdown is to be evidenced are qualified by the provisions of Section 2 (3) that: If the court is satisfied on the evidence of any such fact as is mentioned in subsection (1) of this section, then, —and here is a proviso which does not appear in the Bill— unless it is satisfied on all the evidence that the marriage has not broken down irretrievably it shall … grant a decree nisi … It seems to me that the proper approach is the one embodied in the Bill, that where there are set out the criteria by which irretrievable breakdown is to be inferred, nothing in practice is to be gained by leaving a discretion to the court to ignore the criteria. It is more logical in a sense than the provisions of the 1969 Act, if I may respectfully say so.

We must bear in mind that in English practice there has been wide use of discretion by the court. The decree nisi itself is unknown to Scottish practice. The discretion to refuse a decree if the action is raised within three years of the marriage is another example. The Divorce Reform Act is riddled with examples of the granting of a discretion to the English courts which is significantly lacking in the Bill.

Mr. Galbraith

My hon. and learned Friend is giving a very helpful speech. May I seek his further help in elucidating a point that I do not quite understand? We have the concept of the irretrievable breakdown of marriage, and my hon. and learned Friend said that if the offences ocurred this was taken to indicate that the marriage had irretrievably broken down. Is there anything besides those old offences that is regarded as proof of the irretrievable breakdown of the marriage?

The Lord Advocate

I was just coming on to paragraph (d) of Clause 2(1). We have been considering paragraphs (a) (b) and (c), setting out as evidence of breakdown the traditional forms of matrimonial offence on which a decree of divorce has been pronounced in the past.

I was about to say that on one view it could be said that the Bill makes no difference, because whereas previously a decree would be pronounced on the out-and-out-and-open ground of adultery, it will in future be pronounced on the basis of the irretrievable breakdown of the marriage, as evidenced by the commission of adultery and the action in court. However, the difference is not merely academic, because if we get away from the concept of matrimonial offence and look at the situation objectively on the basis of irretrievable breakdown, it is possible, when it comes to financial provision, to give the court a much wider discretion than it can now exercise.

Under existing statutory arrangements the court has a discretion when a decree of divorce is pronounced to make certain provision in favour of the pursuer, the reason being that as long as "guilt" and "innocence" are involved, a matrimonial offence is involved. In other words, it has never been deemed appropriate that anything should be done for the benefit of the guilty part. But if one gets away from the concept of the matrimonial offence, it is possible, as in Clause 10, to widen the discretion of the court to make financial provision on an equitable basis to either party according to the circumstances.

I illustrate the point. I am thinking aloud at the moment, but supposing we have an action of divorce at the instance of a husband against his wife on the ground of adultery. No provision could be made for her under existing law and practice, but it could be, for example, that he had already deserted her and that the period of desertion had not lapsed which would enable her to exercise her own remedy against him. She had committed adultery in circumstances which, in a sense, had been brought about by her husband's own action. Can one say that the one is more guilty than the other, or that there should be this rigid distinction as to who is the wrongdoer and who is entitled to a decree? This whole statutory provision opening up financial provision, at the discretion of the court, to either party, is made possible by getting away from the doctrine of the matrimonial offence and basing the decree on the empirical test of breakdown of the marriage.

There are other conditions which, with certain modifications, match up with English conditions. I quote, for example, Clause 2(1)(b) which deals with what used to be called cruelty. It reads: that since the date of the marriage the defender has at any time behaved…in such a way that the pursuer cannot reasonably be expected to cohabit with the defender; That is in accordance with one of the recommendations of the Scottish Law Commission. It is a recommendation which I think is worth implementing because it avoids the court having to go, in artificial detail, into circumstances which are sometimes adduced in order to satisfy the test of cruelty. In paragraph 16 of its Report "The Grounds Considered", the Commission said—and any one like the hon. and learned Member for Edinburgh, Leith (Mr. Murray) and the hon. Member for Lanarkshire, North (Mr. John Smith) with experience of courts will agree— The law relating to cruelty imposes on the courts a most unsatisfactory duty of attempting to evaluate the conduct of spouses against an unnecessarily legalistic standard, and exposes pursuers to the temptation of painting in lurid colours, in order to satisfy that standard, conduct which truly falls far short of any literal meaning of cruelty. For that reason, I have no hesitation in supporting a redefinition of cruel conduct to satisfy that lower test. The general experience in the courts is that the definition in Clause 2(1)(b) approximates to what in practice today is recognised by the courts as cruel conduct for the purpose of granting a decree of divorce.

I turn now to the point made by the hon. Member for Shettleston on the further grounds. Again, similar to the provisions of the Divorce Reform Act, 1969, these are twofold. I am not at all sure that the drafting of subsection (1)(d) and (e) is adequate. There may well have to be drafting changes there. What they seek to set out is that, if both parties are living apart, if there is no cohabitation, and both parties really want the marriage dissolved, then it can be quickly and quietly dissolved. The English Act provides that, in that situation, the other party—the respondent—must consent to the decree. This Bill goes very far the other way. Clause 3(3) specifies that the non-appearance of the defender will be sufficient. Hon. Members may think that that is going too far.

I can see the argument that consent is imposing an unnecessary burden on a respondent because there may be a situation—for example, for religious reasons—where a party is unwilling formally to consent to a decree of divorce but would be prepared to acquiesce in a decree. I prefer the Scottish approach for that type of situation. But whether it is wise to go as far as the Bill goes and to say that non-appearance for whatever reason is adequate and fair consent to acquiesce—which in effect is what it seeks—may be thought to be going too far.

It is quite possible that the parties may be living apart in circumstances in which it is not possible to proceed under Clause 2(1)(c)—which is for desertion—because there has been no desertion; in other words, they are just living apart by mutual agreement. Then one decides to dissolve the marriage under Clause 1(1)(d). If he or she cannot inform the other spouse of that situation it may be going a little far—to put it no higher for the court to be able to pronounce a decree based on two years' separation when the other spouse is not in a position to enter an appearance or not.

Mr. John Smith

Would not the right hon. and learned Gentleman accept that Clause 3(4) goes a long way to helping on that point, because it is made clear there that active steps, which will be specifically defined by rules of court, must be taken to inform the defender of the full consequences of non-appearance? I am sure that the sponsors would be delighted to accede to any Amendments which the right hon. and learned Gentleman thought necessary, but surely that provision goes a long way to helping him.

The Lord Advocate

I think that it is the least that can be done in the circumstances. I am not objecting to the provision to which the hon. Gentleman has referred. It is the latter part of the Clause which raises problems. It says: … or, where the defender's address is unknown, that all reasonable steps have been taken to ascertain it. If it is important to take all reasonble steps to ascertain the defender's address to tell him what one is going to do, it is at least open to question whether the court should enable one to do something when he, for some reason, is just not in a position to know about it. The Scottish Law Commission itself recommended in paragraph 46 of "The Grounds Considered": … for two years if both parties consent to or acquiesce in the dissolution of the marriage … It may be that that is the proper place for the line to be drawn and that one should not pronounce a decree of dissolution of marriage under Clause 2(1)(d) when the defender's address being unknown, it is not possible to inform him of what one is doing.

The provision on desertion seeks to resolve certain doubts which arise from the Divorce (Scotland) Act, 1964, and I do not want to go into detail on that. That leaves subsection (1)(e), and that is the one which I think, quite understandably, sticks in the throat of many hon. Members because, as the hon. Member for Glasgow, Shettleston put it, rightly, it is contrary to the principle that no one should be able to found on his own wrong to achieve his own advantage. That is a well-known principle of law which has stood the test of time and with which we should not readily dispense.

I think that it is possible for those who feel difficulty on this matter—as I do for example—to get round the difficulty when one accepts as the basis of jurisdiction the irretrievable breakdown of the marriage. I could never accept this proposition as long as the doctrine of the matrimonial offence was the basis of jurisdiction because it is so contrary to principle. But if one proceeds on the empirical test of breakdown of the marriage, so that the test of divorce is, "Has the marriage broken down or not?", then this would be one of the circumstances, perhaps, which could prove it.

In England, under the English Act, there are provisions which are omitted from the Bill and which, for all I know, if the Bill gets a Second Reading, may be scrutinised in Committee, as they certainly should be. For example, under Section 4 of the 1969 Act there is pro vision for paragraph (e) divorces—that is, the five-year period at the insistence of either party without involving the consent of the other—that a party may oppose the granting of a decree nisi on the ground that the dissolution of the marriage would result in grave financial or other hardship to him and it would, in all the circumstances, be wrong to dissolve the marriage.

That is a very wide discretion which is given to the court in England. That is illogical, in a sense, because the court is being told, "Here are the criteria by which you are to decide whether a marriage has irretrievably broken down, but in category (e) cases you may none the less refuse a decree." I do not know how this would operate. I suspect that this is a discretion which will rarely be exercised, because there is an inconsistency in logic between that discretion and the basic criteria on which the legislation proceeds.

There are similar provisions in Section 6 of the Act relating to both paragraph (d) and paragraph (e) in which the court is given the discretion not to make absolute a decree nisi in either of these two separation cases unless it is satisfied under Section 6(2)(b) that the financial provision made by the petitioner for the respondent is reasonable and fair or the best than can be made in the circumstances". Whether that adds anything to what is already in the Scottish Bill is very doubtful. However, I am bound to say that in the Bill which was introduced by Mr. Donald Dewar, early last year, this Clause was inserted, and some hon. Members may feel that, because it was deemed advisable by the promoter of the first Bill on the matter to include it in his Bill, there is a case for including it in the current Bill.

Sir M. Galpern

I was proposing to make quite a song and dance in the House about this omission from the Scottish Bill. However, I approached what I regard as an unimpeachable source of advice and I was assured—and this is why I am putting it to the Lord Advocate—that the principle and provisions in the English Act are already covered by the Divorce Act, 1964.

The Lord Advocate

I am not sure whether I follow the hon. Gentleman.

Sir M. Galpern

There already exists under the earlier Scottish Divorce Act the right for the court to refuse a divorce in the circumstances mentioned in that provision in the English Act.

The Lord Advocate

The court may refuse a decree if it is not satisfied that the grounds on which the decree would be pronounced are made out, but this is a provision which seems to have the effect that, notwithstanding that there is evidence, which is accepted—if it is not accepted, that is an end of the matter—that in a category (e) case the marriage has irretrievably broken down, none the less the court has a reserve power in the English Act under Section 4 to refuse a decree on the grounds that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage". So far as I am aware, that has no counterpart under existing Scottish legislation. There are provisions under the Matrimonial Proceedings (Children) Act, 1958 that a decree will not be pronounced until the court is satisfied that adequate arrangements can be made about the children, but that is a rather different situation.

I draw these differences to the attention of the House because there may be hon. Members who feel prepared to give the Bill a Second Reading if changes of this sort are incorporated, and I have no doubt, from what the promoter of the Bill said, that he would be willing to give careful consideration to any proposals of that or any other kind.

Mr. Galbraith

I do not quite under stand Clause 2(1)(b). It was on that that I asked a question. Is this the same as the old "cruelty"? If not, what is the meaning of behaved … in such a way that the pursuer cannot reasonably he expected to cohabit …"?

The Lord Advocate

I tried to explain that in two ways. The first was by reference to the paragraph in the Scottish Law Commission's Report which considers the existing law of cruelty. Cruelty as interpreted by the Scottish Courts in 1880 is very different from cruelty as interpreted by the Scottish courts in 1970. There has been a tendency over the years to reduce the standard of conduct necessary to constitute saevitia. Nevertheless, the view of the Scottish Law Commission, with which I agree, is set out in paragraph 16, and is: the law relating to cruelty imposes on the courts a most unsatisfactory duty of attempting to evaluate the conduct of spouses against an unnecessarily legalistic standard, and exposes pursuers to the temptation of painting in lurid colours, in order to satisfy that standard, conduct which truly falls far short of any literal meaning of cruelty. One unsatisfactory situation at the moment is that some judges tend to impose a stricter interpretation of cruelty than others and it is not satisfactory that there should be a division of practice among judges in any way.

Mr. Galbraith

It would occur again.

The Lord Advocate

The effect of this redefinition would be to spell out a definition of conduct which would be intolerable but at a much lower standard than what was, at one time, regarded as necessary to constitute cruelty.

Mr. Galbraith

Where spelled out?

The Lord Advocate

In the Bill— the defender has at any time behaved … in such a way that the pursuer cannot reasonably be expected to cohabit …

Mr. Galbraith

That depends on what the judge thinks.

The Lord Advocate

That depends on the circumstances, but my guidance on the matter is that, as a matter of law, that is something substantially short of what the law in Scotland now regards as cruelty, but I have already indicated that it is not always enforced by certain judges. That is a situation which one wants to avoid, if possible.

My hon. Friend the Member for Tiverton raised a number of matters. For example; he drew attention to the provisions of Clause 10(1)(c) and said that this would mean that the court would intervene in a settlement involving third parties who had no right of audience.

In a sense, that is perfectly true. There is an effect here that either ante-nuptial or post-nuptial marriage contracts which, in certain circumstances, could involve third parties, such as parents or grandparents, made on the basis that a union was about to take place, or was already in existence, and that children would follow, would be called into question if a divorce came along and a new situation arose.

As in the Succession (Scotland) Act, 1964—for this is a re-enactment of Section 26(1)(c)—the court is given wide discretion in the light of all the circumstances to vary the trust provisions in such a way as to achieve equitable distribution. It is true that third parties would be involved without the right of audience. However, this has operated over a period of years. Purely as a matter of interest, may I point out that similar provisions are contained in Section 4 of the Matrimonial Proceedings and Property Act, 1970, and so there is no divergence of practice.

My hon. Friend raised a point on Clause 11(2) concerning transactions involving disposal of property. He had a particular point about the terms of the proviso. One has always to look carefully at the drafting of these provisions, but the provision here is almost word for word a re-enactment of Section 27 of the Succession (Scotland) Act. It seeks to overcome a situation whereby, in the knowledge that a claim could be made with a divorce pending, one party defeats the exercise of these rights by disposing of the property.

Before 1964, in Scotland, the claim of the innocent party on divorce—the claim of a wife, for example—was of her legal rights on the estate of the husband. The husband could defeat the claim in advance by disposing of the property and there was nothing to stop him from doing so. The 1964 Act dealt with that situation by saying that a party could not dispose of the property mala fide, as it were, in that way in the knowledge that a claim was forthcoming. I do not think that any concern need be expressed on the wording of the provisions of Clause 11.

I draw attention to the provisions of Clause 4, which enable the court to, as it were, suspend proceedings if there is any reasonable possibility of a reconciliation taking place. There are elaborate provisions in Clause 2(2) and Clause 3 to enable parties to resume or to continue cohabitation in certain circumstances as a test of their capacity to keep the marriage afloat without prejudicing their rights to found on the matrimonial offence, as the case may be, and have the marriage dissolved. These are elaborations of the provisions of the Divorce (Scotland) Act, 1964, and are broadly in line with the provisions of the Divorce Reform Act, 1969, although where they differ they are, I think, an improvement.

I am not sure how long or in what detail I ought to proceed further on these matters. I did not intend to speak at too great length. I must, however, draw attention to the financial provisions, which are of the utmost importance in this whole subject. I agree very much with the hon. Member for Craigton that it is one thing to write financial provisions in a statute but in practice it is often a very different matter to enforce them. I know that the hon. Member for West Lothian (Mr. Dalyell) has this very much in mind. As he probably knows, a Committee under Sir Morris Finer, Q.C., is considering the position of the deserted wife who is maintaining a family.

The whole question of execution of diligence on judgment debts of all kinds in Scotland is about to be considered by the Scottish Law Commission. A working party has been set up on this matter, and it is something into which clearly there must be an investigation. There are practical difficulties with which no existing legislation is adequate to deal.

As far as I can see, however, every possible effort has been made in the drafting of Clause 10 of the Bill to do all that could be done to relieve the position of the wife in that situation. Clause 10 embodies most of the provisions contained in several of the sections of the Matrimonial Proceedings and Property Act, 1970, and—this is important, too—is substantially in excess of the provisions contained in the earlier Divorce (Scotland) Bill which was introduced early last year. It goes considerably further and includes, for example, in subsection (1)(b) provisions for orders transferring heritable property—a novel proposition.

The criteria set out in subsection (2) of Clause 10 are in the widest possible terms. Whether it would be advisable to follow the practice in the English Act of 1970 and spell out in great detail precisely the criteria that have to be taken into account is a matter which may well be worth considering, because in Section 5 (1) of the Matrimonial Proceedings and Property Act, 1970, there are spelt out in the most minute detail the criteria which must be taken into consideration when the court is making an award.

As at present advised, I would be inclined to suggest that that should be looked at again and that the provisions in Clause 10(2) should be developed and spelt out in even greater detail to give guidelines to the court as to the kind of criteria which have to be taken into account in these circumstances. Clause 10(4), for example, which provides for the securing of a payment, is an innovation and an admirable one. It is to be found in the English Act and it has been incorporated in the Clause.

My hon. Friend the Member for Tiverton, who fastened on a number of highly technical criticisms, raised the question of the definition of "child" in Clause 10. When I read that Clause, I put a question mark. I rather suspected that it was in two wide terms. The definition of "child" has, however, to be broader than simply a child of the marriage, or even a child of either party, because there could be a situation in which the child in question was a stepchild of one of the parties. There are technical reasons why the definition has to be broadened in this way.

The court would, of course, interpret "child" in the context of this legislation and it would not include any child for whom there was no moral obligation of support. It is meant to embrace a situation in which there is a child—for example, a stepchild, or a niece or nephew—who has been maintained by one of the parties and there is a moral obligation that that maintenance should continue. It is to meet that situation that the definition has been widened in this way.

I know that many hon. Members have the strongest possible views both ways on this legislation. All I am saying is that if there is to be a change in the law of divorce in Scotland, the Bill is on the right lines, and I congratulate its promoter for keeping it on those lines. One would not want to see a mix-up of the matrimonial offence concept, on the one hand, and irretrievable breakdown as evidenced by a period of separation, on the other hand.

I think that the Bill is on the right lines. With certain qualifications, it breaches the existing gap between the law of England and Wales, on the one hand, and the law of Scotland, on the other hand. While, however, I would not wish to influence hon. Members on a highly personal matter of this nature and in which the divisions of opinion run right across party lines, I ask them carefully to consider whether it is appropriate in this day and age to enable such a wide gulf to develop between the two systems within the United Kingdom.

2.40 p.m.

Mr. Ronald King Murray (Edinburgh, Leith)

I rise with some diffidence to follow the right hon. and learned Lord Advocate. I wish to speak as a Front Bench speaker on some of the points raised by the Lord Advocate and after that I should like to speak for myself for a moment or two. I should like to express gratitude to the Lord Advocate because he has been extremely helpful and gone through the Bill in great detail and very fairly. There has been criticism from his own side of the House but, as far as I can see, he has very fully carried out his duty to the House, being very careful to withhold his personal views but being careful also to guide us as to the meaning of the Bill and as to consequences and anomalies which may arise from it.

I must apologise to my hon. Friend the Member for Glasgow, Shettleston (Sir M. Galpern), because I think that I have unwittingly misled him. As we came into the debate, in great haste, he suggested to me that there was no statutory provision which would have the effect of enabling courts in Scotland to withhold a decree in divorce if it was not satisfied as to the provisions involved in the break-up of the marriage. I contradicted that and said that there was such provision in the Matrimonial Proceedings (Children) Act which allows a court to withhold a decree. I do not have time to explain the matter fully to him and I think I have misled him, for which I apologise.

Turning to the main issues, the detailed technical points which have been raised, particularly by the hon. Member for Tiverton (Mr. Maxwell-Hyslop), have been answered in substance by my hon. Friends and the Lord Advocate. The hon. Member for Tiverton was worried about representation for children, which is a very important point and which should be looked at in Committee. I am concerned at the wide definition of the word "child". It is misleading and in Committee something will have to be done about it. The most important thing on Second Reading is that the principles should be considered.

The Lord Advocate touched on many points illustrative of this and it must be appreciated that in many small technical points great improvements are made by the Bill dealing with technical aspects of the law of Scotland. May I illustrate that in two respects. Breakdown will be established if adultery is proved or if there has been desertion for a period of two years. But the defences which are open to these traditional grounds of divorce are reconstituted and modernised so as to make them clearer and less technical and so as to encourage reconciliation more powerfully than it has been encouraged before. These are steps in which all hon. Members, whether or not they oppose the principle, can take unqualified satisfaction.

This applies to the ground replacing cruelty. In place of desertion on the ground of cruelty which under the present law involves many cruel acts, there is introduced breakdown on the ground that the matrimonial conduct of a spouse is such that his or her partner cannot reasonably be expected to live with him or her. Under existing law much real cruelty and anguish is suffered by wives and husbands who cannot, for technical reasons which the Bill removes, sue for divorce on the ground of cruelty, or even for judicial separation.

Mr. Galbraith

Would the hon. and learned Gentleman expand on that?

Mr. Murray

Yes. As an illustration of one of the advantages of this Bill I would point out that whereas very technical questions arise as to the responsibility of the partner whose behaviour was intolerable and by any standards inhumane under present law, no such problems will arise under this Bill. The question for the court to consider is whether the conduct, whether due to mental abnormality or not, is such that the other spouse could not reasonably be required to live with such a partner.

Mr. Galbraith

Is that an objective or subjective standard?

Mr. Murray

I do not think that I should go into that in great detail now. That is the kind of point which ought to be canvassed in Committee.

The Lord Advocate

There is one further difference between the existing law and this Bill and it is that there would be no question of having to establish that the conduct had impaired, or was likely to impair, the health, mental or physical, of the other party, which is an existing requirement.

Mr. Murray

I am obliged to the right hon. and learned Gentleman. That was the next point that I was about to make. The two new grounds of irretrievable breakdown are very important and can quite clearly be justified. The new ground under Clause 2(1)(d) has two aspects. The first is that it is not an absolute right at the end of two years to get a divorce because if the other party opposes it then the period of breakdown is automaticaly extended to five years. The second point is that in any event the point of breakdown is different. It arises at the commencement of the period in the case of desertion, whereas in the case of breakdown under 2(1)(d) the point of breakdown arises after the two years have elapsed and the parties have been separated during that time. It is a new, distinct and important ground.

Similarly, it is obvious that breakdown under 2(1)(e) when the parties have lived apart for a period of five years means that the marriage is at an end. This is facing facts. We are not tampering with matrimonial rights in any way but facing the realities of life. The hon. Member for Fife, East (Sir J. Gilmour) mentioned anomalies which are important for us to consider in Committee. He asked the interesting question as to what would happen if on the basis of the same period of breakdown, say in the extreme case of five years, a wife were to sue for judicial separation and aliment on the ground of the five-year breakdown and the husband were to sue for divorce on the same ground.

The courts are well used to dealing with cross-actions which are an apparent anomaly to the layman. The courts are able to cope under present law with that and I do not see any special difficulties arising out of this. There are anomalies but they will not be beyond the capabilities of the Scottish courts to deal with equitably and fairly. The important thing is that in some cases, particularly under subsections (d) and (e), it is obvious that marriage is at an end. None the less this Bill seeks to bring to them the maximum encouragement towards the reconciliation of the parties even at that late stage. When that fails it seeks to heal the social wounds in a manner which is as just and fair as possible to all affected, particularly the children.

Mr. McElhone

I have listened to my hon. and learned Friend explaining this matter, particularly Clause 2(1)(d) about the two-year separation. Do I understand that a decree of divorce will be granted if the respondent does not object?

Mr. Murray

Yes, I think that that is what we have provided. I share the doubts of the right hon. and learned Lord Advocate about whether it is right to leave the Bill as it is at present or whether some stronger provision should not be inserted so that an appearance must be made. I would strongly resist any provision corresponding to the English one which requires consent. I am against divorce by consent, and clearly my hon. Friend shares that view. For reasons which I have made clear, it seems to me that it may be desirable at a later stage to consider whether the Clause should be amended to give effect to that type of provision.

It is in the vein of trying to do what is just and fair in facing the facts of a broken marriage that this Bill is so successful. Paragraph 29 of the Scottish Law Commission's Report, "Divorce: The Grounds Considered" quoted the passage in the other publication on divorce, "The Field of Choice", which dealt with this matter of breakdown: The objectives of a good divorce law should include the support of marriages which have a chance of survival and the decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead. The Scottish Law Commission would probably wish, as I would, to go one stage further and stress that it is not simply that. It is the healing of the social wounds in the most just and fair way to all concerned which must be the paramount objective of divorce law.

Looking at it from a technical point of view, without expressing a view myself, it seems to me that those who have said that the Bill does all that is humanly possible to achieve these objectives are well-founded.

I well understand that hon. Members may oppose the Bill for reasons which are diverse. Some may oppose it on conscientious grounds. To my Roman Catholic friends who have religious objection to divorce as such, let me say that I fully understand their point of view. They will deal with the matter as one of conscience, and they will weigh the arguments carefully. I hope that other hon. Members will do the same, putting prejudice behind them and facing the fact that we live in an imperfect world where we must do all that we can in those tragic cases where the best will in the world will not preserve marriages.

Mr. Bruce-Gardyne

I may be anticipating the hon. and learned Gentleman, but I hope that he will deal with one point which has been made by a number of hon. Members. In view of the fact that we now have a different provision in English law, there might be a case for giving the English Act a trial period before bringing in the Scottish one.

Mr. Murray

I assume that the hon. Gentleman means giving the English Act a run to see how it works.

Mr. Bruce-Gardyne


Mr. Murray

I am not very enthusiastic about that. Although, on the face of it, it is a commonsense proposition, looked at more carefully, it is not as attractive as it first appears.

Every reform of the law is bound to run into teething difficulties. Those difficulties may be exacerbated by the Gretna Green situation to which a number of hon. Members have referred. It may be that people will create a domicile that they would not otherwise have in England merely to take advantage of the English Act. People will try to use the benefits and remedies which the English law provides. These are different in some respects and involve more discretion than it is proposed to give the court under the Scottish law. There are sound reasons why, if there is to be a new principle of divorce which is as acceptable in Scotland as it is in England, it is desirable that the teething troubles and the initial experience should, if possible, run parallel in the two countries.

It is in the vein of an open-handed attempt to produce a more equitable balance between husbands and wives to produce a fairer ground of divorce than the highly technical and artificial one of the matrimonial offence that the present Bill gives financial provision not to the technically innocent spouse, as at present, but to either spouse on the basis of need and circumstance as presented to the court. As the right hon. and learned Gentleman the Lord Advocate has pointed out, the Bill is a counterpart of the main provisions of the Matrimonial Proceedings and Property Act, 1970, which are included.

There is one further advantage in the Bill to which I should like to draw attention, and that is that it reforms the law of judicial separation so as to apply to it, as well as to divorce, the principle of the irretrievable breakdown in place of the matrimonial offence. I think that it is a highly satisfactory thing that the law of judicial separation and of divorce run in parallel. There should be no disconformity between them. There is such disconformity in the law in England at the present time, and it has given rise to serious concern in England and Wales.

I hope that I have spoken in a technical way, not in such a way as to persuade any hon. Member to vote for one side or for the other, but simply so as to display the technical advantages of the Bill—and, I concede, certain disadvantages which may be corrected; but I think that as an individual and as a private person I should like to express my own personal view, and my own personal view is in favour of this Bill.

I think it is an important step in rationalising and humanising the law on divorce. It has the broad support of all the professional legal bodies which have been consulted upon it, and I certainly agree with the view which was put by my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes)—and I for my part would express the most profound admiration for the way in which he presented his Bill today and for the work he has put into it—that the effect of this Bill should be to strengthen the marriage bond where breakdown has not been reached. I would commend this point to my Catholic friends. It is a point of some substance that this is not only a Bill which merely strengthens divorce but, in my view, a Bill which will strengthen the marriage bond where the point of breakdown has not been reached.

Mr. Galbraith

Would the hon. and learned Gentleman expand on that?

Mr. Murray

I am tempted to do so, but I will not give way to the temptation at this time.

I conclude by saying that I think that this is a Measure of major law reform, and that it should be recognised, even by those opposed to the principle of divorce, that, while divorce exists, and while marriages break down, the present Bill, though not perfect by any means, is a better, surer and juster way to handle the social consequences than anything in the existing legislation.

3.7 p.m.

Mr. James Hamilton (Bothwell)

First, I should like sincerely to congratulate my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes) on his presentation of his Bill, but not upon the content of it.

I want to deal with something which was said by my hon. Friend the Member for Glasgow, Craigton (Mr. Millan). I want to deal with this at the outset, without any umbrage at all, but just to make my own position quite clear. It was also mentioned by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Murray). I have dealt with very many problems as a Member of Parliament, and on every occasion without exception I dealt with them on the basis of my party politics and not on the basis of my own religious beliefs. Indeed, the Catholic Church has in this country a very renowned judge, and I am quite sure that every one of us recognises that when he is acting in court as a judge he performs his duties according to the highest possible order of his profession.

Having said that, I go on to recognise that this Bill, to all intents and purposes, might be thought to be simply a tidying up of the existing situation. If I thought that were so, I would support it, but I have examined it carefully and have had discussions with people inside and outside the House of all shades of political and religious opinion, and I am firmly convinced that this will not be a step in the right direction.

I am concerned, as were my hon. Friend the Member for Glasgow, Shettleston (Sir M. Galpern) and virtually every hon. Member who has spoken, by the financial provision for the divorcee—in most cases the unfortunate woman. Nowadays young people are married at 16 and the figures that have been presented to me show that most divorces are of young people who have entered married life at an early age. I am prepared to accept this information as it was given to me by people who are reputed to have given this matter a great deal of thought. The situation could be reached of a young couple being married at 16, divorced at 21 and, on the basis of the Bill, there could be a further divorce at 26. The Bill makes no provision for steps to be taken to try to heal marriages which go on the rocks. This should be the responsibility not only of the social workers and clergymen who, every day of every week, try to the best of their ability to keep people happily married, but of Members of Parliament.

Marriage guidance councils, which give such a valuable service, should receive more money. If we were to put more money into this service many marriages which are on the point of breaking down could be put back on the rails. I suppose it is easy for those of us who are happily married to look at this from the outside and pass judgment, but I am speaking only on the basis of cases which have been made known to me. Every Member of Parliament, even those who were newly elected on 18th June, will have had cases presented to them by their constituents which will have furthered their knowledge and experience, but I have never received any representation, either by individuals or organisations, that the divorce law of our country should be changed.

The argument has been put forward that because the law in England and Wales has been changed it should also be changed in Scotland, but before doing this we should take into account how that new law works and whether there is anything we can do to strengthen it. At the end of the day we might discover that the new legislation is no better than the previous legislation. If the Bill goes to Committee, the experience derived from the English legislation should be taken into account so that the members of the Committee will be able to make this the best possible Bill.

We should not argue the matter on a religious basis. It was Voltaire who told an opponent that he disagreed with the man's views but would fight to the last drop of his blood for that man's right to express his views. I have a point of view, and my experience as a Member of Parliament must be taken into consideration. I am entitled to speak not only on matters concerning my constituents, but on moral issues. I oppose the Bill, not because of my religious beliefs, as some may think, but because I do not believe that it improves on the present legislation.

3.15 p.m.

Mr. Ian MacArthur (Perth and East Perthshire)

It gives me the greatest pleasure to follow the hon. Member for Bothwell (Mr. James Hamilton) and I am sure that I speak for many hon. Members in expressing appreciation for the very moderate way in which he stated his opposition to the Bill.

He referred, as did my hon. Friend the Member for Ross and Cromarty (Mr. Gray), to an apparent lack of public demand for such a Measure as this, but I suggest, with great respect, that divorce is not a subject on which people make spontaneous representations to Members of Parliament. I have received only one letter from a constituent, and that happened to be in favour of some such reform as this.

Nevertheless, I sense a change of opinion in Scotland. My assessment, for what it is worth—and it is certainly not based on any statistical system of measurement, but is a matter of feeling rather than of logical judgment—is that there is now a large body of opinion in favour of reform, whereas there was not some years ago. I have also been very impressed by the views of the Law Commission and the Church of Scotland, and by the professional opinions which have been expressed to me.

While on the point of representations, it is fair to say that the partners in a happy and contented marriage are un likely to press anxiously for a change in the divorce law. The hon. Member for Lanarkshire, North (Mr. John-Smith) pointed out that, fortunately, divorce affects only a small minority of marriages, and then usually only once. I therefore discount the fact that this is a subject on which very few people have made representations to me personally.

It would be a great pity if the message that went out from the House today were that we were trying to put through a Bill to make divorce easier. I do not see the Bill in that light. It widens the grounds for divorce, and I regard that widening as reasonable. Like all hon. Members, I am greatly depressed by the prospect of any divorce. It is always sad to witness the collapse of a marriage entered into with joy and confident hope for the future. Yet it is true to say that the law should not be so easy that it can somehow encourage the break-up of a marriage which might otherwise overcome its immediate problems and survive into the future.

The law is not the only consideration in divorce. The matter of whether divorce should be considered goes far beyond any assessment of the state of the law. The contemplation of divorce surely also involves the conscience, the moral outlook and the religious belief of the individual. If these permit an individual to consider divorce, then I suggest that that consideration should not be hampered by an unreasonable law. It is with that approach that I welcome the general provisions of the Bill.

The greatest change proposed in the Bill is the introduction of the irretrievable breakdown of a marriage as grounds for divorce. As my right hon. and learned Friend the Lord Advocate, in a most helpful speech, pointed out, this is a new concept in Scottish divorce law because it does not involve any marital offence. It seems to me that such a change is right. I find it hard to justify a position in which the law can prop up and maintain an illusion. If a marriage has completely broken down beyond the point of repair, then it seems to me that that marriage should be allowed to die within the law. Nor is it right that the present state of the law should enforce as in some cases it does, the continuing illegitimacy of a child of an irregular union.

I am concerned that there should be proper protection for both parties in Clause 2(1)(d) of the Bill. This problem concerns me very much. One could describe that provision in shorthand as the "mutual consent provision"—in other words, if there has been an irretrievable breakdown, that will be grounds for divorce after two years by mutual consent. But the problem that arises as the Bill stands is that this could develop into divorce by non-consent, in that there is no provision to oblige the court to discover the wishes of the party who might otherwise want to defend himself or herself and so put a stop to the proposal that the marriage should be ended after two years.

I sincerely hope that in Committee the hon. Gentleman will either introduce or accept an Amendment to put an obligation upon the court so that we do not find ourselves in the absurd position of enabling a divorce to go through after two years with one of the partners knowing nothing about it. I accept that that is an extreme case, but it is conceivable as a result of the present Bill.

The paragraph (e) provision is that there can be grounds for divorce after a separation of five years at the request of one of the parties to the marriage. It was on this point that I used my vote last year against Mr. Donald Dewar's Bill. I did that—I think Mr. Dewar knew this—because of my concern about the financial position of a wife deserted in this way.

The hon. Gentleman will realise from what I said in an earlier intervention that I have changed my view of the total position because he has included Clause 10 in his Bill which makes financial provision for the deserted wife, and the powers and the discretion given to the court are very wide indeed. Of course, there is the problem of enforceability. There is equally the problem that if there is no money and no property, there is nothing to apportion. I very much hope that the study to which my right hon. and learned Friend the Lord Advocate referred of the question of enforcement will lead to a situation in which administrative provision can be made which will produce a better situation than the very unsatisfactory state today. I am sure that many hon. Members have shared my experience of the difficulty and hardship which can be caused through the present unsatisfactory position, which I think is largely one of administrative difficulty more than anything else.

The debate has been running a long time, and others wish to speak. May I conclude by saying that I have been very impressed by the comments made today, not least by my right hon. and learned Friend, about the difficulties that could follow if we were to maintain in Scotland a divorce law which was markedly different from that of England and Wales. I am certainly not one of those who believe that it is right to bring Scots law into line with English law as a matter of principle—far from it.

Mr. William Hamling (Woolwich, West)

What about the other way round?

Mr. MacArthur

The other way round usually makes much more sense. In this case, I believe that with the greater movement of people between the two countries, and to avoid the creation of gross anomalies in the future, it would be wiser now for the law in the two countries to be brought into line at least on this point.

3.28 p.m.

Mr. Tam Dalyell (West Lothian)

I wish to follow my hon. Friends the Members for Bothwell (Mr. James Hamilton) and for Glasgow, Craigton (Mr. Millan) on this simple issue of aliment. May I quote four examples which state the problem far more trenchantly than I could in 10 times the number of words.

First there is the case of Mrs. A: I was married in 1962. By 1965 we had three children, and it took me all my time to look after them. When Jim came home from his work I could not get out, even if I could get a baby sitter. He became frustrated, and I was tired and exhausted. I felt he could no longer be bothered with me. He began to see more and more of a girl at the office. My marriage went from bad to worse. We had a row and separated. I tried to patch it up, and he came back for a few weeks. But he and the girl started seeing each other again. Finally I got a court order. For a year he paid me regularly, and sent presents to the children. Then she (the girl) had a child by him. Payments to me defaulted. They moved to the west of Scotland. My money became more and more irregular. It has now stopped altogether. I don't know where to turn because my lawyer says he can do very little. I think he has tried. The Ministry people have been very understanding. Next, the case of Mrs. B: I'm very bitter. I don't see why I should have to go to the Ministry of Social Security every week, and be seen by the neighbours. The courts gave my husband an order and he should jolly well be made to pay. I know he's making a packet of money and can afford it. Next is the case of Mrs. C: For the first few weeks I got the money on the dot. Then my husband wrote me a line to say that he was sick, and would I excuse him until he got better. Since then it has been one excuse after the other. Now he's unemployed. I go out to work, but I and my daughters just don't have enough. And they tax me at East Kilbride as if I actually got the aliment. I don't want to go to lawyers, because I can't afford it, and I don't want the people at work to know I've been in court. My employer wouldn't like it. It's hard luck on the girls. For the first couple of years, my husband paid the aliment on and off. Then he joined up with another man's wife. My brother and I went and we had a terrible row—oh, it was dreadful. My brother said he would go straight to the lawyers. But a few days later my husband and the woman flitted. They may have gone to Corby, but we could find no trace when we went there one weekend. He's just disappeared. I think the Ministry and the police know where he is, but they won't tell. It's just a suspicion. What can I do? Why shouldn't he pay, they are his children! I would rather he paid than the taxpayer through the Ministry. That is the problem. Every hon. Member could produce similar letters. What is more, I am afraid that such letters, and interviews at our weekly surgeries are on the increase. I have to admit that I went as part of an official visit to the Springburn office of the Ministry of Social Security in 1969 and the officials there said, "Since you" that is, the Labour Government—"have introduced better benefits, as part of a continuing trend, the number of separations and cases of divorce have almost doubled in just over two years."

The awful fact is that many men of a basically decent nature, who would not have left their wives to face hardship even a few years ago, let alone in the 1930s, now justify their actions and come to terms with their consciences, by saying to themselves, "Modern social security benefits will leave my wife comfortable, at any rate." Deplorable though this attitude may be we cannot shut our eyes to it. It exists. That is the problem that prompted the former hon. Member for St. Marylebone—Mr. Hogg, as he then was—to say, There is the complex subject of collection which is probably the most urgent of the questions relating to matrimonial and affiliation cases."—[OFFICIAL REPORT, 8th December, 1967; Vol. 755, c. 1841.] The former hon. Member for Bolton, West—Mr. Gordon Oakes—on 5th February, 1968, moved That this House takes note of the plight of wives separated from their husbands and the urgent need to improve the enforcement and method of collection of maintenance orders."—[OFFICIAL REPORT, 5th February, 1968; Vol. 758, c. 85.] I shall not quote further from what my then hon. Friend said. I simply ask what we are going to do about it. I listened with care to what the Lord Advocate said, because I want to suggest a different system whereby the State would be responsible both for the paying and for the collection. There is no easy answer; if there had been it would have been put into effect long ago. Before any definite action is taken, however, I suggest that we should wait for the report of the Finer Committee, which is examining the problems of the one-parent family and should report shortly.

In the meantime, I ask the Government, their lawyers and advisers to consider the possibility of building into the Bill—I claim no originality for the idea—a system of collecting court awards through the Inland Revenue and the Ministry of Social Security and paying out the sums to the unfortunate women through the machinery of the Ministry, whether or not the State has been able to collect them. This would certainly involve an addition to public expenditure. The Minister might like to know that I contacted the office of the Financial Secretary to the Treasury, and the Treasury are being most helpful. But deserted wives are among the most hapless people in our society, and are often unable to face the prospect of going to lawyers' offices to assert their rights.

Is the scheme feasible? I have discussed it both with friends at Parliament House and solicitors in Edinburgh, and they see no objection; indeed, they would welcome it. My right hon. Friend the Member for Coventry, East (Mr. Crossman)—the former Social Services Secretary of State—has authorised me to say that he would have liked to introduce such a scheme but was persuaded by the Department to postpone it until the Finer Committee had reported. I hope that those representing Scottish interests on the Finer Committee will soon report in detail on this issue.

The problem of deserted wives lends itself to abuse, and is one of the two basic scandals that the Social Security administrators have to face—the other being the non-declaration of side jobs, like window-cleaning. Many hon. Members could quote instances of deception, when men go to work in another town but slip home at weekends to their families. In the absence of secret police it is difficult for the Ministry to trace such cases in large cities, where neighbours tend to be anonymous. I do not say that that is a problem in West Lothian, where we tend to know each other's business, but it is the situation in major cities. Mrs. C. in the examples that I gave, said that she was taxed as if she received aliment.

In my experience, East Kilbride behaves with good sense. However, hard ships do exist either for those who do not know how to cope with the tax authorities or are too shy, or for those who are presented with an unexpectedly large tax bill at the end of a year in which they have started work after they have been deserted. I hope that the Finer Committee will say something about this, but I should like the Government to let us know before the Committee stage of any executive action they propose to take, or of action through the Bill or the Finance Bill.

Mrs. D. just said that her husband had vanished. I am aware that there are those who feel passionately that Government Departments should reveal addresses to deserted wives. On balance, I accept the official Government line against revelation on grounds of privacy, but it is much easier for a Government that knows the whereabouts of people to collect sums awarded by the court than it is for a private individual with none of the machinery of State to help her do so and no knowledge of the whereabouts. This in itself is a powerful reason for introducing the kind of collection system by the State which it is the purpose of this speech to support.

I have taken the unusual step of giving the Scottish Office detailed advance notice of what I hoped to say, and I hope that the Lord Advocate will consider it.

3.37 p.m.

Mr. Frank McElhone (Glasgow, Gorbals)

I have first the pleasant duty of congratulating my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes) on being lucky in the Ballot for Private Members' Bills and the most competent way in which he delivered his speech on a legal subject. He does credit to his eminent legal predecessor, the late Mr. Hector Hughes. But my hon. Friend will realise that I am completely opposed to the Bill.

We on this side have always talked about Socialism being the language of priorities, and the Bill is not a priority. If I or a number of other hon. Members had had the choice we would have picked a more urgent and more compassionate subject than the Bill. The Bill will create a barristers' bonanza. It makes no difference, and it does not improve the previous divorce laws in Scotland.

Has there been a pressing demand for the Measure? I have not received a single letter in support. We run a full-time surgery, and no one has approached me on the matter. We were told that during the passage of the English Act thousands of people were waiting for it to become law. As far as I can ascertain after talking to various people, there has been an abnormally low number of applications, though I admit that that Act has been effective only since 1st January.

I commend the common-sense attitude of my hon. Friend the Member for Glasgow, Shettleston (Sir M. Galpern), who put the case in its proper perspective and added to his stature as a Member.

Is there a need for the Bill? We had an excellent contribution by the Lord Advocate, who cleared up a great deal of the worry in my mind. The rising divorce figures in Scotland do not suggest that it is difficult to obtain a divorce. The Scottish Home and Health Department figures show that in 1959 1,684 divorces were granted, and that there was a 200 per cent. increase in 1969 to 4,215. That does not suggest that it is extremely difficult to obtain a divorce in Scotland. In fact, one can stand on the platform of Glasgow's Queen Street Station on Saturday mornings and watch the trains to Edinburgh, which are commonly known as "divorce specials" because they are crammed with human matrimonial debris going to Edinburgh to try to get leave of their spouses for one reason or the other.

The English legislation began on 1st January. It is fair to compare the English with the Scottish figures going back over a 10-year period. I shall not quote them year by year and I hope that the sponsors of the Bill will accept this as generous on my part. In England in 1959, divorces granted totalled 23,837. There was an astonishing rise. In 1969, the figure was 50,063. That does not indicate that it is difficult to get a divorce in England or Wales or in Scotland.

What worries me also about this Bill, if it goes through, is what is to happen about Ulster. Do we have the prospect of Irish boats coming into Stranraer full of people anxious to get in on this new Gretna Green complex? This is also something that we have to consider.

Pre-war divorce figures were only about 3,000 a year. If one accepts the fact that 50,000 cases a year mean that 100,000 people are divorced each year, and if one accepts the average of two children to a marriage, then, over a period of five years, a total of 1 million people are involved in divorce proceedings. That is a shocking figure. As legislators we have a responsibility not to create this rich harvest for our hon. and legal friends and their associates.

Unfortunately, today—I hoped that it would not happen—the rather sensitive attitudes of religion were introduced into the debate. I know that it was meant in kindness and in all honesty. I want to make my position clear, as did my hon. Friend the Member for Bothwell (Mr. James Hamilton). I accept that the law of the land accepts divorce, and I am not speaking from any sectarian point of view whatever. I speak from my experience as the chairman of the magistrates in Glasgow for a period, as a member of the Visiting Committee of Barlinnie Prison in Glasgow, dealing with many tragic cases emanating from matrimonial breakdown, and from experience of running a full-time advisory centre in my constituency.

If there is one glaring weakness in the Bill it is its lack of emphasis on children. Apart from the three lines giving a legal definition of "child", there is no mention of children. After all, these are the people who suffer, and who will suffer if the Bill goes through.

I live in an area surrounded by children's homes. Anyone looking at the numbers of children in the care of the local authorities cannot fail to be concerned by the break up of so many marriages and the fact that so many children are abandoned so readily. I was speaking to children only this week who were quite mystified as to why their mother had dumped them in a home so that she could marry again in an association free of children. No doubt most hon. Members are concerned about this.

People with experience of children's homes will tell one that the worst home is often better than the best orphanage, and I can confirm that from my own experience. I am concerned about the growing number of children who are being placed in the care of local authorities because of lack of a proper attitude by parents in a marriage breakdown. It is highly significant that there has been no noise of approval for the Bill from any of the marriage guidance councils or advisory bodies. If this Bill was going to help sustain marriages, surely these people, who are deeply concerned with the problems of break up, would have been the first to recommend it. I have seen nothing about that subject in the Press and nor have I heard any of my hon. Friends comment on it, although I have been here since 11 o'clock this morning and listened intently to every speech.

What has been the estimated cost of the Divorce Reform Act, 1969. I understand that in legal aid the cost last year was £400,000. Another alarming consideration is that loopholes permit erring husbands to avoid mantenance payments in respect of wives and children, and the result is a cost to the country of about £30 million to £40 million. It is astonishing that the country should have to under take responsibilities which husbands and fathers have abdicated.

There are some matters on which I should like some guidance from the Lord Advocate. I understand that there would be no onus on the petitioner to prove that the marriage had irretrievably broken down and that the onus would be the other way. That would be grossly unfair, highly undemocratic and certainly unjust. My fears were confirmed when it was said that a divorce would go through if the respondent had not objected after two years. That would blow the law wide open for easy divorces.

Clause 4 refers to reconciliation. This is an important provision and the 1969 Act put much more emphasis on it than the Bill does. Clause 4 says: At any time before granting decree in an action for divorce, the court may continue … That is not as strong as I should like it to be, and it is not as strong as the English legislation. Section 3 of the Divorce Reform Act, 1969, says: Provision shall be made by rules of court for requiring the solicitor acting for a petitioner for divorce to certify whether he has discussed with the petitioner the possibility of a reconciliation. That is highly commendable and I am sorry that it is omitted from the Bill.

I shall vote against the Bill, although I came here prepared to be persuaded by the arguments of my hon. Friends, and I hope that they will accept my sincerity in saying that. Some hon. Members may laugh, but a handy memo was pushed into my hand by some of my hon. Friends to guide me in my deliberations on the Bill. It suggests—and I accept that this is the law—that a husband may abscond to England and, through the process of the law there, obtain a divorce without giving his wife a chance to be present.

On reading the 1969 Act, as I have done carefully both yesterday and this morning—

Mr. Speaker

Order. I am sorry to interrupt the hon. Member, but difficulties arise for the Chair when hon. Members give undertakings about the length of their speeches which are not kept. One tried to arrange that there should be after this speech a brief speech from the other side of the House and then the winding-up speech. It is not fair on the Chair for hon. Members to speak for more than twice as long as they said they would.

Mr. McElhone

While accepting your guidance, Mr. Speaker, it must be accepted that I have sat here since 11 o'clock this morning. I did not realise that I gave any particular guarantee about the time I would take. However, I accept your guidance. I am speaking at shorter length than most other hon. Members and I think that I have something positive to say. Even if I go on much longer, it will still be one of the shortest speeches today.

Nevertheless, I feel quite strongly about the Bill. Therefore, I must at least allude to one or two more points which have special significance for me and for many of my constituents. One of the most important questions which arises in the Bill is that of hardship. Clause 10 certainly alludes to hardship, but it does not go as far as the Divorce Reform Act, which provides that if the court accepts that there is any question of hardship, it may refuse to dissolve the marriage. As I understand it, that is not provided in the Bill. If these other provisions were included in it, I might be persuaded to speak in support of it.

I will make my conclusions as brief as possible. In my opinion, the Bill does nothing to prevent the breakdown of marriage. After listening to many hon. Members, especially those from the legal profession, who are much more qualified than I, I am still not convinced that the Bill will help the problem of the breakdown of marriage. Its safeguards for the wife and the child are particularly weak. Pension rights, to which my hon. Friend the Member for Shettleston referred, are another important point. If we do not include provisions in this respect in the Bill, the wife will be thrown on to social security and given the stigma of being a pauper, through no fault of her own.

I also think that to make divorce as easy as we are attempting to do in Scotland will reduce the moral fibre of the people. Anyone who mixes in youth clubs and talks to as many young people as I do would probably agree with that view.

I obviously take the guidance of the Chair, Mr. Speaker, and I will certainly allow time for another hon. Member to make a contribution. I accept that there are questions about the law of divorce as it exists in Scotland, but I do not accept that the Bill will help in any way concerning the breakdown of marriage.

3.55 p.m.

Mr. William Hamilton (Fife, West)

There are only five minutes left and therefore I cannot possibly say what I wanted to say. Certainly if I had had two hours I could not have convinced my hon. Friend the Member for Glasgow, Gorbals (Mr. McElhone). It is absurd for him to pretend that he came here seeking to be convinced of the wisdom of the Bill. I appreciate his point of view. But nothing would convince him other than that this Bill is wrong. I understand his sincerity and I hope that he will understand ours. I hope, too, that he will understand that the fact that there is no vocal evidence that the bulk of people in Scotland want this Bill is no reason why this House should not legislate. Very often we legislate because we think it right to do so, and in that respect we have to lead public opinion rather than be a reflection of it.

I am fascinated by debates on these problems because everyone who speaks

has sincere views and opinions which cut across party divisions and also because the end result is not predictable. There are no Whips on and we do not know what the result will be.

Those hon. Members who have spoken against the Bill are not prepared to face up to the realities of life. In some ways we are debating a Bill on human failure, and to that extent it is regrettable. But we may as well face the fact that with marriage, perhaps more than any other contract, a person is buying a pig in a poke. Neither the man nor the woman can know as intimately their partner before marriage as afterwards—or at least I hope they cannot. It is only when someone has lived with another person that he finds out what he or she is.

This House can legislate as it likes but it cannot legislate to say that, come what may, when a person signs that contract it shall be for life, because we know that life is not like that. I do not suppose that many people go to the altar or the registrar's office to be married with the object of divorce in their minds, certainly not uppermost in their minds.

Whether or not this Bill is placed on the Statute Book, we cannot affect that fact. People will separate, will seek divorce for a variety of reasons, and if that is the case—and the law of Scotland has recognised this since the Reformation—then my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) is absolutely right. At least if we recognise this by law, let us make the law modern, humane and reasonable, and that is all the Bill seeks to do.

The Lord Advocate deserves the gratitude of the House for the manner in which he has pointed out certain defects in the Bill, most of which can be rectified in Committee, as he would be the first to admit. He went so far as to say that the financial side was more generous than Mr. Donald Dewar's Bill—

Mr. Robert Hughes

rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The House divided: Ayes 71, Noes 15.

Division No. 66.] AYES [4.0 p.m.
Abse, Leo Barnes, Michael Booth, Albert
Albu, Austen Bell, Ronald Brown, Hugh D. (G'gow, Provan)
Allaun, Frank (Salford, E.) Bidwell, Sydney Bruce-Gardyne, J.
Buchan, Norman Jones, T. Alec (Rhondda, W.) Pavitt, Laurie
Buchanan-Smith, Alick (Angus, N&M) Kilfedder, James Perry, Ernest G.
Buck, Antony Lambie, David Prentice, Rt. Hn. Reg.
Carmichael, Neil Latham, Arthur Rankin, John
Carter, Ray (Birmingh'm, Northfield) Leonard, Dick Robertson, John (Paisley)
Cunningham, G. (Islington, S.W.) Lestor, Miss Joan Sillars, James
Dalyell, Tam Lewis, Arthur (W. Ham, N.) Silverman, Julius
Deakins, Eric Lipton, Marcus Smith, John (Lanarkshire, N.)
Dixon, Piers MacArthur, Ian Spearing, Nigel
Eadie, Alex Mackie, John Stanbrook, Ivor
English, Michael Mackintosh, John P. Stodart, Anthony (Edinburgh, W.)
Fletcher, Raymond (IIkeston) Marsh, Rt. Hn. Richard Strang, Gavin
Fookes, Miss Janet Maxwell-Hyslop, R. J. Taverne, Dick
Fraser, John (Norwood) Mellish, Rt. Hn. Robert Tebbit, Norman
Freeson, Reginald Mikardo, Ian Thorpe, Rt. Hn. Jeremy
Hamling, William Morgan, Giles, Rear-Adm. Wellbeloved, James
Houghton, Rt. Hn. Douglas Moyle, Roland Wilson, Alexander (Hamilton)
Howell, Denis (Small Heath) Mulley, Rt. Hn. Frederick Wylie, Rt. Hn. N. R.
Hughes, Robert (Aberdeen, N.) Murray, Ronald King Younger, Hn. George
Jenkins, Hugh (Putney) Pannell, Rt. Hn. Charles TELLERS FOR THE AYES:
Johnson, James (K'ston-on-Hull, W.) Pardoe, John Mr. Bruce Millan and
Johnston, Russell (Inverness) Parker, John (Dagenham) Mr. William Hamilton.
Baker, W. H. K. Gray, Hamish Taylor, Edward M. (G'gow, Cathcart)
Biggs-Davison, John Hamilton, James (Bothwell) White, James (Glasgow, Pollok)
Braine, Bernard Hornsby-Smith, Rt. Hn. Dame Patricia
Campbell, I. (Dunbartonshire, W.) Kimball, Marcus TELLERS FOR THE NOES:
Galbraith, Hn. T. G. McElhone, Frank Mr. William Small and
Galpern, Sir Myer Monro, Hector Mr. Tom McMillan.
Gilmour, Sir John (Fife, E.)

Whereupon Mr. SPEAKER declared that the Question was not decided in the Affirmative, because it was not supported by the majority prescribed by Standing Order No. 32 (Majority for Closure).

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

Debate to be resumed upon Friday next.