HL Deb 07 March 1935 vol 96 cc11-25

Order of the Day for the House to be put into Committee read.

LORD MERRIVALE

My Lords, if I may be allowed formally to move that the House do now resolve itself into Committee on this Bill, it will enable me to make a short statement which I hope will have the result of saving your Lordships' time. Those of you who are interested in this Bill will have seen that a series of Amendments has been put on the Paper as a result of a consultation which I had with the representatives of the Parliamentary Committee of the Magistrates' Association. The noble Lord, Lord Merthyr, raised certain questions upon Second Reading, and, as I said then, I was merely making general proposals which I wished to have adapted in the best mode for the common interests. I met the representatives of the Magistrates' Association, Lord Merthyr and Sir Edward Marlay Samson, and we discussed the whole matter. The Amendments I have put upon the Paper are in the main the result of those discussions and to a great extent they are drafting Amendments.

One question which we discussed in a good deal of detail was whether it was not desirable to sever the conciliation proceedings from a magisterial hearing of a summons. Well, I think that was a sound proposal, and so the outstanding change in the Bill is the change by which it is provided that upon a sworn statement by the complainant in such cases as are here in question, the justices who are concerned with the administration of justice in the area concerned shall consider that statement, and that, thereupon, it shall be open to them to have the parties before them with a view to conciliation. That, of course, is much more desirable than a summons issued and served and the parties brought to the court in a formal way for a hearing. If conciliation fails the ordinary procedure can be followed, but conciliation will still be practicable and can be resorted to. That is the main change. As to the other Amendments, they result in great part from that change except that, when it was brought to my notice that the City of London was not provided for, I introduced a subsection which will extend the operation of the Bill and cover the City of London. I am much obliged to your Lordships for allowing me to make this short statement because it will avoid the necessity of a number of statements upon successive Amendments.

Moved, That the House do now resolve itself into Committee.—(Lord Merrivale.)

On Question, Motion agreed to.

House in Committee accordingly:

[Lord STANMORE in the Chair.]

Clause 1 agreed to.

Clause 2:

Rules for proceedings in courts of summary jurisdiction.

2. Proceedings in courts of summary jurisdiction to which this Act relates shall be subject to the following rules:—

(i) Such proceedings shall be instituted by summons to be issued upon an information deposed to by the complainant or applicant which shall set forth the particulars of the matters alleged and intended to be relied upon, and the court dealing with the summons shall have before it the information whereon the summons has been granted.

(ii) (a) Before a public hearing of any such proceeding is had, the court shall consider having regard to the information whether it will be well to hear the parties in private with a view to settlement by mutual consent of the matters in question and, if it shall think fit, shall direct the parties to appear personally before the court and shall hear them in private with the intent before mentioned, and may receive in their presence information from any person whom the justices believe to have knowledge or the relationship of the parties and if upon such hearing no settlement is arrived at, but the parties consent, may make any order within the jurisdiction of the court to have effect for a period limited by the order, and if in case there shall be no such settlement or consent may adjourn the hearing of the summons to as early a date as may appear to the court to be advisable upon such terms as to the intervening period as shall be within the jurisdiction of the court to order upon the hearing of the summons.

(b) No report of proceedings of a court under the provisions of the preceding subparagraph may be published without leave of the court.

(iii) During the subsistence of an order made under the procedure hereinbefore prescribed in paragraph (ii) of this section, neither of the parties may take proceedings against the other in respect of any matter comprised within the terms of the information or without leave of the court any matter of earlier date than the information.

(iv) In case either party shall wilfully disobey an order of limited duration made under the provisions of paragraph (ii), the court if application shall be made in that behalf may proceed to hear and determine the questions raised by the information and summons.

LORD MERRIVALE moved, in paragraph (i), to leave out "summons to be issued upon an information" and insert "a statement." The noble and learned Lord said: What is now proposed is that instead of proceedings to be instituted by summons to be issued upon an information, proceedings shall be instituted by a statement deposed to by the complainant or applicant. That avoids the formal procedure of a summons and will enable the parties to come regularly before the justices.

Amendment moved— Page 1, line 18, leave out from ("by") to ("deposed") in line 19, and insert ("a statement").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE moved, in paragraph (i), to omit all words after "relied upon." The noble and learned Lord said: This is consequential and administrative. The justices will have the information before them in the ordinary course, as that is what they are dealing with.

Amendment moved— Page 1, line, 22, leave out from ("upon,") to the end of the paragraph.—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next two amendments are drafting and consequential.

Amendments moved— Page 2, line 1, leave out ("of") and insert ("in"). Page 2, line 3, leave out ("information") and insert ("statement").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved, in paragraph (ii) (a), to leave out "the court and" and insert "a justice or justices who". The noble and learned Lord said: This is one of the matters which I discussed with the representatives of the magistrates, and it was thought desirable and necessary, in view of the change proposed, that instead of a personal appearance before the court it should be provided that a justice or justices might be directed to see the parties upon the statement.

Amendment moved— Page 2, line 7, leave out from ("before") to ("shall") in line 8, and insert ("a justice or justices who").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next three Amendments are consequential. In regard to the third, if a settlement is arrived at with the parties' consent such justice or justices may make any order within the jurisdiction of the court. That is to avoid the necessity of a public hearing.

Amendments moved— Page 2, line 9, after ("and") insert ("who") Page 2, line 11, after ("the") insert. ("justice or") Page 2, line 14, after ("consent") insert ("such justice or justices").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved to omit from paragraph (ii) (a) the words "to have effect for a period limited by the order." The noble and learned Lord said: The magistrates' representatives thought these words were superfluous. I think so, too.

Amendment moved— Page 2, line 15, leave out from ("court") to ("and") in line 16.—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next Amendment is to remove a misprint.

Amendment moved— Page 2, line 16, leave out ("if").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE moved, in paragraph (ii) (a), to leave out all words after the last "consent" and insert "the complainant or applicant may proceed by summons to obtain a hearing and decision of the matters in question by the court." The noble and learned Lord said: If there is no settlement by consent the complainant may proceed by summons. The Amendment omits the words previously in and specifically provides to that effect.

Amendment moved— Page 2, line 17, leave out from ("consent") to the end of the paragraph and insert the said new words.—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next two Amendments are consequential.

Amendments moved— Page 2, line 31, leave out ("information") and insert ("statement") Page 2, line 33, leave out ("information") and insert ("statement").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved, in paragraph (iv), to leave out "wilfully." The noble and learned Lord said: This is a modification of paragraph (iv). "Wilfully" is unnecessary now and should be omitted, and as to the further proceedings the provision is proposed to be that the court, upon complaint made of disobedience to an order, may direct the issue of a summons and proceed thereon in due course of law.

Amendment moved— Page 2, line 34, leave out ("wilfully").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next Amendment is consequential.

Amendment moved— Page 2, line 35, leave out ("of limited duration").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE moved, in paragraph (iv), to leave out all words after "court" and insert "upon complaint made on that ground may direct the issue of a summons in respect of the matters in question and proceed thereon in due course of law." The noble and learned Lord said: This is consequential.

Amendment moved— Page 2, line 36, leave out from ("court") to the end of the paragraph and insert the said new words.—(Lord Merrivale.)

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

THE EARL OF FEVERSHAM

As this clause is in a way the most striking feature of the Bill, I think I ought to make some observations on it on behalf of the Home Office, before it is accepted. Before doing so, it would be appropriate to give briefly the reasons why the Home Office have decided not to move Amendments on the present occasion. Your Lordships will perhaps recall that on the Second Reading I pointed out that the problem of matrimonial disputes falls into two parts—first, what can be done and ought to be done to prevent such cases coming into Court at all; arid, secondly, what ought to be the court procedure for dealing with cases which cannot be settled out of court. The view of the Home Office is that the second question cannot be properly answered until the first question is settled, and, in accordance with the promise made last year when this subject was first debated in your Lordships' House, the Summary Courts (Social Services) Committee was appointed to enquire into the first part of this problem. This Committee is now at work and has already taken a good deal of evidence from magistrates, clerks of the peace, and probation officers. As was expected, much of the evidence offered has thrown a considerable amount of light on the question of court procedure which is now being dealt with in the Bill of the noble and learned Lord. For this reason the Home Office feels that it must await the Report of this Committee before expressing any definite or final opinion on the proposals of the Bill.

But to revert to Clause 2; it proposes that in every case in which on the statement of fact there appears to be a chance of a settlement the justices themselves should take part in a private and informal hearing at which both parties are present and endeavour to arrive at a settlement. The Home Office does not feel satisfied at present that attempted conciliation by the court is always, or indeed in most cases, the best method. There are many who think that conciliation in these difficult matters is likely to be most successful when it is undertaken by some person of wide experience and special qualifications, who often will not be a member of the bench. The person at present employed for this purpose in most courts of summary jurisdiction is the probation officer or court missionary, and it is believed that a high standard of success is being reached by this method. Although some justices may be well qualified for the delicate task of conciliation, and may be able to give great assistance in this direction, it is necessary to consider the position of the hundreds of courts of summary jurisdiction throughout the country. I expect I shall have your Lordships' agreement when I say it is by no means certain that suitable justices will always, in every case be forthcoming. The question arises whether a case has been made out for substituting conciliation by the court for the existing method of conciliation by the probation officer. It is this very question which the Summary Courts (Social Services) Committee is investigating, and that is why the Home Office feels it necessary to suspend judgment until the result of this investigation is learned.

Apart, however, from this general observation, there are one or two particular aspects of the clause about which the Department that I represent feels very grave doubt. It is inevitable that in some cases the attempt at conciliation by the justices at a private hearing will fail, and that the parties will insist on a formal hearing on a summons. It would seem to be very undesirable that a justice or justices who may have taken part in the private and informal proceedings should subsequently adjudicate on the summons. The mind of the particular justice or justices must inevitably become prejudiced by what has taken place at the private hearing and be would not be in a position to administer justice impartially. It may also be seriously questioned whether it is right, as the clause proposes, to give such wide powers to justices who take part in the private and informal sittings. With the Amendments which have been introduced by the noble and learned Lord, it would be possible for the justices, and even for a single justice, with the consent of the parties, to make any "order within the jurisdiction of the court," which would presumably include not only a maintenance order but also a separation order. It would seem that a proposal which would enable orders of this serious import to be made without the safeguards provided by the existing law is not one which could be accepted without much fuller consideration. I think it only proper that I should put these aspects of the clause before your Lordships before you agree to it.

LORD MERRIVALE

I cannot help thinking that the noble Earl's advisers at the Home Office have not read the Amendments. If they had, they would have seen that the Amendments propose to do away in the main with the objections which were previously made on behalf of the Home Office. After consultation with the justices, I took this course, not only out of consideration for the advice of the justices, but out of consideration for the view taken by the Home Office. That is the situation at the present time. It is not the fact that it is now proposed that the justices who would hear a summons should conduct the conciliation proceedings. The court can nominate a justice or justices to see the parties. The Home Office doubts whether there is sense enough in an ordinary bench of justices to undertake a task of that kind. If there is not, they ought not to be justices. After all, their business is the well-being of the community in which they discharge their duties. As to the probation officer, of course, I understand why the official view is that these things should always be undertaken officially. The probation officer is appointed and has the confidence of the Home Office. I dare say he deserves it, but it is a different thing for married people to be put under the hand of an official about whom they know quite well in the district, instead of being dealt with by neighbours of their own of a different standing with a view to the specific object of their reconciliation. Then it is said that the magistrates may make an agreed order by consent, and that it ought to be done after a public hearing. Why should it be if the subject is one in which a public hearing can only be mischievous? Those are the observations I desire to bring to the notice of the advisers of my noble friend at the Home Office.

THE LORD ARCHBISHOP OF CANTERBURY

May I ask the noble and learned Lord whether in view of what he has said he contemplates that the probation officers or police court missionaries will not be available for the assistance of these justices or any single justice to whom this difficult task of conciliation is entrusted? I should imagine that the last thing he wishes to do is to exclude from the agencies which are engaged in this necessary work of conciliation the peculiar experience, knowledge and tact which have been found already in numberless cases throughout the country to be exercised by the police court missionaries or the probation officers.

LORD MERRIVALE

I am much obliged to the most reverend Primate. I had hoped I had made it clear on a previous occasion that there is language in the Bill which is intended to enable and encourage the justices to avail themselves of the services of the probation officer or anybody else who can help them. They can call in a friendly neighbour, they can call in a friendly probation officer, but they must use their common sense about the matter, according to my view of the case. I hope the answer is clear to the most reverend Primate, to whom I am much indebted for his interest in this Bill.

THE LORD ARCHBISHOP OF CANTERBURY

I only thought that some words which fell from the noble and learned Lord may have implied some degree of suspicion on probation officers and their work.

LORD MERRIVALE

Not in the least.

Clause 2, as amended, agreed to.

Clause 3:

Summonses and applications under Act to be heard at special sittings of court.

3.—In courts of summary jurisdiction summonses and applications to which this Act relates shall be heard and determined at sittings to be specially fixed and apart from the general business of the court.

LORD MERRIVALE

The first two Amendments in my name to this clause are consequential. I beg to move.

Amendments moved— Page 2, line 40, after ("jurisdiction") insert ("applications and"). Page 2, line 41, leave out ("and applications").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved to leave out the last words of the clause: "and apart from the general business of the court." The noble and learned Lord said: This Amendment the justices' representatives discussed with me and they said special sittings of the courts could be fixed. It is not necessary to say that it shall be apart from the general business of the court if it is a special sitting which will deal with a special matter. That seemed to me to be good sense and I adopted the suggestion.

Amendment moved— Page 2, line 41, leave out from ("fixed") to the end of the clause.—(Lord Merrivale.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4:

Power to make rules.

4.—(1) Rules may be made by the Home Secretary with the approval of the Lord Chancellor to govern the procedure of courts of summary jurisdiction as to the hearing of summonses and applications to which this Act relates and to provide for, inter alia—

  1. (a) the hearing of such summonses and applications within the Metropolitan Police district by a police magistrate 21 sitting with a justice or justices of the peace selected from a panel of justices to be constituted as hereinafter mentioned; and
  2. (b) the hearing of such summonses and applications in courts of summary jurisdiction outside the Metropolitan Police district by justices selected from a panel of justices to be constituted as hereinafter mentioned.

(2) Panels of justices for the duties mentioned in paragraphs (a) and (b) of subsection (1) of this section shall be constituted in accordance with rules to be made by the Lord Chancellor with the concurrence of the Secretary of State, and rules so to be made may give directions as to the qualification and mode of selection of a justice for appointment as chairman of a court sitting in a petty sessional area and as to the service of women justices in such courts.

LORD MERRIVALE moved, in subsection (1), to leave a out "Home Secretary with the approval of the." The noble and learned Lord said: It has been thought that it would simplify the procedure here if the rules to be made, which are rules really upon a special subject, were made by the Lord Chancellor who, of course, may consult, or his advisers may consult, any representative of the Crown. It was thought that the words which provided for the making of the rules by the Home Secretary with the approval of the Lord Chancellor should be omitted, and that it would be better that the Lord Chancellor should be responsible for the rules to be made, and that he should consult all those whom he thought fit to consult.

Amendment moved— Page 3, line 1, leave out from ("the") to ("Lord Chancellor").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

I beg to move the next five Amendments standing in my name, which are drafting.

Amendments moved— Page 3, line 4, after ("of") leave out ("summonses and") Page 3, line 4, after ("applications") insert ("and summonses") Page 3, line 5, leave out ("to") and insert ("may") Page 3, line 6, leave out ("summonses and") after ("applications ") insert ("and summonses").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved, in subsection (1), after paragraph (a), to insert the following new paragraph: (b) in am district served by a stipendiary magistrate the hearing of such applications and summonses by such a magistrate sitting with a justice or justices of the peace selected from such a panel of justices. The noble and learned Lord said: With regard to this and the proposals which follow, I ask leave to say that with regard to some of the proposals previously made relating to the constitution of the panel of justices, it was thought to be advisable that the rules should govern the constitution of the panel. A question arose as to the inclusion of women justices which, of course, I think is most desirable. It was pointed out that the rules did not give the degree of latitude which was desired and therefore I move this Amendment.

Amendment moved— Page 3, line 11, at end insert the said new paragraph.—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next Amendment in my name is drafting. I beg to move.

Amendment moved— Page 3, line 12, leave out ("summonses and").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next three Amendments in my name are consequential. I beg to move.

Amendments moved— Page 3, line 12, after ("applications") insert ("and summonses.") Page 3, line 13, leave out from ("jurisdiction") to ("by") in line 14. Page 3, line 18, after ("(b)") insert ("and (c)").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved, in subsection (2), to leave out all words after "shall be" and insert "appointed annually at a general meeting of the justices of each petty sessional division." The noble and learned Lord said: The proposal in the Bill as it got its Second Beading was that the panel of justices should be constituted "in accordance with rules to be made by the Lord Chancellor," but the representatives of the justices thought it would be better that the panels should be appointed at the annual meeting of the justices of the petty sessional division.

Amendment moved— Page 3, line 19, leave out from the first ("be") to the end of the subsection and insert the said new words.—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE moved to insert the following new subsection: (3) In the City of London courts of summary jurisdiction for the purposes of this Act shall be constituted in such manner as the Court of Lord Mayor and Aldermen of the City may from time to time determine The noble and learned Lord said: This Amendment is intended to put the Bill right in respect of the City of London. The City Remembrancer was good enough to call my attention to the omission, and indeed was good enough to suggest the necessary Amendment. I beg to move.

Amendment moved— Page 3, line 25, at end insert the said new subsection.—(Lord Merrivale.)

On Question, Amendment agreed to.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

THE EARL OF FEVERSHAM

Before we leave this clause I would ask your Lordships' permission to make one general observation with regard to subsection (2). So far as the Metropolitan Police Court area is concerned the jurisdiction of the Metropolitan magistrates has for many years past been completely separated from that of the justices, except in the holding of juvenile courts where, tinder the provisions of the Children and Young Persons Act, justices assist the Metropolitan magistrates. A proposal to extend the same principle to matrimonial work could not be accepted without the fullest inquiry, and I do not think the Home Office could at the present stage, without due consultation with the Metropolitan Police magistrates, express any concurrence with the proposal.

The Home Office also feels some doubt whether in all the circumstances it is wise to place upon the justices a statutory duty of electing each year a special panel for the sole purpose of hearing matrimonial cases. There is of course the precedent set up by the Children and Young Persons Act in respect of juvenile courts, but the proposed extension of this system to matrimonial work calls for careful consideration and may give rise to difficulty, especially 'in the smaller petty sessional divisions where the number of justices on the Commission is limited. There are many who think that a justice, once appointed, ought to be fit to undertake any of the duties required of him and that there may be some risk in extending the principle of selected panels. The information in the possession of the Home Office suggests that those justices who feel that they have a special aptitude for this type of judicial work, and desire to take part in it, are usually given the opportunity of doing so, and in this way something of the nature of a selection in fact takes place. This voluntary assumption of duties may on the whole be more satisfactory than insistence on formal selection.

LORD MERRIVALE

Of course it is open to the Home Office, when they have made up their minds on this matter, to move Amendments at some stage, either here or elsewhere. I have done the best I could in the proposals I have made.

Clause 4, as amended, agreed to.

Clause 5:

Provision as to hearing of evidence.

5. Upon the hearing in the High Court of Justice of any matrimonial cause or matter, and upon the hearing before any court of summary jurisdiction of any summons or application to which this Act relates, the said courts respectively shall henceforth have a discretionary authority to direct that awhile evidence is being given no persons other than the parties and their professional representatives and the witnesses under examination shall be present, such direction to be given only in cases where it shall appear to the court necessary for the clue administration of justice or proper in respect of public decency. Provided always that the decision of the court upon the summons or application shall in all cases be given in open court.

LORD MERRIVALE

The first two Amendments to this clause are consequential Amendments. I beg to move.

Amendments moved— Page 3, lines 28 and 29, leave out ("summons or"). Page 3, line 29, after ("application") insert ("or summons").—(Lord Merrivale.)

On Question, Amendments agreed to.

LORD MERRIVALE moved, after "present," to insert, "and that no report of evidence so given shall be published." The noble and learned Lord said: This is a question of directions by the justices which will prevent the humiliation to women, in particular, of disclosing wrongs of which they complain, in the presence of all sorts of people. We know that frequently this limits the capacity of a witness to give evidence and sometimes prevents her venturing to take any proceedings. There was au error in the Amendment as it was printed on the Paper. I dare say it was clue to my bad writing. The word "repeal" appears on the Paper, but it, should be "report." I beg to move.

Amendment moved— Page 3, line 34, after ("present") insert ("and that no report of evidence so given shall be published").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE

The next Amendment is a drafting Amendment. I beg to move.

Amendment moved— Page 3, line 34, leave out ("direction") and insert ("directions").—(Lord Merrivale.)

On Question, Amendment agreed to.

LORD MERRIVALE moved to leave out "the summons or application" and insert "any summons." The noble and learned Lord said: This is a necessary Amendment resulting from the changed provisions of the earlier part of the Bill, provisions providing that the decision of the court upon any summons shall be given in open court. I beg to move.

Amendment moved— Page 3, line 38, leave out ("the summons or application") and insert ("any summons").—(Lord Merrivale.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Remaining clause agreed to.