HL Deb 07 November 1934 vol 94 cc172-86

Order of the Day for the Second Reading read.

LORD MERRIVALE

My Lords, I confess I rise with some misgiving to address your Lordships upon the questions of procedure which are involved in this Bill. It is not a Bill which interferes with existing rights. It does not prevent people getting divorce or getting judicially separated; it does not interfere with existing rights at all; but it does propose a substantial modification in the procedure in the Courts, and in particular in the courts of summary jurisdiction—the courts of the Police Magistrates in London and the courts of the petty sessions in the country. With regard to the existing methods and facilities for dealing with questions of separation of married people, I think it is widely recognised that our apparatus is out of date. Whether it was ever well designed so far as it depends upon the provisions which were introduced nearly one hundred years ago, putting powers with regard to differences of married people into civil courts, and which were enlarged in the Summary Jurisdiction Act—whether it was ever an absolutely well-designed procedure, I am not sure. But times have changed and I do not think there is anybody at the present time who is acquainted with the operation of our existing methods who does not think that they could be greatly improved to public advantage.

I have ventured to get your Lordships' leave to have this Bill read a first time and printed, and I am asking for its Second Reading now in order that it may be considered at a time when I know His Majesty's Government, through the Home Office and through a Committee which has been appointed by the Home Office, are dealing with some parts of the matter in question. My view is that the whole of the matter is ripe to be dealt with, and that we could make a substantial advance, and it is with that view that I have drafted the Bill before your Lordships. I am not supposing for a moment that it is a perfect method of dealing with the subject, but it presents concrete proposals, founded upon methods which, I know, command the sympathy of people who are profoundly interested in the large question which is involved. After all, our State is built upon the home, and in a country where there are eight or nine million homes anything which affects the home is of vital consequence.

I am sure your Lordships will give me your indulgence while I endeavour to ex- plain what is proposed here. Perhaps I should consider for a moment the existing state of things. Two married people quarrel, violently perhaps. People who are living together are apt to quarrel violently about things which others who are not living together would not think it necessary to quarrel about. But married people do quarrel violently, and one of them, more often than not the wife, issues a summons and it comes before a court of summary jurisdiction, not selected for the purpose, very likely having no woman upon it, and it is fought out. Something like a dog-fight goes on. There is a public encounter of these married people, and if there was a possibility of their coming together before, it really becomes almost an impossibility in the great majority of cases after there has been that set battle fought out to a finish. That, to my mind, is a mistake. After you have had a violent and bitter encounter in public, with professional people engaged and witnesses involved, the whole thing will be aggravated. I know that many people have considered whether that could not be amended without depriving people of their rights.

Then there is another element. One of the elements which make these things very often absolutely fatal where perhaps they would not otherwise be is the unbounded publicity. In a magistrate's court business comes on in the ordinary course. Perhaps there is a charge of theft, and some case which will be committed to the Assizes, and then the summons is called on. The neighbours, of course, have got to know, and soon there will be an interested audience, and if there is anything that is offensive or revolting in the evidence, or that excites curiosity or interest, it is pretty sure to find its way somehow or other into some publication. It does not do any good. It does no good to the people who read it, but it does infinite harm to the people whose misfortune is crystallised from that time. I think that that state of things aggravates the problem which arises from the absence of any modern, suitable, adequate procedure.

I look at the matter from the social side. As I have said, the thing comes on at random. Often there is no woman among the justices, although there are women justices in these days, and there is no power in the court to take the humane course which any ordinary citizen would take where such a quarrel came within his knowledge, of seeing whether the parties who are at difference could not be brought together. There is no means at all. The court has no right and no power to apply a conciliatory process. I think that ought to be amended and in this Bill new methods are proposed. One of the objects in view is to avoid mischievous and needless publicity. Another is to have the case considered with proper preliminary knowledge of the matters in question; and a third is to give the court when, with these advantages, it comes to consider the differences, a recognised method of using its influence to bring about a reconciliation of the parties. It is not proposed by this Bill to infringe in any degree upon the principle that, except where there is good reason to the contrary, legal proceedings should take place in public. There is a reservation, not only of the provision that the judgment shall be given in public, but that there shall be control by the court of the extent to which the proceedings may be reported. To my mind, that is a thing which it is desirable to secure.

The other proposal is a proposal of a different kind. It is provided by one of the clauses in the Bill that before a summons is issued in a case of this class, there shall be an information—using the word in the technical sense—deposed to by the complainant which shall set forth the facts relied upon, and that that information shall be in the hands of the justices who are to deal with the matter. That would have two advantages. Instead of the case coming on, as now, upon a bare, concise statement that the complainant seeks an order of separation on the ground that such and such things have happened, the complainant would have to formulate the matters of complaint and the court would have the formulated matters of complaint before it. If the courts are constituted, as I hope they will be, with due regard to their duties and with proper provision for taking these cases out of the ruck of criminal cases with which they are now mixed up and dealing with them separately according to their importance, a court with that information before it and with the parties there would be able to see at once whether it was a case in which it ought to resort to con- ciliatory procedure and to apply the means of seeking to bring about a reconciliation of the parties before there was any public hearing at all.

I will not go in detail into the clause in the Bill. The whole matter is set out in the clause, although I do not say in the best possible way, because I am not wedded to the language or even to the detailed proposal. It enables the justices, when one of these very serious cases come before them and they see the parties and know what is in variance, to say: "Now we are going to speak to you by yourselves. We are going to see whether really you think you are bound to fight it out here and make an end of your married life." That is a thing for which there are no facilities at the present time. It will not prevent a complete hearing if the effort at conciliation fails. The court will appoint a day—and I hope it will appoint a day so that this class of case can be separated from criminal work—and when that has been done, if the ease has to be fought out, it must he fought out. I have addressed your Lordships at some length in regard to these matters. I have endeavoured to point out that there is no inroad upon publicity, that there is no inroad upon the right of the parties to have their differences decided by one of His Majesty's Courts of Law as they have had in the past, but the Bill does give a breathing time and an opportunity for consideration. To my mind—and I do not speak without some experience of matters of this kind—that will be invaluable among decent married people who happen to have fallen out.

It may be asked, why bring in this Bill in the last ten days or so of the Parliamentary Session? I drew the Bill a long time ago, having discussed the subject with many people who are interested and generally I found them entirely sympathetic. It seemed to me that it would be a good thing if I could present the Bill to your Lordships now at the close of the Session so that, if your Lordships were so good as to give it a Second Beading, it might be fully considered by those responsible in these matters. I am quite sure that every member of His Majesty's Government will take the serious view of it that I take myself and I believe they would all take a sympathetic view of any proposal which tends to mitigate the troubles of married people who have fallen out. I have ventured to introduce this Bill and get it read and printed, and I now move its Second Reading in order that before next Session there may be opportunity for the whole subject to be considered by those interested in it. If it goes before them with the sanction of your Lordships' House to the general principle of the Bill, I can only say that any amendment which it is thought ought to be made I should be delighted to help to make. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Merrivale.)

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, I do not propose to make a speech on this Bill but merely desire to put a question. In view of what has just fallen from the noble and learned Lord it may perhaps be suggested that the question is superfluous, but I have no doubt that either he or the noble Earl who I understand will speak for the Home Office, will be able to give me a satisfactory answer. I may say at once that I am in general sympathy and indeed agreement with the proposals of the Bill. The evidence which came before those who had the misfortune to sit upon the prolonged Matrimonial Causes Commission, and information and much experience gained since, have convinced me that there are hundreds of cases where applications for separation orders would never have been made and separation orders would never have been granted if there had been the opportunity for the timely intervention of some wise and kindly friend of the parties, and that infinite mischief to the children and to the homes would have been saved if there had been that intervention. Further, I think that magistrates with all their experience, especially such a special panel of magistrates as the noble Lord contemplates, would prove admirable mediators in these matrimonial disputes if they were to bring the parties together without publicity and with the power of issuing such interim orders as are contemplated by the Bill. But it seems to me that there are others who are likely to prove more successful than magistrates, even specially selected magistrates, and those are the probation officers or police court missionaries.

I say that they are likely to be more successful if only for the reason that they are able to have much more prolonged and frequent interviews with the parties and are able to follow them into their own homes. Human nature being what it is, intervention taking place actually in the home is likely to be more successful than under the somewhat artificial arrangements of the sitting of a court; and I cannot conceive how magistrates would be able to carry out their conciliatory purposes in nine cases out of ten without the assistance of the probation officer or the police court missionary. I have a recollection of the debate which was initiated in a very interesting and thoughtful speech by the noble Earl opposite, Lord Listowel, when proposals much of this kind were made. In that discussion, if I remember rightly, the noble and learned Viscount on the Woolsack intimated that the Home Office proposed to introduce reforms, I think, and first to appoint a Committee to go into the whole question of the further development of the probation officer and police court missionary system.

That Committee has been formed and so far as I know is at work. I am given to understand that such questions of judicial procedure as the noble Lord has brought before us are not within the terms of reference of that Committee, but nevertheless it seems to me that the conciliatory methods proposed in this Bill (with which I entirely agree) are so much bound up with the fuller and further development of that admirable probation and police court missionary system that it might be well, and indeed the noble Lord in his concluding observations implied that it would be well, to wait until that Departmental Committee has reported so that the whole matter could be treated together as one whole. I think there is great advantage in the noble Lord having put his proposals into a Bill. As he said, if it is given a Second Reading it will have the imprimatur of this House as worthy of full consideration; but I question whether it would be desirable to proceed with the Bill until its procedure can be considered in connection with the Report of the Committee on the whole development of the probation officer system.

THE EARL OF LISTOWEL

My Lords, I do not intend to detain your Lordships for more than a few moments, after you have listened to two such experienced and distinguished speakers as those whom we have just heard, but having been instrumental in some small degree in drawing your Lordships' attention to the extremely urgent need for alteration in the manner of dealing with matrimonial cases in our police courts, I should like, on behalf of those within and without your Lordships' House who have been agitating for a very long time past in favour of reform, to thank the noble Lord very warmly for introducing this measure to Parliament. It contains two essential principles which have, I think, the practically unanimous support of all those who are acquainted with the present method of treating matrimonial cases in police courts. The noble Lord said quite rightly that there was nobody who had investigated the matter to any degree at all who was not convinced that change and reform were absolutely necessary.

The first of these principles is that of conciliation. Conciliation should come before litigation. It is obviously indispensable that a couple who fall out should be offered every opportunity of reaching a settlement by mutual consent before being submitted to the ordeal and to the legal battle which they would have to face in a court of law. That is the first and perhaps the most essential principle. I do not believe that opportunities for agreement are sufficiently numerous at the present time. The second principle is the principle of privacy. The principle of privacy is brought out very clearly in the noble Lord's measure. He maintains that the magistrate should have discretion to exclude the general public from the hearing of cases of this kind when intimate private affairs must necessarily be involved, and he also maintained that the magistrate should be able to prevent reporters sending to the newspapers for which they work unsavoury details which arise in the course of the hearing. Those are both measures of privacy and decency which are already embodied in other parts of our English law.

I should like to remind your Lordships that you have already endorsed these principles. A few months ago a measure which differed in certain respects from the present measure was introduced, and upon that occasion it had support for those principles from the noble Marquess who leads the Liberal Party, from the most reverend Primate, and from the noble and learned Lord who has introduced the present measure. It therefore appears that the general principles outlined in this Bill, which indeed have been reproduced at the present moment, have already acquired the assent of opinion representative of many different interests in your Lordships' House. I do not know what attitude the noble Earl who will speak for the Government will adopt. I sincerely hope that he will say that the principles of the Bill, however much he may disagree with it in detail, are in accordance with the views of the Government and in accordance with the views of your Lordships' House, and that therefore he will not contest the Second Reading for which the noble Lord has asked. But if he were to answer that the matter at present is sub judice, that a Committee of the Home Office is considering the very question which has been raised by the noble Lord in his Bill, then I must confess that I should be very profoundly dissatisfied, because, as the noble Lord has already pointed out, the terms of reference upon which that Committee is working exclude inevitably from its consideration the very much wider issue which is raised in the present measure.

The terms of reference of this Home Office Committee, however admirable they may be, do not permit of the consideration, so far as matrimonial disputes are concerned, of anything beyond a separate hearing of those cases apart from ordinary criminal cases, and of extending the conciliatory methods which are at the present time applied by police court missionaries and which may he improved in the future; but this Bill is very much wider in its scope. It provides for conciliation on a very much larger scale, and I do not think your Lordships could possibly agree if you were asked to ignore the Bill—if the noble and learned Lord is asked to withdraw the Bill—because the matter is being considered by a Home Office Committee. If the noble Earl can assure us that the terms of reference to the Committee are wider than we imagine we shall be perfectly satisfied, but I sincerely hope that the noble and learned Lord, and those who are interested in this matter, will not allow themselves to be disconcerted or put off by the answer that the whole question is being considered by a Home Office Committee, and that it would be advisable to wait until this Committee has reported. That does not meet the case, and I sincerely hope that if this answer is received from the Government the noble and learned Lord will challenge it.

LORD DANESFORT

My Lords, I venture to think that the House and the country at large will be extremely grateful to my noble and learned friend for having introduced this Bill. It seeks to avoid difficulties and troubles with which everyone, I suppose, in this country is familiar, from the newspapers or otherwise, but when the measure is brought forward by my noble and learned friend, who, I suppose, has wider experience of these matters than certainly any man in this House, and I venture to think than any man in this country, it carries a weight of recommendation which otherwise it would not possess. But I venture to think that even an ordinary layman can form an opinion as to the importance and desirability of the principles which underly this Bill. It must be obvious to everyone that when, unfortunately, matrimonial disputes arise, the worst way possible of attempting to settle such disputes is to go into court and have hostile speeches and the evidence of witnesses on one side or the other, and that publicity which would render any conciliation absolutely impossible. On the other hand, if you can bring the parties together in private, where there can be a full and friendly discussion, with no publicity, I venture to think that in many cases where now disputes end in permanent hostility they would end in permanent conciliation.

There is one matter which appears to use to be of the gravest importance, and I think it is dealt with in this Bill, and that is the tribunal before which such disputes come. That tribunal will have to be armed with great tact and great discretion. I am glad to see that the noble and learned Lord has realised that, and has proposed in this Bill that there should be a special panel of justices from whom the persons to sit on this tribunal shall be selected. If that panel is well appointed the selection ought not to be very difficult. I agree with the noble Earl who has just spoken in thinking it is most important that this Bill should receive a Second Reading to-day. In the first place, the general principles underlying the Bill would thereby receive the imprimatur of your Lordships' House. Secondly, if the Bill is read a second time undoubtedly it will receive wider consideration in the country by those who are best competent to speak than otherwise would be possible. I believe it will receive much consideration in the Press, and probably great consideration from ninny of those who up to now have been appalled at the way in which these matrimonial disputes have developed into permanent hostility. I cannot feel that there can be any possible objection to reading this Bill a second time to-day, so that the Government may give their approval to the general principles underlying it, and when the noble and learned Lord reintroduces it next Session the discussion which, I doubt not, will have taken place will enable him, if necessary, to modify the details of the Bill so as to make it a valuable and workable measure.

LORD ASKWITH

My Lords, the most reverend Primate and Lord Listowel have raised important questions as to whether this Bill would come within the terms of reference to the Home Office Committee. Might I ask the noble Earl, who knows so much about probation officers, and who apparently is going to answer for the Government, whether it would be possible to enlarge the terms of reference to the Committee and, if necessary, add members of the legal profession, so that the questions raised by this important Bill may be considered by the Committee? My noble and learned friend says he is not going to press the Bill at the present time, but that he wants it discussed. I do not think anyone can disagree with the principle—namely, the advantage of conciliation in these matrimonial disputes—and my noble and learned friend has pointed out that the present procedure was started one hundred years ago. Since then the daily Press has come into being, with its circulation throughout the whole country, and surely that is a factor which makes these quarrels very different. Once they come under the present procedure there is a direct incentive to continue the quarrel, and a person who has come before the public and into notoriety, with applauding friends, perhaps, and other people reading all about the dispute, is given an incentive to go on and win. That is not the way in which such quarrels can be settled, and if only a better procedure than this archaic system can be devised by the Committee at present sitting, or by such Committee enlarged, or by another Committee, before my noble and learned friend reintroduces this or a modified Bill next Session, I think a great many people in this country will be very grateful to the Government for the action they have taken.

LORD BALFOUR OF BURLEIGH

My Lords, before the noble Earl replies might I ask him another question? I do not think I have seen the personnel of the Home Office Committee mentioned, but I have seen comments in the Press, and I have seen it stated that no married women are sitting on this Committee dealing with conciliation in matrimonial disputes. If that be so it seems a rather remarkable omission, and I would ask the noble Earl if it be a fact.

LORD MERRIVALE

I do not think there is any reference to the Committee of the question of conciliation.

THE EARL OF FEVERSHAM

My Lords, I have listened with very great interest and attention to the speech with which the noble and learned Lord has introduced the Bill which stands in his name. The eminence which its author has reached in the profession of the law would of itself give weight to the proposals contained in the Bill. But I think the Bill has a further and a special claim on our attention because it represents the views of one who for many years has gained experience of the problems arising in matrimonial causes as President of the Divorce Court. As your Lordships will recall, there was a debate on this subject as recently as last May, when the noble Earl opposite, Lord Listowel, introduced his Summary Jurisdiction (Domestic Procedure) Bill, and several noble Lords, including the noble and learned Lord who has introduced this Bill and the most reverend Primate, took part in what was then an interesting and a valuable discussion.

In some respects the two Bills present a striking family likeness, but I am glad to notice that the present Bill does not contain some of the proposals to which grave exception was taken during the debate on the previous Bill. As a result of the previous debate the whole subject was dicussed with my right honourable friend the Home Secretary, who, in the light of the observations made in this House, decided to appoint a Committee to deal with one important aspect of this question so far as courts of summary jurisdiction are concerned—namely, the organisation of the social services connected with the administration of justice in those courts. It is quite a common practice when an application for a separation order has been made for a court of summary jurisdiction to ask the probation officer to interview the parties and to try to bring about a reconciliation. Most probation officers throughout the country are at present engaged on this as well as on many other duties, and one of the functions of the Committee which has been set up will be to review the functions of the probation officers in this particular direction and to consider what changes are required in the existing organisation of the probation service and otherwise.

The noble Lord who spoke last has directed a specific question to me, enquiring as to the personnel of the Committee and especially with regard to whether a married woman has been appointed to that Committee. The personnel and composition of the Committee has been published, and I will supply the noble Lord with the necessary information as soon as possible. With regard to the inclusion of a married woman in the personnel of the Committee, that has, I think, raised a point of precedent which the Department which I represent has not met before, and that is whether the composition of a Committee not necessarily dealing only with the subject of matrimonial disputes, but more with the administration of the social services of the courts of summary jurisdiction, should have regard to the private circumstances of its members. But the matter is, I think, going to be more fully dealt with in another place by my right honourable friend the Home Secretary in the course of a day or two.

In my opinion—and this opinion is shared by the Home Secretary, and, I am glad to see, is also shared by the most reverend Primate—it would be a great mistake to attempt to deal with the important question of procedure and cerain other proposals contained in this Bill until the present Committee has completed its labours. The inquiry that is being made by this Committee is bound to throw considerable light on the value of the existing methods of conciliation and also probably on some of the proposals contained in this Bill. For this reason I should prefer to offer no opinion at present on the details of the scheme which the noble and learned Lord has inserted in his Bill, except to say that the underlying objects behind his Bill, such as proper preliminary knowledge and the correct ascertaining of the facts of the case so that they can be brought before the bench of magistrates, will be most decidedly included in the scope of the Committee and are well within the terms of reference. It is obvious that at the present stage of this Session there can be no hope of this Bill, which requires detailed and careful consideration, making further progress, and for this reason and for the other reasons which I have given I do not propose to pass any detailed comments on the individual clauses of the Bill. I can, however, assure my noble friend that I fully appreciate the importance of the subject which he has raised and the need of giving it the fullest consideration. I can assure him also that when the Report of the Social Services Committee is received we shall be prepared to give this Bill our most careful consideration.

LORD MERRIVALE

My Lords, I intended to make it clear when I was moving the Second Reading—and I say this in answer to the very kindly speech of the most reverend Primate—that I had no desire that this Bill should go beyond Second Reading at this time. The object of the printing and publication of the Bill was that at a time when the matters in question are exciting a very great deal of public interest some definite proposals should be before those who are responsible in the matter, and I say that with regard to the Committee which my right honourable friend the Home Secretary has appointed. I was very glad he appointed it, but it is not commissioned to deal with the questions embodied in this Bill. The noble Earl, Lord Feversham, knows twat of course. The Committee has no authority to deal with them, and if this Bill has the sanction of the House and comes to be a practical proposal, the Home Secretary of course will feel it his duty to deal with the matter and to deal with the specific proposals. I am not wedded to the details of the Bill. The outline of it has been approved, I think, by each of the speakers who have unofficially addressed the House. With regard to the probation officers there is nothing in this Bill to prevent justices, if the Bill passed as it stands, from consulting the probation officer or putting the probation officer in contact with the parties. The justices are to take all the necessary steps and may adjourn the case and postpone the hearing while these steps are being taken.

I do not propose to take up time in discussing details, which I am sure will be much better understood and more clearly appreciated when a little time has elapsed, and I simply ask that your Lordships will give this Bill a Second Reading on the understanding that I have no intention of proceeding further with it at this time, but that I shall want to know in the course of next Session what the view of the Home Office is in regard to it. If it should prove that the Government are too busy to deal with such a matter as this then I shall reintroduce the Bill and see what your Lordships have to say about it.

On Question, Bill read 2a.