HL Deb 03 July 1913 vol 14 cc751-64

[SECOND READING.]

Order of the Day for the Second Reading read.

EARL BATHURST

My Lords, the Bill to which I am asking your Lordships to give a Second Reading is designed to amend the procedure under the Bastardy Acts with a view to render those Acts more effective in securing payments under affiliation orders. Before going into the provisions of the Bill I should like to explain how it was that I came to take up this subject. I hope your Lordships will not be frightened when I begin to give my reasons that I am going to make a speech in favour of votes for women. Although my taking up of this subject is somewhat allied to that propaganda, I will relieve your Lordships by telling you that I have no sympathy with the movement. The fact is that about two years ago an active campaign was started in our part of Gloucestershire by various associations approving of votes for women. Meetings were held all over the county, and even the cottages were invaded by the missionaries of these organisations. The burden of all their speeches was that women were not sufficiently represented in Parliament and would not be until they had the vote. The next step was that the anti-suffragists held a meeting, at which I was asked to take the chair. I tried, in my opening remarks, to refute the argument that women were not represented in Parliament, and I pointed out that if there was any real grievance which could be removed by an Act, Members of Parliament, if proper representations were made to them, would be only too glad to introduce a measure to remedy that grievance. I further said that if proper representations were made to me personally I would do my best to bring in a Bill dealing with the matter, provided that I agreed with the proposals. Needless to say, no representations at all were made to me.

I then thought that I had better look round myself and see whether there were any grievances under which women suffered which could not be put an end to by Act of Parliament. I had facilities in the matter, and was able to employ a man used to interviewing people. He saw some of the leaders of this movement, and drew up a report which I have in my possession. It is a very interesting report from their point of view, but I will not trouble your Lordships by reading anything from it. I will merely say that there were four heads on which these ladies wanted legislation. Two of them I considered quite unsuitable for legislation; the third was one of which I could not approve, and even if legislation was brought in I could not support it; but the fourth was the subject of affiliation orders, and that appeared to me to be a matter which might be very usefully taken up. I therefore made inquiries with the object of drawing up a Bill, but I soon found that a Bill had already been introduced in another place by Captain Jessel and had been read a first time and printed. The Bill to which I am asking your Lordships to give a Second Reading this evening is practically the same Bill. It is Captain Jessel's Bill with the exception of one or two amendments, to which he agrees. Captain Jessel has devoted a great amount of trouble to the drawing up of this Bill, and if it should be fortunate enough to pass into law it is to him and his friends that every credit must be given. I have said a good deal by way of introduction. I will now come to the provisions of the Bill, an explanation of which will be found in the Memorandum prefaced to the Bill.

I cannot pretend that this Bill carries out the whole of the recommendations which were made by the Select Committee which sat in 1909. To carry out those recommendations would entail a very large Bill. At the same time this Bill will carry out two of their recommendations—namely, the one on page 3 in which they recommend that money paid under a bastardy order by a putative father to the mother of an illegitimate child should be paid through the agency of a third person, and the recommendation lower down that the process should be facilitated by which mothers, guardians, and other persons may recover from the male parent the expenses which they have incurred in connection with the birth or maintenance of the child.

The question may be asked whether this Bill is really needed. I say distinctly that it is, because the law in this matter is very defective. An unmarried woman having secured an affiliation order has to collect the money herself weekly, and if the man fails to pay the only remedy she has is to bring him up a second time before the justices. And it is found in practice that affiliation orders frequently become ineffective because of the unwillingness or inability of the mother to make continual appearances before the magistrates. But even in the cases where the mother does bring the man again before the Court the justices have no power to make him pay; the only means they have of punishment is to send him to prison. That course fails because the woman is thus left still more destitute, much to the detriment of the health of the child. I submit therefore that in many cases the law becomes a dead letter.

I am not going to harrow the feelings of your Lordships by dreadful accounts of poor young mothers who stand waiting outside factory gates on pay day in order to collect the half-crown, or whatever it may be, due to them. I could bring forward many instances. It is, however, unnecessary to do so, as I am sure your Lordships will be able to consider the matter from a purely logical standpoint. I should wish first to convince your Lordships of the justice of the Bill. In the first place I may say that it inflicts no injustice upon men. Affiliation orders are not easily obtained. Magistrates are always most careful before an affiliation order is granted, and if there is any flaw in the evidence the decision generally goes against the woman. Out of 139 cases reported in 1912, not counting those which had been settled out of Court, only 24 affiliation orders were granted. Statistics as to non-payment under the present law are very difficult to get at, but it is well known that payments under affiliation orders tend to decrease and become very irregular and gradually cease altogether. The only figures that I can give are these. Of eleven cases that have been brought to my notice where men were paying money regularly under affiliation orders up to last February, five have already either discontinued to make the payments or have made them so irregularly and of such varying amounts that one can only suspect that the payments will very soon entirely cease.

I do not think I need dilate on the procedure of the Courts, because nearly all your Lordships are justices of the peace and will have had experience of the great difficulties which exist in securing affiliation orders. There is, in the first place, the difficulty of providing the money necessary to secure 'the issue of the summons, and when the summons has been issued very likely the man has already changed his address or left the country. Even if the necessary money should be provided for the mother through some charitable person or institution and she obtains an affiliation order, there is no machinery at present for enforcing the payments under the order. The question arises how can payment be enforced? It is obvious that if the man is asked by the woman herself to pay the money he would not be nearly so likely to agree to do so as if the demand was made by a policeman or some officer of the Court. Therefore I venture to think that the proposal in this Bill that there shall be appointed for each magistrate's Court an officer of the Court (who may be either an officer specially appointed for the purpose or an existing officer of the Court) to act as collecting officer of the payments under an affiliation order, and to pass them on to the mother or to such other person as is entitled under the order to receive them, will be a really effective remedy in this case.

Power is also proposed to be given to magistrates to make an order attaching a weekly sum out of the salary or wages of any man upon whom an affiliation order has been made, and requiring an employer, after notice, to make the deductions specified and send the money by registered post to the collecting officer or other person named in the affiliation attachment order. This clause, I am afraid, may receive some criticism. It is said that possibly the mere fact that an attachment order has been made against a man will lead to his employer discontinuing to employ him. I hope, however, that your Lordships will not take this view. If the man had from the first acknowledged his responsibility and had made some payment for the upkeep of his child, as he should have done, no affiliation order would have been necessary; so that if a man is suffering under an attachment order the fault rests entirely with him for not having originally carried out his responsibilities.

I do not think I need trouble your Lordships any further in explaining this Bill. I am confident that you will see in it a very useful measure, and one which will relieve the burden felt so severely by these poor women when they are in distress. Only last Monday your Lordships had before you a small and useful Bill which received the unanimous approval of both sides of the House and was promised the benevolent attention of His Majesty's Government. I hope that this Bill may be received in the same way. For if these two Bills are eventually added to the Statute Book they will he an addition to the list of useful measures which His Majesty's Government have passed during the present year. And even if one or two Bills which may come before your Lordships' House later in the session should fail to pass this House, I think the mere passing of this Bill and the Money-lenders Bill will prove that the intentions of this House are good and that your Lordships are always ready to legislate for any really true and just cause. I beg to move.

Moved, That the Bill be now read 2a.—(Earl Bathurst.)

LORD GORELL

My Lords, I rise with very real diffidence to address your Lordships because the time in which I have been a member of your Lordships' House is very short, and the more so because I know that I cannot speak with the knowledge of one whose remarks would have been very much more worthy of your Lordships' attention than any of mine. But the Royal Commission of which I had the honour to be secretary, had, among other questions which excited more attention, to consider questions very similar to those dealt with in the noble Earl's Bill, and I therefore venture to think that there are some points which I can usefully bring to your Lordships' attention. In doing so I most earnestly ask for the indulgence which your Lordships so generously extend to those who are addressing you for the first time.

The Royal Commission on Divorce and Matrimonial Causes had to consider the question of the Summary Jurisdiction (Married Women) Act, 1895, and, as your Lordships know, by Section 9 of that Act orders under that Act are enforced in exactly the same manner as affiliation orders. During the course of that inquiry many suggestions were made for the purpose of improving the enforcement of payments under those orders, and among them was a suggestion exactly similar to that contained in Clause 2 of the Bill now before your Lordships. But there was this substantial objection made by many of the witnesses at that inquiry, that if such a course were adopted the employee's employment might be jeopardised since the employer in such cases might take the view that it was undesirable to retain in his service an employee in respect of whose wages it would be necessary that he should deal in the manner indicated, with the result that the very object of the provision would be itself defeated by the man losing his employment. Incidentally I might mention that there would be no such objection to a provision similar to that contained in the Children Act, 1908, Section 75 (11), which deals with pensions or incomes, and I venture to suggest that the noble Earl might consider whether he would not include it in this Bill at a later stage.

As a result of the suggested objection, I, on behalf of the Commissioners, wrote to a number of corporations and to the secretaries of many large trade organisations on the subject, and I think it would be useful if I read the list of trades to your Lordships as indicating that the inquiry was of as extensive a character as one could reasonably make. Those trades were the National Federation of Building Trades, the Drapers' Chamber of Trade, the Mining Association of Great Britain, the Cleveland Mine-Owners' Association, the North of England Iron and Steel Manufacturers' Association, the Engineering Employers' Federation, the Shipbuilding Employers' Federation, the Federation of Master Cotton Spinners' Association, the North and North-East Lancashire Cotton Spinners' and Manufacturers' Association, the Huddersfield and District Woollen Manufacturers' Association, the Incorporated Federated Associations of Boot and Shoe Manufacturers of Great Britain and Ireland, the National Federation of Merchant Tailors, the Shipping Federation, the Master Printers and Allied Trades Association, the Staffordshire Potteries Manufacturers' Association, and the National Association of Master Bakers and Confectioners of Great Britain and Ireland.

The result of the letters received in reply to my circular, which will be found set out in Appendix xxix of the Volume containing the Appendices to the Minutes of Evidence of the Royal Commission to which I have referred, was to show that, whilst some employers of labour would favour a suggestion such as is contained in Clause 2 of this Bill in respect of orders under the Summary Jurisdiction Act, compulsion would undoubtedly lead in a large number of cases to the employee's employment being jeopardised and probably to his dismissal. But it would appear from some of the letters received that certain of the employers of labour written to would be quite prepared to adopt the course suggested. I therefore venture to think that it might be wiser, rather than make the provision compulsory, to give a power, which does not now exist and which I believe is prohibited by Statute, to employers, where they signify their assent, to deal with wages in the manner indicated without going as far as to make it entirely compulsory.

There are two other smaller points which I think I might usefully bring before your Lordships, without going into the wider question of whether under the warrants for these orders it is necessary to bring up to the district where the orders are made the person against whom the order is made—under the Debtors Act this is not necessary—and it might be that under procedure such as this it might not be necessary; or the question of fees, as to which there is considerable diversity of practice, though the Home Office endeavoured to secure uniformity by the adoption of a model clause. There is one suggestion in the Report of the Bastardy Committee which might, I venture to suggest, be usefully incorporated in the Bill now before your Lordships' House. The position at present with regard to the execution of warrants is that the Police are bound to execute warrants in their own district without the expense being previously paid; they may execute warrants outside the district and charge the expense to the Police Fund, but it is not by any means clear that they must do so. For instance, if a warrant was issued from Carlisle—I take that as an illustration—the Police of that city might execute it on a man in Bristol without previously requiring that the expenses should be paid. On the other hand, if a warrant was issued from Bristol and the man was in Carlisle, it might be that the Bristol Police would require the expenses to be paid before they would execute the warrant. I therefore venture to suggest, for the consideration of your Lordships' House and of the noble Earl, whether it might not be possible in the present Bill to do that which is recommended in the latter part of Paragraph 11 of the Bastardy Committee's Report—namely, make it clear that the Police are bound to enforce warrants of distress and committal outside their district without requiring the previous payment of costs.

The last point to which I wish to refer is with regard to the question of the selected officer to do the collection. The noble Earl's Bill does not contain any definition, and it may be that that is unintentional. But there is in the Summary Jurisdiction Act, 1879, Section 38, a provision indicating persons who might be suitable to perform the work in question—namely, a superintendent or inspector of Police, or other officer of equal or superior rank or in charge of a Police-station—and it might be that those would be the sort of persons that the Court would contemplate as being their officers for the purpose of this Bill. But I would suggest whether there might not be included a person who I would not, I think, under any interpretation of the word be an officer of the Court but who would be a very useful person for carrying out this class of work—the Police-court missionary or probation officer attached to the Court. I apologise for occupying so much of your Lordships' time, but I ventured to think that some of these considerations might be of use to the House.

THE EARL OF GRANARD

I am sure your Lordships would wish me, at the outset, to congratulate the noble Lord who has just addressed us this afternoon for the first time, and to express the hope that we may have the advantage of his advice on many future occasions. As regards the Bill now before your Lordships, this matter was dealt with by a Select Committee in the year 1909, and that Committee made numerous recommendations. The noble Earl in this Bill has only, as far as I understand, adopted two of those suggestions—the suggestion that money under an affiliation order should be paid through a third person, and the suggestion that power should be given to enforce payment by attaching a portion of the defendant's salary or wages. Obviously the Government would naturally wish that the Bill had been more comprehensive. The Government think it is a pity to deal with these matters in a piecemeal manner, especially as the Select Committee went fully into the whole subject and dealt with it thoroughly.

As regard the actual position which the Government take up with regard to this Bill, I may say that we think its object is excellent in all respects. We agree with the proposal that payment under an affiliation order should be made through a third person, and that the third person should be an officer of the Court. Lord Gorell suggested the Court missionary or the probation officer, but the view of the Home Office is that this duty would be much better carried out by an officer of the Court. In this respect it may interest your Lordships if I mention the procedure under the Summary Jurisdiction (Married Women) Act, 1895, because if this Bill passes the procedure will be nearly on all fours with that under the Act to which I am referring. The Home Secretary in September of last year sent out a circular with regard to this Act to the different London magistrates. Under the Act of 1895 the married woman can either apply for the money herself, or it may be sent to her by an officer of the Court. I understand that in London the latter provision had not been taken very much notice of; at least the magistrates did not actually explain it to the persons before him. The Secretary of State therefore asked the justices of Liverpool, where it appears that the other practice had been in vogue, for a report on the matter, and if your Lord- ships will permit me I will read a few of the remarks made in this report— In every ease since October, 1909, in which a separation order has been granted in a Liverpool Police Court the option has been offered to the parties of having the money paid through the Court. Between October I, 1909, and September 30, 1910, there were 263 separation orders granted and in 252 of these the order contained a direction to this effect. In the vast majority of cases it was the wife who availed herself of the option. The payments are made in Liverpool through the cashier in the clerk's office, and in order to facilitate the payment by working men the office is kept open from 5 to 6 p.m. on Fridays and until 2 p.m. on Saturdays. It will be seen, therefore, that the additional office work involved has been considerable, but there is no doubt that this is amply compensated for in three ways Firstly, by the absence of the frequent complaints of brutality to the wives when formerly they had to collect their maintenance; secondly, by the keeping of accurate accounts between the parties, which entirely disposes of the constant disputes which used to take place as to the amount due, on proceedings being taken for arrears; and, thirdly, by the medium afforded to the parties to sound each other through a disinterested third party as to the prospects of a reconciliation. This practice has been in vogue now for over three years in Liverpool, and has worked admirably. The object of the circular incorporating this information which was issued by the Home Secretary was to ask the Metropolitan magistrates to put it into operation in London; and, as I have already told your Lordships, if this Bill passes the procedure will be nearly identical with that under the Act to which I have referred.

As to the attachment of wages under an affiliation order, the Government consider that on the whole this is a useful and salutary provision; but there is no doubt that there will be a certain amount of opposition to it generally. Lord Gorell, in fact, has told us as much; and this morning when looking through the answers received to the inquiries which he made on behalf of the Divorce Commission I noticed that a great many of the municipal corporations are against it, notably such large corporations as that of Liverpool, and also a great many of the large business firms such as the Cotton Spinners' Association, the Boot and Shoe Manufacturers Federation, and the Printers' Association are opposed to the proposal. Therefore it is well to consider whether such an order against a man might not militate against his employment. I am inclined to think that generally it would, although I am quite willing to accept the suggestion of the noble Earl that that is no reason for not enforcing it. The man gets into the trouble himself, and if he had paid the money in the first instance there would have been no affiliation order made against him. I think that if the employer had to send the money to the mother there would be a great deal of trouble; but if the procedure was that the money should be sent to an officer of the Court I do not think there would be any grave objection. The general attitude of the Government is friendly towards the Bill. We do not think that it goes far enough, but the provisions as they are are excellent and in our opinion should be supported by your Lordships' House.

LORD CHARNWOOD

My Lords, there are two observations that I would like to make. One is in regard to the procedure which I understand from my noble friend would be likely to be adopted if the Bill were passed. If I understood him rightly, the officer appointed to receive these weekly payments would he a clerk in the office of the justices' clerk—

THE EARL OF GRANARD

Or any one whom they cared to appoint.

LORD CHARNWOOD

Then he might be a different person in different cases. That quite meets ray point. But if the suggestion which I understood my noble friend to make had been carried out, it would mean that in rural districts the man who had to make these payments would have a long journey to take weekly, and that would give rise to friction. I submit that in many districts Lord Gorell's suggestion would be the better one—namely, that the probation officer should be the person appointed for this purpose.

I understand it was the wish of the noble Earl in framing this Bill not to overload it, but there is one further amendment of the law that I should like to have seen introduced into it had it been possible, and that is an extension of the time which a man against whom such an order is made has within which to make an appeal. I did not quite agree with the remarks of the noble Earl in moving the Second Reading that there was no danger to speak of that these orders might be mistakenly made. I have in my small experience as a justice of the peace come across a case in which I had practically no doubt—and I think the Home Office had no doubt—that an order had been made in mistake, and I believe the Home Office recognise that such mistakes do occur. It has been recommended, I think, by the Committee to which reference has already been made that the length of time for appeal should be extended, and I should like to ask the noble Earl in charge of the Bill to consider between now and the Committee stage whether he cannot agree to the addition of a new clause to the Bill extending the time for appeal.

THE MARQUESS OF SALISBURY

My Lords, I do not know that there is very much for me to add to the debate which has just taken place, except to say, in association with every other speaker who has addressed your Lordships, that we on this Bench are very much in favour of the Second Reading of this Bill. The noble Lord who has just sat down has said with truth that he would hardly like to give an absolute assurance that mistakes are never made in these cases. Of course mistakes are made, but I think the figures which my noble friend who moved the Second Reading of the Bill submitted to your Lordships are sufficient to show that these matters are inquired into with great care, and that there is no desire on the part of the magistrates to find in favour of the woman as against the man. On the contrary, the process of proof in a case of this kind is exceedingly difficult, as any one of your Lordships knows who has sat on the Bench when any of these cases have been tried. It is exceedingly difficult for the woman to make out her case, and the magistrates are very careful indeed in coming to the conclusion that paternity is proved. That being the case, I think we may assume that proper care is taken.

It certainly seems elementary justice that the heavier burden should not fall on one of the parties to the relief of the other. At present the working of the law is that far and away the heavier burden falls on the woman in cases of this kind. Even when the case is actually proved up to the hilt, by far the heavier weight falls on the woman. That is certainly on the face of it unfair. The man ought to bear his burden, and the rule of practice—in one sense a reasonable rule of practice—I that the sum of money awarded against the man must depend on his means of livelihood may be carried too far. If a man chooses to incur this liability he ought to discharge it even if lie is put to great inconvenience in doing so. Therefore I think that my noble friend is rightly advised in saying that once a case is proved the responsibility of further enforcement of the law should rest upon the Court. The matter passes out of the hands as it were of the parties, and it becomes the duty of the State to see that justice is done. My noble friend has not gone to any extreme length in carrying out this principle because I observe that he has still left all the cost of the proceedings to fall on the woman; but at any rate he has put in an officer of the Court as an intermediary, as an agent, who can see, as far as the State can do so, that the law is enforced and that the obligations of the man are fulfilled.

Something has been said about Clause 2 of this Bill—the attachment of part of the wages of the man in payment of the sum due. It has been said by the noble Lord who made such an interesting speech from the Cross Benches in addressing the House for the first time to-night that in many cases it might involve the loss of the man's employment. Let me say that, in the first place, the man had full warning. He ought, without any process of law, to have fulfilled his obligations, and it appears to me that he has very little to complain of if he forces the woman to go into Court and on the judgment going against him his employer is applied to in order that the man's obligations may be securely fulfilled. It is possible that when your Lordships get into Committee on this Bill some further safeguard may be introduced to avoid any possibility of mischance. If possible, we should like to prevent the man losing his employment; because on his continual employment depends the possibility of his paying the sum which is due. At the same time the plain dictates of justice are that the money having been found to be due the man should be forced to pay it, even if it is necessary to go to his employer to see that the money is paid. There is a well-known precedent for this procedure in the case of serving soldiers. As you know, when an affiliation order is made against a soldier the money is deducted from his pay by the commanding officer when application is made, just as my noble friend proposes in his Bill that the money should be deducted by the employer from the wages of the man in his employment. That is a very apt precedent, and a justification for the proposal which is here made. I earnestly hope that the Bill may have a Second Reading. No doubt it will require some little care when we come to the Committee stage, but I do not doubt that with the assistance of your Lordships a very useful measure will emerge from the discussion, and one which ought to be added to the Statute Book.

On Question, Bill read 2a, and committed to a Committee of the Whole House.