HC Deb 11 July 1975 vol 895 cc982-1010

Order for Second Reading read.

2.26 p.m.

Mr. Jack Ashley (Stoke-on-Trent, South)

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

The purpose of the Bill is to secure action for a section of the community who have suffered seriously from the worst possible kind of violence. It is a significant minority. The figures vary, but I estimate that about 25,000 women at least suffer from habitual serious brutality. Society cannot view that situation with anything but the profoundest concern.

Since I first raised this matter two years ago, there have been some heartening developments. In that time, the magnificent work of Mrs. Erin Pizzey and of Chiswick Women's Aid has been supplemented by a number of other centres. The work of Mrs. Pizzey was pioneering work of the first order. It was she who first identified the problem, who first recognised the seriousness of the situation and who first did something practical by establishing the Chiswick aid centre. As a result of that magnificent pioneering work, the whole nation has now come to appreciate the significance of the problem.

Since Mrs. Pizzey gave hard and practical encouragement to the women who suffer from violence, and since I raised the matter after speaking to her and the battered women involved, 30 sanctuaries have so far been established throughout Britain by local authorities or voluntary associations. That represents an important advance. It is by no means enough, because we need a sanctuary for battered wives in every town and city in the land. That is a vital prerequisite to beginning to solve the problem, but the first development is that a large number of sanctuaries are being developed. The second is that the Government and local government are now interested in this problem. As a result, many measures are now being taken which I hope will bear fruit.

The third development has been the establishment of a Select Committee. I do not propose—nor would it be in order —to comment on that Committee's work. The fact that it is now sitting and receiving evidence from so many people is a very heartening development indeed.

With my Bill I propose to deal only with one aspect of this intractable problem, because already I have put forward a comprehensive 15-point plan for dealing with the multifarious problems of battered wives. That included action by the police, solicitors, the Law Society, social services, local government housing officers and many Government Departments. I realise that, although it would take time to accomplish action on this large scale, at least the House of Commons and the public are now aware of what is required. What baffles me about this whole problem, about my Bill in particular and all these problems of battered wives in general, is the astounding complacency of the House of Commons and, indeed, of the public.

It really is beyond comprehension that people can be more concerned about beagles than they are about battered wives. I am very found of dogs, and beagles are magnificent animals. They should not be compelled to smoke. I am all in favour of action on the ground. But why do so many millions of people become outraged at a couple of beagles smoking when no one is concerned about the battered wives? What has gone wrong with our values? The whole nation has gone crazy, simply neglecting the problem of battered wives in this way. By all means let us protect beagles, but beagles and other animals come a very bad second to the problems of battered wives.

I believe that people are complacent, frankly, because they do not understand the subject. The subject is not one of normal domestic dispute between man and wife. I argue with my wife or, to put it more correctly, she argues with me, in a normal domestic dispute, and I have no doubt that many Members argue with their wives, or their wives argue with them. But the subject of the Bill is not normal domestic dispute. It is one of brutality, of thuggery and mugging in a house as distinct from on the highway. When a man or a women is the subject of violence on the highway the police, naturally, are concerned. So are the public and, I am glad to say, the House of Commons. But when women are subject to violence in their own homes, no one wants to know. I think that this is wholly wrong.

I emphasise that I am speaking not of normal domestic disputes but of real brutality—of beating, of burning, of battering, of the breaking of bones and the crushing of spirits. That is the problem to which I want the House to address itself.

Strangely enough, this is the only crime in relation to which the victim suffers in a dual sense. In most cases of crime the victim suffers and then society plays hell. In this case the woman is not only battered. She also in many cases loses the possession of the home, and very often the children lose the possession of the home. The man who commits the crime not only gets off scot-free in many cases but retains the possession of his home.

This is the central issue of my Bill. In many cases, as a result of violence, someone must lose the home. Violence very often results in the loss of the home, and I suggest to the House that the question of who leaves must be decided. My Bill is designed to ensure the reversal of the present situation. The shoe should be placed on the other foot. The woman should retain the possession of the home, and the man who has done the battering should have to seek sanctuary elsewhere. In other words, the attacker should lose possession of the home, and the person attacked should retain possession of it. It is the man, with the greater earning power, who should be forced out of the home, and the woman, who is relatively poor, who should retain possession.

I know that the Bill will he opposed by various hon. Members, and I can understand their points of view. I think they would want me to try to clarify the various points in my Bill. How do I define "violence"? Quite obviously, there is a vast range of violence, and there is a very heavy penalty, because the loss of a home to a man can be a serious loss. I define violence, for the purposes of this Bill, as meaning grievous bodily harm. The courts have a very clear responsibility when grievous bodily harm is found to have been inflicted. I am saying that when a man is guilty of grievous bodily harm he should also simultaneously and automatically, if the wife so applies, lose the possession of his home.

Secondly, what is meant by "possession"? Does it mean ownership or occupation? My interpretation is that it means occupation, so that the man would retain the possession of his home but would be deprived of the occupation of it.

Thirdly, what time factor am I thinking about in the Bill? I do not want this to be for ever, but I want to be realistic and recognise that there must he limits. The limits, which I should be happy to discuss in Committee, would be, first, that after remarriage of the woman the husband would be entitled to apply for a review of the order. That would be the first ground.

The second ground would be when the children are no longer dependent on the mother. That would be the second basis on which the husband could apply for a review of the order.

The third ground would be when cohabitation between the woman and another man has been proved. I am uneasy about the cohabitation principle, because I have long been an opponent of any rules or regulations based on cohabitation. Such rules inevitably have the flavour of snooping. I put this forward in order to try to show the House that I am sincere and am prepared to lean over backwards in trying to win support for the Bill. I am not anxious to penalise any man unduly, but I firmly believe that the limited provisions of the Bill are vitally necessary if justice is to prevail.

I hope that the House will look favourably upon the provisions of this Bill. I believe that it is entirely wrong that a woman who has been the subject of violence should not only have had to suffer in that way but also lose her home, as she does so often now. I believe that we really must reverse the present situation, and ensure that, if anyone has to seek sanctuary, it should be the aggressor, not the victim.

2.40 p.m.

Mr. Ronald Bell (Beaconsfield)

I feel that this is one of those Bills which are put forward on a Friday, for reasons which one understands very well, and one realises the motives which have led the hon. Member for Stoke-on-Trent, South (Mr. Ashley) to devise the Bill and to put it forward. However, I think that it is not a Bill which the House should support or to which it should give a Second Reading.

There is a considerable temptation for all hon. Members on these occasions to take evasive action—it seems to have been taken quite effectively today—and to say what is undoubtedly true: that this is virtually the end of the Session, that there is no more Private Members' time and, therefore, that the Bill could be allowed to slide through on Second Reading because it could not go beyond that stage anyway.

I do not think that that would be a satisfactory course, because there is a cumulative process here and it is often said afterwards in later Sessions that a Bill to achieve a certain effect, whatever it might be, was given a Second Reading on several previous occasions but that there was no time allowed it to go forward on to the statute book. This begins to give an aura of respectability to a measure which is not a practicable legislative proposal.

The hon. Member for Stoke-on-Trent, South has put forward a Bill because he is shocked when he comes across individual cases where a wife has been badly treated. He described the Bill as one applying to cases where bones have been broken, where spirits have been crushed, where grievous bodily harm has been done and so on. But, of course, one has to deal with a Bill like this as one sees it. The Bill says: Where … a man has been convicted of an act of violence …". That means any act of violence, however slight. It has nothing to do with the breaking of bones, the crushing of spirits or grievous bodily harm. It may be said that that is true but that the hon. Gentleman, in moving the Second Reading, gave a quite different definition—that of major grievous bodily harm—and that it could be changed in Committee. With respect, I do not think that anything quite as fundamentally different as this is apt for the process of change in Committee. What is more, we have reached the point in the Session which means that there will not be a fruitful Committee stage. We have, therefore, to decide whether to give approval in principle to the Bill as we find it.

The hon. Gentleman said that he understood "possession" as occupation rather than ownership. I agree that "possession" could mean that. But here he uses what is a novel expression in our law—"complete right of possession". I am not sure where that would lead. I do not suppose that the hon. Gentleman is sure about it, either, because it is not a term of art in law. I suppose that it could even be equated to a tenancy in fee simple. I do not pretend to forecast that it would. In any event, however, the distinction between "ownership" and "occupation" has reality only to a freehold or to a long term of years. In the kind of case which might arise here there would be an ordinary short, periodic tenancy where the right of possession was everything and there was really nothing else left at all.

Still on the wording of the Bill, I must point out to the hon. Gentleman that the Bill is mandatory. He did not mention that in his speech, though I am sure only because of inadvertence. When a wife applies for an order, the Bill says that the court "shall" make it. When that is combined with the fact that any act of violence is all that is necessary—and a slap is an act of violence—if there is a conviction for it and the wife then applies for complete possession of the matrimonial home, a court will have no discretion. It will have to grant it. With respect, this does not make sense. It is another matter entirely to empower a court to make such an order in extreme circumstances.

The Bill as presented to the House on Second Reading is absolute in each of the three stages—any act of violence, the mandatory making of an order, and complete right of possession. That is all that there is in the Bill. There is nothing else except the citation clause—and if that were changed in Committee we would finish up with a different Bill.

I hope that the hon. Gentleman will not feel that I am making a lawyer's speech and showing a total lack of sympathy for people who are ill treated. It is not that at all. We may feel strongly about people who are ill treated, but we still have to regard a Bill before Parliament as a legislative proposal and to ask ourselves what it will mean if it becomes law and has to be applied by the courts.

I suggest to the hon. Gentleman that it is a valuable exercise to draw attention to the plight of those who are ill treated in the home and one which will be appreciated by all who have heard his speech. However, as a specific legislative proposal the Bill is not one which this House can accept, not even in principle.

I want to say a word on the generality of the subject. It needs saying because again it is one of those subjects which are avoided for fear of embarrassment. I think that hon. Members prefer to leave these topics if they are not forced into participation in them. We have all had letters from Women's Institutes and other bodies which obviously feel strongly about the maltreatment of people inviting us to support this Bill, with which I think they must be unfamiliar.

I regret the growth of the use of the word "battering". It is becoming a political cliché of our time. The word has no precise meaning, and it is not a good one to use in any precise context. What is a battered wife or a battered baby? It is not a word which has an exact meaning. The hon. Gentleman spoke of grievous bodily harm. That has an exact meaning. However, it is not very appropriate in this case, because a person can be convicted of grievous bodily harm without intending to do it. All that is necessary is the intention to do harm. What happens usually is that it turns out to be more serious than expected and results in grievous bodily harm.

The word "batter" is a journalistic word and it has no place in legislation, not even in a title. It is not an aid to thought, whether we speak of babies or of women. It is an emotive word, and if there is one thing that we suffer from at the moment it is the activities of pressure groups who get hold of a phrase like this and push a cause without very close scrutiny of its real merits.

My only experience of this, for what it is worth, was in earlier years after the war, when I had come back from the Navy and was in practice at the Bar and used to do a lot of matrimonial work. I got the impression that the operations of the State are not very beneficial to matrimony. We all know that things go wrong inside a marriage, but when the State comes in it is rather like a blundering elephant. It has tremendous power for harm and very little for help. The same is true of the intervention of the State between parents and children.

I believe that a good deal of the juvenile delinquency in the two generations since the end of the war has been accounted for by the weakening of the position of parents in the home by legislation and by social work, and even by such well-meaning bodies as the National Society for the Prevention of Cruelty to Children. I felt tremendous sympathy with the West Indian parents, living I believe in Lambeth, when recently a judge referred to the prevalence of "mugging" by coloured youth of white people. That may be true, but what struck me was that the West Indian parents spoke almost in despair of the collapse of family discipline since they came to this country. They could not control their children because they had come to a country in which, apparently, the concept of parents controlling their children was a dying concept.

I believe this is in large measure due to the weakening of the position of the father in particular in the home but also of the parents collectively. We in Parliament, who are, after all, the authors and certainly the authorisers of this kind of intervention by the State in the home, have to ask ourselves some very searching questions: whether on balance, putting things together and looking back over the last 30 years, we have not done more harm than good, and whether, for example, we are not in large measure responsible for the quite appalling divorce rate this year and last year. Whatever our motives may have been, the result of our dispensation has been, apparently, the impending collapse of the family system. I therefore ask the House to look at this kind of Bill with great suspicion, however good its motives, and to look at its essential element.

It is the physical act which founds everything in the Bill. The hon. Member for Stoke-on-Trent, South, in introducing it, spoke of a breaking of bones and a crushing of the spirit. What about the crushing of the spirit that operates the other way? It is the man, on the whole, who commits the physical act, but crushing of the spirit can operate both ways. Women have their own ways of wounding men and the reaction of the man may be physical. That starts off the operation in the hon. Gentleman's Bill and all the background has no place. The law simply says "Your wife may have driven you to the point of desperation, but you struck the blow. You are convicted of an act of violence and you are turned out of your own home in perpetuity". That does not make sense, does it?

Suppose that we were to have a Bill which tried to do the opposite and operate where a woman had been convicted of mental cruelty. Of course she cannot be, for there is no such offence, because the law is, on the whole, made by men to regulate men, so we have always treated women very gently in this matter. Suppose, however, that there were a Bill to say that if there was an offence on the part of the wife of having caused mental cruelty to her husband and having provoked him and she was convicted she should be ordered to be excluded from the matrimonial home in perpetuity, mandatorily and without discretion. We should regard that as a very odd Bill and a very foolish thing to do.

I invite the House, whatever feelings of sympathy hon. Members may have and however much they may have been circularised by women's institutes and so on, to take an astringent view of a proposal of this kind, laid before the House on a Friday afternoon, and to say that this is not a case where Parliament should give even its apparent approval in principle to a Bill which, whatever the motives behind it may be, is not a good example of the use of Parliament's power.

2.56 p.m.

Mr. Edward Lyons (Bradford, West)

My hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) has done very valuable work in drawing attention to some of the ways in which women have an inferior status and suffer in their relationship with men in our society. Therefore, I welcome the attempt that he has made in arranging for this Bill once again to demonstrate his feelings on that issue and to concentrate public attention on the inferior status, in many ways, of wives. It is absolutely right to say that wives are too often beaten. It is certainly correct to say that the police often do not prosecute when they should because, after all, they do not want to interfere, with their manifold other duties, in a domestic situation.

It is also true that many courts, particularly magistrates' courts, take the view that in criminal charges against men for striking their wives they should be treated leniently because, after all, it is not quite the same thing as doing it to a stranger. One is reminded of a story that used to be told in a part of Yorkshire some 25 years ago in relation to charges of incest. Juries in a particular area refused to convict because half of them did not believe that it could happen and the other half were doing it themselves.

For all these reasons one understands why the hon. Member has brought the Bill before the House, but it is not about battered wives. The only mention in the Bill of battered wives occurs not in the substance of the Bill but in the Title, which refers to this as being a Bill about battered wives. In the Bill itself and the preamble the term does not occur, nor does it appear in the text in relation to anything which is to happen under the Bill.

I would have thought that in bringing in the Bill at a time when more and more we are aiming at equality of the sexes the Bill should have referred to "battered spouses", and everything in it should have been reciprocal between the sexes. If there were wives who battered their husbands, in the eyes of my hon. Friend the Member for Stoke-on-Trent, South they could do so with impunity and keep the house. My hon. Friend should have observed that principle of equality.

What I object to is that the Bill does not mention children. When one is considering what should happen to the matrimonial home, one is less worried about the spouses because, if they are able-bodied and can work, they can do something about it, be they male or female. The real issue is what happens to the children. If the woman has children she does not want to leave them. In those circumstances she might endure bad conduct by her husband for the sake of the children, just as a husband might endure bad conduct from a wife.

The test that the court should pursue in considering dispossession of the matrimonial home is how the child will benefit or suffer. That should be the prime consideration. There is no such test in the Bill, and the word "infant" or "child" is not mentioned.

Let us take the case, for example, of a woman who is persistently flighty and whose husband has forgiven her 15 times in 15 years for association with other men. One night he may lose his temper and inflict a single act of violence which, under the Bill, is sufficient for him to lose possession of the house. The house may be worth £10,000 or £20,000 and he has saved for it over most of his married life. According to the Bill, although he has been greatly provoked, one act of violence when perhaps he has been goaded beyond endurance will be sufficient to lose him the house without any discretion in the court to refuse to make the order.

The whole trend of matrimonial law in Britain is to give greater and greater discretion to the judge. Recent legislation in 1970 and 1971 gives more discretion than ever to judges to make a just apportionment of the matrimonial home, the chattels and the wealth. The whole trend is reversed in the Bill. No longer will the judge be given discretion. No longer can he look at the whole panorama of the marriage which is unfolded before him. He has to say "He slapped her face, conviction. Out he goes". The fact that she was slapped because she had performed a welter of actions that did not consort well with matrimony does not matter.

My hon. Friend said that he would insert amendments in the Bill to cater for some of these matters. The Bill is a very short one, and it seems to me that it needs to be made seven or eight times longer. For example, there is no rule-making procedure. In all Acts of this sort provision is made for someone to make rules as to which court the action for possession is brought in, how to go about it, and so on.

In the Matrimonial Homes Act 1967, which enables one spouse to register a charge on a matrimonial home to prevent the other spouse disposing of it, there are provisions for the charge to come to an end. It comes to an end on a decree absolute or on the application to a court of the spouse against whom the charge is registered. The court can look at the facts and say that it is wrong to register a charge and revoke it. Not so in this Bill; there is no machinery for revoking the charge.

We must remember that if a man has to leave his house—and it may be right that he should—he cannot be left on the street. He is entitled to look for other accommodation. Often when a marriage breaks up it is necessary to sell the matrimonial home so that the proceeds can be divided and both parties have a chance to obtain other accommodation. Under the Bill, once a wife has possession she has the right to remain there for ever, with the result that the husband has no bargaining power. He cannot even ask for half the value of the house or even for £1,000. In the end, he might be reduced to saying "The house is worth £10,000, and the court would have given me half if you had not got this order against me. Now you have the order, you can stay there for the rest of your life and I had better take £200 for my share". That must be wrong. In matrimonial law power should reside in the court to look at all the facts on taking this decision. It is a cardinal error of the Bill that it is mandatory on the court to make the order and it cannot refuse to do so.

The court which tries the criminal offence may be inhibited from convicting the offender. A magistrates' court may hear an allegation that a husband has struck his wife. It may emerge from the evidence that there was a great deal of provocation and that the husband endured a great deal over the years. It will be drawn to the attention of the court that if the man is convicted, albeit on the plainest evidence, he will lose his home. The court may decide not to convict him, even though the evidence shows that it should do so. The court may say "From the evidence which we have heard this man is a better father to the children than the woman is mother. Why should we break up the home? Why should we take this action?"

I take the case of the wife who knows that she has infuriated her husband and that he acted out of character on the one occasion to which the Bill refers. She may say "I have an incentive not to rejoin my husband. Why should I? I now have my husband 'cold'. I can obtain a conviction against him. That will give me the matrimonial home. I shall not carry on with this marriage", although otherwise it might be worth doing so. She might say "I shall go off with my boy friend". My hon. Friend has said that the Bill will be amended so as to include provisions for cohabitation. There is nothing in the Bill about that. That is an indication of what happens when Government draftsmen do not help in the drawing up of a Bill.

The Matrimonial Proceedings and Property Act and the legislation for the maintenance and financial provision for spouses of the early 1970s are long, as this is a complicated subject. The simplicity of this Bill indicates a lack of appreciation of what is at stake and what is involved. I appreciate the concern of my hon. Friend for wives who are struck by their husbands. I share that concern. However, this Bill is not suitable legislation for inclusion on the statute book.

The Bill does not concern battered wives. The expression "battered" came into prominence as a result of cases involving the battering of children. The word "batter" does not mean a single act of violence. It means a persistent course of conduct. I have been involved in prosecuting and defending cases of battered children. The word "battered" means a mindless, almost compulsive, battering by a man—the husband, the father, or the mother's boy friend living in the house—of a child or children for reasons which he cannot explain, in a heavy and brutal way, time out of number, but not because he is resentful of the child. It is a curious syndrome. Doctors have much to say about it at present. We know what we mean when we talk about battered children. However, a battered wife is a different concept.

A battered wife is a woman who is beaten either because the husband believes that she is not acting correctly, or, more probably, because the husband is suffering from defects of personality and temperament, or because he is overborne by the frustrations of his ordinary life. He is told off by his foreman at work and he returns home and hits his wife. Perhaps his favourite football team loses by two goals to one, and as a result he batters his wife.

I use the word "batter" in the sense used by my hon. Friend—meaning to beat a wife. But the two meanings are not the same. There is a question of degree involved. If the husband continues to beat his wife the matter should not be dealt with by the domestic courts but should go to the criminal courts. The husband should be punished. However, the concept of possession of the matrimonial home relates not to criminality but to matrimonial law. It should be kept in the domain of matrimonial law. To import this concept of civil and matrimonial law into criminal law is an unwise and retrograde step. It is equating it with a fine, imprisonment or a suspended sentence.

A court that might fine a man £100 for an offence would at the same time be awarding the wife a kind of damages and imposing a fine against the husband which could amount to £5,000 or £10,000. This is putting things out of proportion. If the court feels that a certain fine is required for a particular criminal offence it should impose it.

There is a restitution concept in criminal law. A convicted person cannot be ordered in a magistrates' court to pay more than £400 to a person whom he has assaulted. He may have committed grievous injury to a man but there is a limit on the compensation that can be awarded in the magistrates' court. Under this Bill one blow by a husband, who may just possibly have been driven almost mad over 10 or 15 years, could cost him a life's work. That is not to say that my hon. Friend is not right when he says that nearly all violence in the home comes from the husband. I believe that is right. A man seems to have little regard for the human rights or the dignity of his wife. All too often he resorts to his fists. He seems to think that it is an example of manliness, that it proves his virility.

Whatever the reasons, the Bill does not represent a proper way of punishing him. I agree with my hon. Friend that the law dealing with joint ownership and joint tenancy when there is a matrimonial dispute should be reviewed. Local authorities will change the tenancy from a joint to a single tenancy when the wife has obtained a matrimonial order against the husband. In that respect the Bill is unnecessary. I agree that in the private home there is no protection and the wife can find herself in great difficulty. There ought to be a much clearer and easier way of dealing with the situation and deciding who has the matrimonial home. This should be dealt with in the matrimonial or civil court when the marriage breaks up. That seems absolutely right, and it is an area which should be explored.

My hon. Friend, with his indefatigable energy, would do well to try to bring forward a Bill in the next Session to clarify the rights of the joint spouse when the marriage breaks up, but without reference to the criminal courts. That seems to be the right way of dealing with it. I have one paramount reason for believing this. What happens when the wife is too frightened to take the husband to court? The Bill demands a conviction. In my experience of divorce cases involving the most atrocious cruelty, the wife has never taken the husband to the criminal court. To the matrimonial court, yes. To the criminal court, no. She is terrified of complaining to the police. When she does the police say "Matrimonial dispute. Nothing to do with us".

The result is that most wives who are beaten up regularly do not mount a criminal prosecution against their husband. There is no conviction. In such circumstances they would gain no benefit from the Bill. What my hon. Friend or the Government ought to do is to bring forward a Bill covering all wives—and husbands—who are beaten up regularly and need protection, not just those very few who manage to obtain a conviction against their spouse in the criminal court.

3.13 p.m.

Mr. Michael Shersby (Uxbridge)

Although the Bill clearly contains many defects, it at least provides a useful opportunity for the House to discuss the problem of marital violence and the so-called problem of battered wives. There is nothing particularly new about this problem. Presumably it has been with us since the earliest times. What is new is that today there is public interest in it and a desire to help the unfortunate women concerned. Public interest has also been aroused by the work of the Select Committee on Violence in Marriage, whose report we await with considerable interest.

I would like to tell the House something of the background to this problem as it exists in my constituency of Uxbridge, which is part of the London borough of Hillingdon. Having seen the Bill, I made it my business to find out the background to the problem. I thought that it would help me to evaluate my attitude to the Bill and respond to the many constituents who have written to me on this subject.

There has been a good deal of concern in recent months in the London borough of Hillingdon about the children of violent households who are put at risk, both physically and emotionally, by the violence which exists between their parents. This point was raised earlier and I entirely agree that the House should direct its attention to the problems of the children of such parents.

The suggestion has been put forward to the local authority of Hillingdon that, depending on the size of the problem, there might be a need to provide accommodation and advice specifically for battered wives and their children in order that women can have a refuge in which to sort out their problems and decide on a future course of action to protect the children who might be involved. Accordingly, an interesting research document has recently been published by the social services department. One of the results of that research might be that we in Hillingdon have a refuge of the kind I have just described.

One of the great difficulties that arises is the difficulty of knowing how best to deal with battered wives. The fundamental difficulty is in ascertaining the extent of the problem.

In the past two days, I have carried out some research into its extent in my constituency. It is difficult to evaluate the problem. It requires detailed consultation between the local authority, its housing department and its housing advice centre and the area health authority, the Citizens' Advice Bureau, the Samaritans and so on. The borough of Hillingdon found after consultations with these various schools of thought that a complete picture was not forthcoming, because there are inevitably considerable overlaps between one agency and another. However, in the final analysis it seemed reasonable to plan for about 12 cases a year.

I mention Hillingdon's experience to illustrate the considerable research that has been undertaken in this outer London borough and to enable it to be compared with the size of the problem that may exist in some of the big cities in our country. In my constituency I have to cater for approximately 12 cases a year. I have discovered that it is difficult to sort out the difference between the number of referrals to the various social agencies that exist and the actual number of cases which involve wife battering.

The Bill before us today is well-intentioned because of the reputations of the hon. Member for Stoke-on-Trent, South (Mr. Ashley) and his colleagues who have sponsored it. It has, however, a number of considerable defects, some of which have already been referred to by hon. Members. It is to those defects and omissions that I should like in a friendly way to draw attention this afternoon.

The Bill provides simply that the right of possession of the matrimonial home shall be transferred to the battered wife following conviction of the man. That is a quite sweeping power. It makes no mention of various differences—for example, whether the matrimonial home is a council house. It makes no reference to the property rights of men and women or to houses in the private sector which are mortgaged.

It is not clear from the Bill whether possession means ownership, although the hon. Member for Stoke-on-Trent, South indicated earlier that to his way of thinking possession meant occupation. There is no indication in the Bill whether occupation is to be transferred on a temporary or a permanent basis. Although the hon. Gentleman has referred to the desirability of its being on a permanent basis, he gave no precise indication of the length of time he had in mind.

There is no mention in the Bill of the specific position of council tenancies. Are they to be transferred to the battered wife temporarily or permanently in the case where a conviction is obtained? Is this to be approved by the local authority, or is it a matter which shall rest entirely with the courts? As I understand the Bill, from the way it is drafted the matter will rest entirely with the courts. That is a subject on which my local authority would like to have a say because of its deep involvement through its social services department.

It is clear, therefore, that the effect of the Bill, if it were enacted, on a council tenant is such that local authorities should be consulted and that they should have a part to play in deciding the fate of the matrimonial home. I believed that most councils regard the man as the tenant, whereas only a few insist on joint tenancies. That is a point which could well do with examination. The hon. Gentleman may feel that the position of local authority tenancies is something which could usefully be examined with a view to encouraging local authorities to offer joint tenancies to husband and wife.

Another question which arises is what happens to the man tenant, owner or mortgagor if and when possession is given to the battered wife. I assume that unless he had other children, perhaps of another marriage, he would become completely homeless and that there would not be any obligation on the local authority to house him. Until one can give an answer to this sort of question, it is difficult to know whether possession of the matrimonial home by itself will really help the battered wife as much as the sponsors of the Bill clearly hope will be the case.

Surely the greatest problem that any wife who is the victim of this type of assault experiences is the need to have protection. This can happen only where she can find a home where she is protected from further assault. The majority of wives living in private homes find that their first refuge is with their relatives, who can support them for the time being. Very often they can then seek redress through the courts and can obtain their share of the proceeds of the matrimonial home if and when it comes to be sold. This category of wife would then find herself with some funds at her disposal. She would be able to think of buying again and would be able to seek help from the local authority or perhaps from a building society in obtaining a new mortgage, in such a way as to enable her to rebuild her life. So much depends on whether or not the wife is able to work to earn sufficient to meet the mortgage repayments and to provide for her children.

One of the very real problems in this area is that even with possession of the matrimonial home the man can often return and a further assault can take place, so that possession by itself might not necessarily be the answer to the problem. In a hostel, for example, there is more protection than in the matrimonial home in many cases. The hostel, as I have said, provides a refuge. Such hostels are usually situated in a relatively few locations where the police are aware of their existence and are able to keep them under supervision. This in itself provides a real degree of protection to the battered wife. I am therefore firmly of the opinion that temporary refuge is essential, that it is an early priority and that possession of the matrimonial home should come only at a later stage.

In considering the question of possession as it is provided for in Clause 1, I should like to know whether possession would make the wife a tenant of a joint household. This is a very important point, and it is certainly not clear because the hon. Gentleman said that to his way of thinking possession meant occupation. If the wife is to be the tenant of a joint household, presumably if she sold the home, if that were possible, she would have to share the proceeds with her husband. It seems possible, therefore, that a battered wife might be better off with a temporary order if the man were off the scene for example, if he were in prison.

I hope, therefore, that the hon. Gentleman will deal with this difficult problem of ownership if he is given the opportunity to reply to the debate. I know that he dealt with it in his opening remarks, but perhaps he or one of his hon. Friends will expand on it. For example, is it proposed that a man's property rights are to be completely expunged if his wife is given possession? This question must be dealt with. It has been raised by my hon. and learned Friend, the Member for Beaconsfield (Mr. Bell) and others. The situation is certainly not clear. The Bill is defective because it makes no distinction between possession and occupation.

If the Bill is to be given a Second Reading today, I believe that consideration should also be given to doing something for battered wives much earlier along the line—in other words, before they get to the position of applying to the courts for possession of the matrimonial home.

Surely the real gap in social provision at present is that of dealing with the problem of assault, the problem which arises immediately after assault and the need for the battered wife to have protection in a suitable refuge. The problem clearly needs a comprehensive solution. That is one reason why I think we should await the report of the Select Committee which is looking into this subject. When we have the report of the Select Committee we shall be able to consider this problem again because, as the hon. Member for Stoke-on-Trent, South knows, by the inevitable mathematics of parliamentary time this Bill cannot pass through all its stages in the present Session of Parliament.

I should like to express my gratitude to the hon. Member for Stoke-on-Trent, South for giving us the opportunity of discussing this important problem. But we need a good deal more information yet. I look forward to getting that information from the Select Committee. Today's debate has provided us with a useful opportunity to discuss the problem and to return to it in a positive way later in the year.

3.28 p.m.

Mr. Christopher Price (Lewisham, West)

I should like to pay tribute to my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) for raising this subject. I realise that a Select Committee of this House is discussing this whole matter. Nevertheless, it is useful to have debates of this kind in the House, even while a Select Committee is sitting, in order that public opinion may be better informed and the Select Committee helped by our discussions here.

I am glad to make a contribution to the debate since Lewisham's first hostel for battered wives is in my part of the borough. Indeed, Lewisham was among the first of the London boroughs to set up one of these hostels. Although I am convinced that setting up refuges—hostels—for women in this situation is an important part of public policy, it is clear from the problems which have been thrown up in the first year of operation of the Mayow Road Hostel in Lewisham that it is not the whole answer. To borrow a phrase from the Prime Minister, we need a battery of weapons—that is perhaps not the happiest of phrases in this context—to deal with what I suspect has always been a serious problem, but a problem of which the public are becoming aware. When the public become aware of these problems, it is incumbent upon Parliament to take action.

The Bill has been criticised for its simplicity. Would that that criticism were made of more Bills! I wish that we could have one or two more simple Bills. This is indeed a simple Bill. It is, if I might echo Pope Gregory or whoever said it, sancta simplicitas. It has only a couple of clauses in it. However, it is none the worse for that.

Whenever a perfectly straightforward Bill is introduced which in plain English says just what ought to happen, inevitably we get one lawyer after another explaining from their long experience in the law courts why it is impossible for any Act of Parliament to be stated in perfectly simple straightforward terms. I am intent on simplifying the legislation.

One or two hon. Members, including the hon. and learned Member for Beaconsfield (Mr. Bell), who apologised to me for having to leave, have criticised use of the epithet "battered". It is a word which has crept into common parlance and is about to creep into parliamentary and legal jargon without having a clear meaning. The hon. and learned Gentleman said that nobody knows what a battered wife is. If he would come with me to the hostel for battered wives in my constituency, it would be obvious to him what it meant from the stories which the women told. It is like the story about the difference between an elephant and a letter box: we know an elephant when we see one. I am sure that battered wives are a clear and distinct phenomenon, and it is plain that the phrase will obtain a clear legal meaning as it is used in the courts.

I do not wish to engage in the nitpicking in which previous speakers have engaged, partly because I am not a lawyer and partly because the details of the Bill can be discussed in Committee, if it reaches there. Everyone is assuming that this Session will end in October, but there is no law of the Medes and Persians, about it. There is no constitutional absolutism which states that Sessions must end in October. In rapidly moving situations such as that in which we are now, all sorts of things can happen. Therefore, we should not make too many absolute assumptions about the lengths of Sessions. Assuming that the Bill gets to Committee, there will be chance to deal with many of the criticisms that have been made, such as that about the meaning of the word "violence" and the absolutism of the words "the court shall make such an order".

I am very much in favour of the Bill because it backs up three principles for which I have been fighting for many years. The first is that of women's emancipation. I was very keen that the Abortion Bill of 1966 should be passed, not so much for the reasons which other people advanced, but because I felt that it swung the balance of power slightly further towards women and away from men, with whom it had historically remained over the generations.

The Bill is an expression of a genuine change in public opinion that women's emancipation in terms of the franchise in the late 19th century and early 20th century did not go far enough towards genuine emancipation and many of the Women's Lib Bills being introduced now go towards women's emancipation in a much more real sense than did the sort of emancipation which women thought they were getting 40, 50, 60 or 70 years ago.

I am also in favour of the Bill because it stands for the preservation of the family. The hon. and learned Member for Beaconsfield said he was against the Bill because he believed in the preservation of the family, but I am very keen on the preservation of the family and in this sort of situation, family, in reality, means the mother and her children. It means keeping them together in the sort of housing in which they can support each other. Where there is a matrimonial home in which this can take place, we should declare legislatively that this should happen whenever possible.

I also support the Bill's attitude to housing. There has been much talk in the debate about the property rights of men and the degree to which the Bill would erode them. If the Bill does erode the property rights of men, so be it. I have fought all my political life for housing to be treated as a social service and not as part of the property mechanism of the country. The Bill backs up the concept of our housing stock as a social service and not as part of historic property handed down from one person to another. This is absolutely right.

This is not a perfect Bill and, if it gets into Committee, it will have to be amended, but I think my hon. Friend the Member for Stoke-on-Trent, South has done a tremendous service to the House in introducing the Bill and making this debate possible. I wholeheartedly support him in his efforts.

3.38 p.m.

Mr. Carol Mather (Esher)

The House finds itself in a difficult, but not untypical, situation. We have found in the past that a problem arises in society and gets a great deal of publicity, there are demands for action, we set up a Select Committee to study the problem and an hon. Member introduces a Bill which arrives here in advance of the Committee's report.

We have seen that the House is divided on the Bill. I think the hon. Member for Stoke-on-Trent, South (Mr. Ashley) has done a service to the House in bringing forward his Bill. I think he realised it had no chance of reaching the statute book, but felt the problem should be aired. If legislation is necessary, it must be brought in after proper consideration and we have set up a Select Committee for this purpose.

Various opinions have been expressed today about the operation of the Bill. My hon. and learned Friend the Member for Beaconsfield (Mr. Bell), from his legal background, made various criticisms, in particular that one act of violence would lead to the husband losing the home of the marriage. Also, the hon. and learned Member for Bradford West (Mr. Lyons), made similar criticisms from a strictly legal point of view showing that the provisions have to be carefully examined if this is to be sensible law.

My hon. Friend the Member for Uxbridge (Mr. Shersby) spoke of his personal experience. Like many of us, he has been receiving letters from women all over the country. He related his speech to children, and said that the effects of the Bill on children must be considered. He also drew attention to the difficulties of making over a home when one is involved in a mortgage or if it is a local authority home in which the husband probably holds the lease.

Much more consideration needs to be given to these matters before the Bill is passed. We should ask several questions. First, is this a suitable subject for legislation, or can it best be dealt with through the social services? Second, might one find that after a possibly violent man had been driven from the home, the woman became a further victim of his attacks, because of his resentment? Finally, most hon. Members will agree, I think, that the best approach is to let the Select Committee do its work and then consider whether a Bill is necessary and, if so, what kind of Bill.

3.43 p.m.

The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)

I congratulate my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) on the characteristically admirable and moving way in which he presented the Bill I think that the whole House agrees with its purposes and motives, but, as hon. Member after hon. Member has said, there are certain practical defects—not only in the drafting but in the way in which these provisions would apply.

As my hon. Friend acknowledge when he was given leave to introduce the Bill in January this year, the Government are aware of the problems and are trying to deal with them. He also acknowledged that there are some obvious defects in the Bill. In particular, it contains an inflexible provision to which several hon. Members have referred.

I agree with the hon. and learned Member for Beaconsfield (Mr. Bell) about the used of the word "battered". It is an inelegant word that would hardly be a great adornment to the statue book. It is a loose term, of slang rather than of definition. I am not at all sure how it has suddenly, in the past few months, become almost a popular phrase. However, as my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) said, the Bill does not deal with battered wives at all.

For many of the reason that have already been given, the Government cannot recommend this Bill in its present form, much as they sympathise with the motives behind it. First, I point out that the problem of violence in marriage—reference has already been made to this—has been the subject of detailed consideration by a Joint Working Party of the Home Office and the Law Commission on Matrimonial Proceedings in Magistrates' Courts. It published a working paper in September 1973 suggesting that in place of the existing cohabitation provision—which the magistrates can insert in a matrimonial order declaring that a couple are no longer bound to live together—the courts should be given power to make a "non-molestation order".

It is, I suggest, significant that the working party considered that it would be inappropriate for such orders to be obtained in criminal proceedings, a view with which I feel sure the House might have considerable sympathy. It is generally agreed, I believe, that matrimonial affairs should be kept strictly segregated from criminal matters and from the criminal courts if at all possible.

Mr. Lewis Carter-Jones (Eccles)

In view of the fact that it now looks fairly obvious that the Bill is to be talked out, and if the state of the law is in doubt, would not it be preferable, while the legal problems are being resolved, for the Government to embrace the Disablement Commissioner Bill, which could temporarily resolve the housing problem of the battered wife?

Mr. Davidson

I appreciate my hon. Friend's point, but the Bill with which he is concerned is not my responsibility. I have to deal with this particular Bill and I must answer some of the points that have been made.

I think it is agreed that matrimonial affairs should as far as possible be kept segregated from criminal matters in the criminal courts. The type of order proposed by the working party would be enforceable by a fine or imprisonment on the model of the injunction which can be at present granted by the divorce court.

The working party also invited views on whether a magistrate should be empowered to attach a condition to a non-molestation order preventing the husband from entering the matrimonial home. Such a condition would not affect the rights of ownership or tenancy of the house and would be without prejudice to any future determination which the superior courts might make as to the rights of ownership and occupation of the home. It would be designed simply to deal with the immediate problem ad hoc.

The working party's recommendations have been warmly welcomed in a consultation on the working paper, and I am happy to tell the House that the Law Commission is now preparing a report and draft clauses on this subject, which the Government and my noble Friend the Lord Chancellor await with interest.

Secondly, as the House may well know, the Law Commission is currently engaged in a broad-based study which covers legal rights of ownership and occupation of the matrimonial home. Its report on this, which will deal with the longer-term aspects of the matter, and the report on matrimonial proceedings in magistrates' courts are expected later this year.

Thirdly, as the hon. Member for Esher (Mr. Mather) has quite rightly pointed out, the Select Committee on Violence in Marriage is at present sitting. Its terms of reference are to consider the extent, nature and causes of the problems of families where there is violence between the partners or where children suffer non-accidental injury; and to make recommendations. I believe that it would be wrong—and I am sure the House will agree with me—to act prematurely and in advance of the findings of the Select Committee. If we pasesd the Bill we would obviously prejudge the very issues which the Select Committee is consdering carefully.

I have pointed out already, as have other hon. Members, that the Bill has major defects in the terms in which it is drafted. Clause 1(1) states: Where—

  1. (a) a man has been convicted of an act of violence against his wife, and
  2. (b) his wife makes application to the court for an order to be made giving her com- 1008 plete right of possession of the matrimonial home,
the court shall make such an order. This provision would require the court to make the order described. There would be no course open to the court but to make the order once the two preconditions were satisfied. Regardless of the degree of violence, regardless of the circumstances in which the violence was committed, regardless of the relationship between the parties, the court would have no discretion but to grant the order.

To deprive the courts of the discretion which they have long held would be highly undesirable. It is a recognised principle in matters of this kind that the courts should be free to deal with each case on its merits. Under the terms of the Bill, they would be unable to do so.

The Bill would also be confined to cases where the husband had been convicted, presumably of a criminal offence. However, it is a common feature of situations where there has been violence committed by a husband on his wife that criminal proceedings are started but are later dropped because the wife, when it comes to the point of going to the court, is reluctant to give evidence against her husband which may result in his being sent to prison. In many cases of domestic violence, no criminal proceedings are instituted at all. The reasons are obvious. The wife does not want to get involved. The quarrel is patched up. She goes to the police, and the police say it is a domestic matter.

There is also the point that this would not provide a speedy remedy. Since there would first have to be a criminal trial, such proceedings would have to be started by the wife, and the offence committed by the husband would have to be proved beyond reasonable doubt.

One further matter that I should mention, though perhaps it is less important, is that under the terms of subsection (1) the wife who is the victim of her husband's violence would first have to obtain a conviction against him before she could obtain an order. In fact, the wife would be much better off under the present law because, in circumstances where there has been grave violence—

Mr. Ashley

I have the greatest respect for my hon. Friend, but I am now beginning to suspect that I shall not have an opportunity to reply to the many fallacious points which have been raised during the debate. I ask my hon. Friend to consider, when he speaks of the provisions of the Bill applying to any kind of violence, that that is quite wrong. I specified in my speech that it would be for grevious bodily harm. What is more, when hon. Members speak of the defects of the Bill, it appears that they did not hear me say that I should be prepared to consider various matters in Committee. If we are to have a Committee stage, all these points can be considered. However, a great many false points have been raised in the course of various speeches—not by my hon. Friend but by other hon. Members. I regret deeply that these bogus points have been raised, because they are not really against this Bill at all. These are points which could be made against other Bills but I specifically said that I had put forward a 15-point policy to be followed. The limitations of the Bill are obvious, but that does not mean that the points that I have previously raised are invalid.

Mr. Davidson

My hon. Friend said that on the definition of violence he had in mind grevious bodily harm. That is a very serious offence, in many cases so serious that it is unlikely that it could be proved by the court. In those circumstances, as my hon. Friend will appreciate, the wife who has been assaulted in a less serious way would not benefit at all by the Bill. Whilst I appreciate what my hon. Friend has to say, I really must assure him—and we have been colleagues for many years—that most of the defects in the Bill to which reference has been made are very real defects. In many circumstances the wife, far from benefiting under the Bill, would be in a worse position than she is today.

Mr. Ivor Clemitson (Luton, East)

On the point of the definition of "violence", is my hon. Friend making the point that the definition is deficient in that a court could include any form of violence, a point made earlier by several hon. Members? Or is he saying that the defect is precisely because the violence is confined to very serious violence, and therefore that wives who may be the subject to considerable violence but violence less serious than grievous bodily harm may not benefit from the Bill? These are two different points, are they not?

Mr. Davidson

Under the Bill as it is presently drafted there is no definition at all of "violence", and violence would be a very difficult word to define adequately. Whilst one or two hon. Members have suggested that the criticisms of the Bill have been lawyers' criticisms, I must tell my hon. Friend that it is the courts of law which will have to interpret the Bill and act under its terms, and unless a really satisfactory definition of "violence" were included in the Bill—one that would include, I suppose, the lesser acts of violence and more serious acts of violence—then, despite the good intentions of the Bill, the very people whom my hon. Friend wishes to protect would not be given the help he desires.

It is only right to tell the House the background against which the Bill must be examined. It is only right to look at the present position of a wife who is assaulted by her husband—and there has been no mention of this so far—and the protection that the law can give her, because the law offers her considerable protection even if there is a serious defect in the law at present. For practical purposes, the present short-term civil relief available is an injunction from a divorce court.

There are two main kinds of injunction, one to exclude the husband from the matrimonial home, and another to order him not to molest his wife and children. The power of courts to grant injunctions is defined in Section 45 of the Supreme Court of Judicature (Consolidation) Act, 1925: The High Court may grant … an injunction … by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do. Order 29, Rule 1 of the Rules of the Supreme Court provides that an application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter"—

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

Mr. Deputy Speaker

Debate to be resumed what day? No day named.