COMMONS AMENDMENT. (Hansard, 15 August 1921)

THE LORD BISHOP OF NORWICH
My Lords, I move that the House accept this Amendment. I still think that probably the rejection of the one Amendment with which we have disagreed has killed the Bill for the session. However, I suppose that any little hope there is of saving the Bill would be strengthened by our accepting as much as we possibly can, In regard to this particular Amendment, I think it might not work so very badly, after all. Anyhow, it appears to me to be a matter that might be dealt with in separate and particular legislation. If ever there was a subject that had to be handled piecemeal by the Legislature it is the subject before us now. If you look at the Schedule at the end you will see how many Acts have been already passed dealing with this subject. One Act, if I remember rightly, is an Act of a single clause. The subject is an exceedingly important one, but it appears to me to be part of a larger question, and I believe it needs to be carefully investigated, both as it concerns the points raised in this Bill, and in regard to divorce, and in regard to other unsavoury subjects, involving the relation of the public and the Press, the character of the crime, and the apparently conflicting rights of the many people concerned.
579 I believe it would be specially right to consider the rights of the Press, and see whether remedies that are on many sides proposed in this regard are wise or unwise, and whether they would do more harm or more good. It is a subject of which it is extremely easy to take a one-sided view, whatever that side may be, and I would far rather see a comprehensive Bill on this whole question than further jeopardise the chances of this Bill being passed, owing to the congestion of business to which the noble Marquess has just alluded. I would therefore ask your Lordships to accept this Amendment, in order that this subject and other kindred subjects may be investigated as a whole with a view to legislation.
If the noble and learned Viscount on the Woolsack really does press his opposition to this Amendment and carries your Lordships' House with him, I would ask him whether he would be now ready to convert this into a Government measure. That, I believe, is the only way in which it could become an Act of Parliament. No one would rejoice more than I that this Bill should have been relieved of the disagreeable clause which your Lordships have rejected, and I should think it would be a very small price to pay for its becoming a Government measure to accede to the Lord Chancellor's Amendment and to reject these words which have come to us from another place.

§ THE LORD CHANCELLOR
My Lords, the right rev. Prelate has asked me, without notice, and somewhat late in the day, whether I could give an undertaking that this Bill will be treated as a Government Bill. Of course, I am not in a position to give any such undertaking, but I do not share the gloomy anticipations which the right rev. Prelate has expressed, though I admit that there is sonic ground upon which they can be based. But I should be very unwilling to believe, until I am convinced by the event, that, because two thoroughly indefensible Amendments are rejected, the whole of this Bill will be sacrificed, and any assistance of a friendly kind that call be given in another place by the Government will certainly not be withheld when the matter returns for consideration to that House.
The right rev. Prelate is in error, in my opinion, when he suggests that the whole subject of trials in camera needs reconsidera- 580 tion. It needs no such reconsideration in my opinion. The law upon these matters is, and was, perfectly clear. I am dealing for the moment with criminal matters, and the ancient Common Law of this country, except in two particulars of Statute Law, has been that all criminal matters should be tried in public, and that, for the protection of the person who is accused, the proceedings which precede either conviction or acquittal shall take place within the sight and the hearing of all men. That is the Common Law of this country. But a Statute, however unhappily conceived, as the event has proved, tolerated an exception to this salutary rule in the case of incest, and the very Act of Parliament which first made incest a crime admitted the exception that proceedings in the case of incest should be heard in camera.
The result was as anomalous as it was indefensible. Not only is the detailed evidence in such cases not more indecent than in other cases, but it is far less indecent than in a great number of other cases in respect to which no one has ever suggested that the proceedings should take place in camera. But the exception which the law admits, apart from the anomalous exception created by that Act, is a more general one, and that is the exception where a Judge decides that the nature of the issues is such that, in relation to all the circumstances, or the personality, or situation of an individual, to compel him or her to give evidence in the face of the public would be to deny the very fundamental purpose of all Justice; in that case, and that case only, the Judge is permitted to make an exception.
I was approached, not by one Judge, but by many Judges who have tried these incest cases, who, bringing all their experience to bear upon the topic, most strongly urged that this anomaly, which prima facie was quite indefensible, ought to be swept away. I have not heard one voice from any of the Judges who have tried these cases since the Incest Act was passed who has differed from the view that proceedings in these matters ought to be and, according to the ordinary law, should be heard in public. The Amendment which the Commons have introduced to the Amendment to which your Lordships assented, is to give to an individual Judge a singular discretion in this particular case, which has never been given to any Judge in dealing with matters more horrible or, at any rate, far more indecent in public.
581 In no circumstances could I agree to such a proposal, and I certainly shall not be induced to agree to it by the obscure anticipation that persons who desire to concentrate against this Bill on other grounds and not in relation to the present Amendment may seize this opportunity to produce that result, if they can. As long as I am responsible for the administration of justice in the country, I must hold that as an argument to which I must not, at any time or in any circumstances, yield. Holding this, as I do, to be an inadmissible proposal and reinforced, as I am, by the opinion of Judges who do not desire that this function should be imposed upon them, I find myself unable to accede to the appeal of the right rev. Prelate, and if he desires to press this matter to a Division I shall regard it as my duty to vote against him.

§ LORD PHILLIMORE
My Lords, I regret that, this matter has been treated in this very serious manner. I have tried cases under the Incest Act, and I quite with my brethren and former colleagues that it was a silly provision. I know that sonic of the Judges, in their dislike of it, have gone so far as to make what I think were unwarranted additions to the Act, and refuse to allow it to be declared in public that a man was guilty or to pass his punishment in public—things which, under the earlier administration of tire Act, we did not think necessary. But I agree, and have always agreed, that it was a misfortune, because the object of the Act was to prevent crime, and if people did not know that the crime was punished they would not be deterred.
After all, it was only in 1908 that this Act was passed. Your Lordships' House added to this Bill what really was not germane to it—this clause about having trials of incest held in public. All that the Commons have done is this. They have not added some new thing like the last clause we have been discussing. All they have done is to qualify the change; to agree with your Lordships in saying that as a rule these things shall be held in public and not in private, but, inasmuch as it is an experiment, that the Judges shall be allowed the discretion, with which they can surely be trusted, of saying that in certain cases the. trial may still be held in private. The general direction will remain, as your Lordships desire—that these trials should be in public. The qualification 582 will probably never operate, but if it does operate it will only operate in extreme cases, when the Judges think it desirable. I think it is a great pity to weight the chances of this Bill by an adverse decision upon what I cannot help thinking is a very small point. The other point was a very different matter. I cannot conceive that the interests of justice will suffer if this clause be put into the Bill in this form.

§ EARL BEAUCHAMP
My Lords, it is perhaps somewhat superfluous of me to say anything, seeing that the noble Viscount on the Woolsack has already expressed his opposition to the Amendment which has been introduced in another place. But I may be allowed to say a few words, because I am afraid that it was I who was responsible for introducing into the Act of 1908 this clause which is now being repealed. May I take the opportunity, however, of expressing my regret at the absence of the noble and learned Lord who was Chairman of the Joint Select Committee of both Houses of Parliament. To his patience, his tact, and to the legal knowledge which he brought to bear upon this subject, your Lordships' House, and I think the country generally, owe a very real debt of gratitude, and I am very sorry that he cannot be here this afternoon to help us in deciding this question.
Although I was responsible in 1908, while representing the Home Office in this House, for enacting that cases of incest should be heard in camera, I confess that, having been a member of the. Joint Select Committee, having heard all the evidence which was given to us on that occasion, and having had the opportunity of discussing the matter with eminent lawyers on various occasions since that time, I am convinced that it was a mistake to make that enactment. I welcome the opportunity of repealing it in the Criminal Law Amendment Bill, and I hope, therefore, that your Lordships on this occasion will follow the advice of the noble and learned Viscount on the Woolsack and refuse to agree to the Amendment that was introduced in another place.

THE EARL OF DESART
My Lords, I do not want to say more than two words upon this matter, because I think the noble and learned Viscount upon the Woolsack has really said everything that can be said. But I should like to express my agreement with him and to say, in addition, that apart 583 from the learned Judges to whom he says he has spoken, I have had an opportunity j of speaking to some, possibly to some of those whom he saw, and also to the Director of Public Prosecutions, and I can find no difference of opinion at all on the part of anybody who has had to do with the actual operation of the Incest Act and its working. A certain amount of evil is claimed to have resulted by the cases being tried in camera, and it is felt desirable for a great number of reasons, that the trials should follow the usual, the almost universal, course of being heard in public. For those reasons I must confess that I think the Amendment of the Commons is hardly a serious one, and I find it difficult to believe that if there is any friendship for the Bill in the House of Commons the rejection of the Amendment will imperil its chances.