HL Deb 29 January 1935 vol 95 cc727-42

Order of the Day for the Second Reading read.

LORD MERRIVALE

My Lords, this Bill embodies the proposals of a Bill to which in the Session of Parliament which concluded at the end of the year the House gave a Second Reading. That was the same Bill, except for slight verbal corrections. It was received with very great kindness by those of your Lordships who discussed it, and was given its Second Reading without a Division. As I said at that time, the subject matter is, in my judgment, one of very considerable social importance. It affects particularly the less well-to-do classes in the country, and the law and the procedure which govern it and have governed it since about the year 1837, are in a condition in which, in the very generally held opinion of those who are familiar with the subject, substantial change is overdue.

The Bill deals with the class of case in magistrates' courts in which one of the spouses is seeking what is in effect a decree of judicial separation because of domestic differences—what might commonly be called cruelty, but generally is found to fall within a more technical description of cruelty and neglect to maintain. These cases at present are brought before the magistrates' courts without any preparation on the part of the court, and with no notice of what is to come before them. They are mixed up with the ordinary criminal proceedings of the courts, and they are conducted in the same way as the criminal proceedings, although that is a thing which, by the publicity it gives and by the necessity which it causes for a public conflict between the parties, is about as mischievous as can well be conceived. When you bear in mind that the number of orders for judicial separation—that is, magisterial orders for separation in such cases—is about four times as great as the average number of decrees of divorce in the course of a year, and when you bear in mind that the people who are concerned not merely have their homes broken up, but what was their joint means of maintenance broken up, becoming inadequate for two families very often where it was barely adequate for one, it is not surprising that the result is bitter controversy—controversy which leaves no reasonable scope for the settlement of disputes of married people in the way in which they ought to be settled.

After all, there is an old adage which says that in the falling out of friends the renewing is of love, and it is quite certain that people can often be reconciled and afterwards get on better than ever before. What this Bill proposes is that the magistrates who are to deal with this class of case should be provided in advance with knowledge of what the subject matter is; and that then they should be entitled to require the parties to come to them in private, if they think well to do so. If they think that it is a case in which the contest ought to be fought out in public they can so provide. But if they think it is in the interests of the parties and in the common interest, they can require the parties to come to them and apply a process of conciliation. It is quite obvious that a reasonable process of conciliation, privately applied, is the only means in many of these cases of bringing them to any but the most unhappy ending. And in cases where it has been found practicable, I know, from the experience of magistrates, that it has been very beneficial. Then, besides having that resource, the justices under this Bill have another. Without any infringement of the law with regard to publicity where a case is fought out, except restraint upon the publication of indecent matter, within the discretion of the justices, they have control of publicity with regard to the process of conciliation. When one knows that a very considerable number of these separation decrees are either not taken up or not acted upon, it is clear that there a very considerable field for conciliatory action.

Last Session, as I say, your Lordships were so good as to give the Bill a Second Reading, with some very kind observations about it from some of my noble friends. Since that time the subject has been very widely discussed. One reason why I moved the Second Reading at the time I did was that, with regard to a reform which I think is overdue and has long been overdue, there should be some stimulus to discussion. Well, discussion took place, and where the Bill has been discussed, except for an article in one publication, I am not aware of any instance where it was not very favourably considered. The outstanding cases are two which I will mention. One is that of the Parliamentary Committee of the Magistrates' Association, I suppose one of the most experienced bodies you could think of for the purpose of discussing a matter of this kind. I know from the correspondence which their clerk, Mr. Leeson, has been so good as to have with me that that Committee have been at very great pains to examine the Bill thoroughly, and have given it in general terms very cordial approval. The Committee very naturally propose Amendments with regard to procedure, and at the proper time these must have that careful consideration which Amendments proposed from such a quarter ought to command. More recently both Houses of Convocation have discussed this matter, and it was with very great satisfaction that I learned from the Press—the most reverend Primate of course knows about this in a way in which I do not—that each House of Convocation was warm in its approval of the general proposals of this measure. If I go too far I have no doubt I shall be told I have done so. With regard to the criticism of the newspapers, as I have said, generally it has been exceedingly favourable, and the correspondence I have received from various parts of the country has been of the same tone.

The net result is that, so far as I can appreciate, there is general recognition of the need for action, and that being so and, as I think, action in the matter being overdue, I ask your Lordships now to give this Bill a Second Reading. I do so with more confidence than I did when the Bill was last before your Lordships. And I would add this: I know there is a Home Office Committee sitting at the present time dealing with matters mixed up with this question, especially with the province of the probation officer. The few words with which I have clarified a line which had been a little obscure in the Bill enable the magistrates to take advantage of the services of the probation officer or anybody else competent to give them assistance. The Home Office Committee is proceeding with its task. It is proceeding as Departmental Committees usually proceed. I dare say some time in the course of the coming months it will publish a Report and then, if the Report is dealt with as the Reports of Departmental Committees are usually dealt with, the Report will be carefully stored. My view of this matter is that it is not necessary for us to wait for elaborate advice with regard to one aspect of this matter, that there is a broad question involved of public necessity and acceptable means of dealing with it, and that being so, I ask your Lordships to give a Second Reading again to this Bill. I shall consider at an early date what course I ought to take to meet reasonable demands for time for consideration without failing to discharge what I think is a duty incumbent upon me in the circumstances of this case.

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

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, when this Bill was last before your Lordships I was very glad to be able to give cordial support to its main provisions. Since then, as the noble Lord has explained, it has received a very wide measure of support from magistrates and, as he rightly pointed out, last week from both Houses of Convocation of Canterbury, members of which in each case gave unanimous approval to the main proposals of the Bill. After what the noble and learned Lord has said, and after what I said when this matter was last before your Lordships, it is unnecessary for me to add much to-day. I strongly approve of the proposal that in matrimonial disputes both the High Court of Justice and courts of summary jurisdiction should have authority entrusted to them by which they can order that the evidence, or parts of the evidence, should be heard in camera. I do not think that the interests of justice are advanced or that the interests of the public are served if parties are obliged to detail the most intimate maters of domestic and matrimonial life before a crowd which happens to be collected in court. I also approve most strongly of the proposal that in courts of summary jurisdiction these cases should be held at special sessions and not mixed up with the ordinary police cases which come before those courts. I think that is a proposal which must commend itself to us all.

I am also very glad that provision is made for the appointment of panels of justices specially qualified to deal with delicate matters of this kind, particularly those conciliatory efforts to which I shall allude in a moment, and I hope if these rules are made care will be taken, wherever it is at all possible, that a woman shall be one of the panel of justices. I am quite satisfied that in many cases the woman, who is generally the applicant for these separation orders, will be able to give her evidence with much greater fullness and much less embarrassment if it is in the presence of a woman. As your Lordships are well aware the chief proposal of the Bill is the second clause which provides for these conciliatory efforts. It is quite obvious, and the noble Lord once again made it clear, that in many cases the greatest advantage would result to the parties, to their homes, and to their children if "tiffs" and misunderstandings were not allowed to harden into separation. The mere fact, to which the noble and learned Lord alluded, that out of the great number of orders for separation granted a very large number are never even taken up is a proof that with a little friendly effort at conciliation at an earlier stage the orders need never have been taken out at all. I am quite certain there is a great field for useful work here. It is only right to recognise that in many parts of the country a great deal is done both by clerks to the magistrates and by the magistrates themselves in this direction, but their powers are limited, and it is an excellent thing that by this Bill the effort should be made operative throughout the whole country.

There is only one difficulty which I have about the Bill and to which the noble and learned Lord has already alluded. It will be remembered that when the noble Earl, Lord Listowel, brought this matter forward in a rather larger scheme, the noble and learned Viscount on the Woolsack intimated that the Home Office was about to appoint a Departmental Committee. I welcomed that because I recognised at once that there are many things that the clerks and the magistrates themselves, even under the provisions of this Bill, are unable to do. They cannot visit the homes of the parties, they cannot make themselves familiar with the intimate circumstances of the case, and, as the noble and learned Lord has recognised in many cases—I should imagine in most—they should have recourse where they can to the probation officer or the police court missionary, in many cases the same person.

If it be true—I do not know—that the Departmental Committee is at work, that it has been giving consideration to the development and extension of the probation system which will operate very usefully in regard to the matters dealt with in this Bill, it might be an advantage before the Committee stage is reached that the Report of that Committee should be known, since so much depends upon the working of the main clause of the Bill, and so far as I know the Departmental Committee may give recommendations in its Report that would immensely assist the operation of that main provision of the Bill. It might be possible to suspend the Committee stage, but it is for the noble Earl who will reply for the Government to say what prospects there are of that Report being produced at an early date and dealing sufficiently with these matters to make that course reasonable. That is a matter between the noble and learned Lord and the Government. I content myself now with saying that once again, and I believe in common with a very great and growing measure of public opinion, I give my cordial support to the main proposals of this Bill.

LORD MERTHYR

My Lords, in venturing to intervene in this debate I must first of all ask your Lordships to extend to me that measure of indulgence which is customary in the case of a member of your Lordships' House who is speak- ing for the first time. I do so first of all as a magistrate who may have to administer this Bill, and also as a member of the Magistrates' Association, the Parliamentary Committee of which body has given very careful consideration to the provisions of the Bill. After what the noble and learned Lord has said about that association I feel unworthy of the task of putting before your Lordships this afternoon the views of that body. But I may say at once that the Magistrates' Association welcomes this Bill as a much needed measure of reform, and hopes very earnestly that His Majesty's Government will grant the necessary facilities for it to become law. There are, however, one or two improvements which the members of the Magistrates' Association feel can be made in the Bill, and I shall venture, if I may, to mention one or two of those improvements this afternoon.

In our opinion there are two main defects, if they can be called defects, in this Bill. The first is that the weapon of conciliation is hardly given sufficient play at the outset of any proceedings which may be taken in the courts of summary jurisdiction. The second is that the Bill hardly provides sufficiently for the special cases which may arise in rural areas as opposed to those larger towns where cases of this kind are frequent. In our view Clause 2 of this Bill, which is the first clause to which I wish to allude, in a sense enables one of the spouses to declare war in this matter at an unnecessarily early period in the proceedings, and that circumstance is bound to have an unfortunate effect upon the other spouse. The procedure of starting these proceedings by summons is, in our view, an unfortunate one. The word "summons" carries with it a flavour of criminality which is wholly unnecessary in these proceedings. It is apt to sound provocative, and will, we think, not be the best method of producing that measure of conciliation which is so desirable. To avoid this difficulty it is suggested that we should start at one step lower down the ladder of procedure than is contemplated by the noble and learned Lord who introduced this Bill. We would insert an extra preliminary step before the taking out of a summons, and we would say that there should be an application for a summons made to the magistrates by the complainant personally—an application which could be either written or verbal, and which could be made in an entirely informal way.

The noble and learned Lord mentioned that the main purpose of this Bill was to help the less well-to-do, and in our view that object could better be achieved by enabling such persons to go in person, without any professional assistance and without any written document being necessary, to the magistrates and to initiate these proceedings. It would be easy, it would be inexpensive, and in our view complainants would be more likely and less hesitant to adopt such procedure. The alternative procedure by way of information at the outset is more expensive and has the difficulty that it presumably could not be done without professional legal assistance. That might act as a deterrent to the complainant at the very moment when such deterrent would be most harmful. In our view, therefore, there is an unnecessary stumbling block just at the point where it would be most dangerous. It would seem to be preferable to insert this preliminary step and then, if there is no settlement and if there is consent as is allowed for in the Bill, there could be a summons, and if there is neither consent nor settlement, then the summons could be made returnable for a particular date. I observe that the order which is contemplated to be made as a result of the summons is to be limited as regards time. It seems to us to be unnecessary so to limit the order, or, rather, to make it apparently compulsory to impose some limit upon this order. Why should there be a limit in time for this order, and what is to happen when that time limit has expired?

I pass to the second observation which I ventured to make, and that was that this Bill was rather designed to work in the large towns And cities of this country and hardly gave sufficient scope for the rural areas where magistrates may have to travel long distances to the court and where cases of this kind may be very few and far between. It seems to us that, while entirely agreeing that there should be special sittings of the court to deal with business of this kind, it is unnecessary for those special sittings to be on separate days and it would be sufficient if provision was made for special sittings to be inserted into the ordinary sittings of the court or taken after the ordinary business was concluded. That would meet the case where magistrates may have to travel long distances for a few cases.

The Magistrates' Association have ventured to take exception to the procedure outlined in Clause 4, whereby these rules are to he made by the Home Secretary and not by the Lord Chancellor, In their view it is unnecessary to depart from the precedent by which such rules have been in the past in similar cases made by the head of the legal profession. It would seem to be best that the Lord Chancellor who himself appoints the justices who are to work this Bill should make rules under which they should work. Then again, with regard to the panels which are to be set up provision is made in the Bill for its working in the Metropolitan Police District and in rural areas by lay justices, but there appears to be no provision for the working of it in those towns and cities which have stipendiary magistrates. It would appear to us to be necessary to insert a further subsection in order to remedy that omission. These panels, no doubt, generally speaking are very requisite, but in our opinion they should be optional and not compulsory. In most cases, no doubt, they would be desirable, but there may be some cases where there are very few magistrates available and then the question whether panels should be made should be left to the discretion of the justices themselves. It is therefore suggested that it should be enacted that justices "may" appoint panels rather than that they "shall" appoint these panels.

We also think that it should be left to the discretion of the justices themselves as to framing rules under which they should work, thus enabling them to adapt those rules to local conditions. There are precedents for that, I believe, in the Summary Jurisdiction (Appeals) Act, where the committees who hear the appeals are appointed by the justices themselves and the rules under which those committees work are framed by the justices themselves in Quarter Sessions. There seems to us to be no reason why the same principles should not be followed in this Bill. That would make for greater elasticity and would remove what must be the difficulty of framing in London rules which are to operate in every district of the country, rural and urban.

I would like to make one observation with regard to Clause 5. That is a clause which will doubtless be generally approved. It is there arranged that the Press shall not be present during the hearing of the proceedings in the High Court as well as, I think, in the court of summary jurisdiction. But although they are not allowed to be present there seems to be nothing to prevent the Press from publishing reports of such proceedings, and if that is so that seems to be an undesirable situation. If a reporter is not allowed to be present but is not forbidden to publish what happens, he may obtain from some careless person an entirely inaccurate account of what took place and more damage may be done than if the reporter had been actually present.

I have mentioned one or two Amendments which it is proposed to move with regard to this Bill, but I do not want it to be thought for one moment that the Magistrates' Association do not wholeheartedly welcome this measure and do not appreciate to the full the benefit which will accrue from the work which the noble and learned Lord who introduced it has done as a result of his great wealth of experience in these matters. If I may respectfully say so we hope that this Bill will become law, and I should like to add that, whilst venerating our legal system and preserving the reputation which it rightly enjoys, we should never hesitate to give unremitting attention to bringing up to date and into line with modern conditions the procedure under which its institutions work. Therefore I venture most humbly and respectfully to hope that this Bill will without much delay become law.

THE LORD BISHOP OF NORWICH

My Lords, we have just listened to a very interesting criticism of certain clauses of the Bill to which no doubt careful consideration will be given when the Committee stage is reached, but earlier than that I would like to give my own wholehearted support to the Bill, which seems to me to give opportunity and scope to wise trends of reform. Some of us have experienced the way in which in our poorer districts, in connection with our public school settlements and other plans, the poor gladly turn to those whose advice they value and whose help they seek. This Bill appears to me in a very special way to give the opportunity and scope to that kind of social endeavour which I believe to be of the greatest importance at the present time. If those who turn to the magistrates in this manner find that their differences are hardened by the legal atmosphere in which they are placed it is a subject of very great regret. Between themselves very often these partisans feel bound to make good their own case, to find in regard to one another those very items which are always easily found and go to support each party in his or her opposition to the other.

The wise outsider in the right way and at the right time can urge a certain give and take which is of immense value in all matrimonial disputes. He can do something more than that. He can urge upon the parties that at bottom they are really friends, that they are husband and wife, that the day was when they loved one another very dearly and that probably it will be so again. He can in a detached way remind them of their best selves, of their best hopes, and point out the way in which their differences may be settled and their best hopes realised. It may seem strange that that kind of thing can be done better by an outsider, but I suppose it is a part of human nature that quarrels can often be healed and dealt with by someone who comes from outside and brings to hear wise and friendly advice upon the two who are at variance. But all this sort of thing must be done in the right atmosphere, and I do not think that the atmosphere of a formal court is quite the best in which to do it very well.

The presence of gossiping neighbours also introduces an unpleasant element which we would wish to avoid. I am often struck, in my dealings with the lives of those who live in humble homes, with the contrast which frequently exists in their attitudes to one another. When they are in great affliction, when they are very poor, when some sorrow or some sickness has come, their goodness to one another is almost unbelievable. On the other hand, when there is some little unpleasant or nasty gossip, then with a wasp-like vigilance they are ready to repeat it and to make the most of it, and that is just the thing which is most likely to spoil any opportunity of reconciliation. This Bill provides against that kind of false atmosphere. As it is, the magistrates can do much and they do do much, but I believe that this Bill will give them the opportunity of doing more in a better way, and will enable them to have fuller scope to be real friends to the poor in their domestic troubles. I hope very much that your Lordships will give a Second Reading to this excellent effort in; social legislation.

THE EARL OF FEVERSHAM

My Lords, I hope that the noble Lord who has addressed your Lordships' House for the first time will not think that I presume when I make reference and pay tribute to the speech which he has made. It has been a valuable contribution to the debate and at a future date when the Bill will be discussed clause by clause, not only the Department which I represent but also the noble Lord who introduced this Bill will be glad of the speech which the noble Lord has made on the Second Reading.

LORD MERRIVALE

Hear, hear.

THE EARL OF FEVERSHAM

Your Lordships will appreciate that this is a Bill to make certain changes in the procedure of courts of summary jurisdiction when dealing with matrimonial cases. The main object of these changes, as the noble Lord, Lord Merrivale, has already said both to-day and when he introduced a similar Bill at the end of last Session, is to facilitate the use in proper cases of methods of conciliation. As the noble Lord, Lord Merrivale, pointed out in November, under the existing procedure, when a case comes before a court of summary jurisdiction, something like a dog fight goes on. There is a public encounter of these married people, and if there was a possibility of their coining 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. I am sure that everyone will agree that all practical steps ought to be taken to prevent crystallisation of a state of hostility between married people whose disputes are capable of being resolved and are not such as to necessitate a complete and permanent disruption of their domestic lives.

The problem how to deal with these cases in such a way as to make conciliation possible, or at any rate in such a way as to avoid aggravating hostility between parties who are only temporarily estranged, falls into two parts. The first question is, what can be clone and ought to be done to prevent such cases coming into court at all? The second question is, what ought to be the court procedure for dealing with cases which cannot be settled out of court? Without in the least minimising the importance of this second question, I submit to your Lordships that the solution of it cannot be reached without a full knowledge of the answer to the first question. As I pointed out when the previous Bill was debated, and as the noble Lord, Lord Merrivale, will know, it is a common practice when an application for a separation order has been made, for the court of summary jurisdiction to ask the probation officer or the police court missionary to interview the parties and to try to bring about a reconciliation. In many districts very extensive and apparently successful use is made of this method. At some courts, hundreds of cases are settled informally by this procedure and only a very small proportion of the applications result in actual proceedings in court. In other places comparatively little use is made of these informal methods and large numbers of cases come into court which would not have come into court had there been available a probation officer with the time and ability to deal with them.

Even in places where it is the general practice for the officer to interview applicants and to try and bring about a reconciliation, I do not claim that the existing procedure is perfect or that the use of this procedure eliminates the need for an improvement of the court procedure. It may well be that the existing system of dealing with cases in an informal manner through the probation officer is capable of improvement and amendment, and even when all practical improvement in these informal methods has been affected, it will still, I think, be of vital importance to improve the court procedure for the purpose of dealing with that residue of cases in which extra-judicial methods have been tried and failed. But as the most reverend Primate has himself asked, is it not premature to proceed with legislation for amending the court procedure at the very moment when the whole question of procedure by extra-judicial methods is under consideration by a Departmental Committee? It is quite true, as the noble Lord has said, that the terms of reference of this Committee do not cover the subject matter of the Bill. The Committee is appointed to investigate the social services connected with courts of summary jurisdiction; but amongst those social services special importance is attached to conciliation work, and it will be within the functions of that Departmental Committee to report how far these extrajudicial methods can be properly and effectively used and what improvements are necessary to enable this social service to be adequately administered.

Incidentally it may be said that this Committee, when taking evidence from justices, justices' clerks, probation officers and others on the social services of the court, will inevitably collect a great deal of information relating to the questions dealt with by this Bill. They will hear from experienced witnesses how far conciliation in cases where conciliation is practicable and desirable has been hindered or frustrated by the present procedure prevailing in courts of summary jusisdiction, and they will learn what are the effects of the publicity attaching to those proceedings. The question how best to regulate the procedure of the court obviously, in my opinion, cannot be detached from the question how far conciliation can properly be undertaken by informal methods outside the court; and, at a time when a Departmental Committee is exploring the whole question of the extrajudicial methods, it would seem to be perhaps unwise, without waiting for the information which that Committee will collect, or for the recommendations which they will make, to embark on legislation dealing with the procedure of the courts.

The suggestion that legislation should he postponed pending the Report of the Committee now sitting, whose members have already heard much valuable evidence from witnesses, is put forward not from any desire to shelve or postpone indefinitely the question raised by this Bill, but from a sincere conviction that the problems raised by the Bill can be more effectively dealt with when the Report of the Departmental Committee is in our hands. I hope that the noble and learned Lord, who has reintroduced this Bill, will favourably consider not taking it a further stage until we hear not only the evidence submitted to that Committee but the recommendations of the Committee. As a member of that Committee I should like to give a personal assurance to the noble and learned Lord that, so far as it is within my power, I shall endeavour to see not only that the Report is brought to the notice of the House, but that full discussion shall then take place of the details of the clauses within the Bill now before your Lordships and of the recommendations within the Report. I submit to your Lordships that His Majesty's Government would not be justified in carrying this Bill through to its final stages until they are in a position to form a judgment not only on the problems of court procedure, but on the closely connected problems of the extra-judicial methods which are at present being examined by the Departmental Committee. I can only repeat that the Department which I have the honour to represent in this House are in full sympathy with the chief issue which the noble and learned Lord has brought before the House, and which he has himself said has been long delayed, but we think that the matter can be more adequately dealt with if we have the full facts at our disposal.

LORD MERRIVALE

My Lords, if I may say a very few words, I would like to thank the noble Lord who made so very interesting a maiden speech for his criticisms. As I said when I originally introduced the Bill, this is a new proposal, and no one mind is likely to find the best methods of dealing with all the details of it. As I said in moving the Second Reading to-day, I welcome the observations of the Magistrates' Association. I think they must be very useful. I could go into detail about them, but I will content myself with saying that my noble friend and I could come to terms upon the whole matter in the course of an hour or so, if we discussed it, or reduce the differences to two or three questions which could be easily disposed of. I will not go further than that.

With regard to the observations made by the noble Earl on behalf of the Home Office, I would like to say this to him. As he has pointed out, this Bill deals with judicial procedure. It does not purport to put any sort of fetter upon that informal action which goes on outside, and which it is most beneficial should go on. Let the Home Office encourage it in every way. But I confess I am a little dismayed at the prospect of holding up this Bill during the whole of the present Session, and taking the chance of its coming on sometime next year, and then possibly being met by some difficulty of the same kind. If I am right in believing that the main question is one of judicial procedure, and if it is further simplified within the terms of the Bill and by giving the justices the powers provided by the Bill, we should, I think, have made a step in advance, and I hope my noble friend will consider whether that is possible, and whether it would not be better to do something rather than to go on thinking about something.

On Question, Bill read 2a.