HL Deb 13 July 1937 vol 106 cc338-48

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

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

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1 [Constitution of courts of summary jurisdiction for domestic proceedings]


If I am in order I would like to ask the noble Lord in charge of tins Bill why it is that three has been selected as the number of magistrates who alone are to be entrusted with the hearing of these proceedings. The Bill deals, among other matters, with disputes in regard to the guardianship of infants and proceedings in relation to separations between husbands and wives, and also proceedings for bastardy. I speak as a Recorder for many years and as one who is at present a Chairman of Quarter Sessions. I venture to say that no cases give one more difficulty, speaking generally, than do husband and wife cases—difficulty, I mean, as to the ascertainment of the truth. That is equally so in very many cases of bastardy. In these proceedings one is set a very extremely difficult question of fact to decide.

The view that I have always taken of petty sessional courts is that magistrates are selected because of their known character and the esteem in which they are held by the people among whom they live. As a consequence of this people have confidence in the decisions at which the justices arrive. The justices themselves are kept straight on questions of law by the magistrates' clerk. To my mind the strength of that procedure rests in a great measure in the number of magistrates sitting to decide these questions of fact; indeed, I go so far as to say that the same principles apply to the magistrates' decisions as apply to the decisions of a jury, and those principles are the foundation of the confidence which is placed in the whole of our criminal proceedings. This Bill slipped through the other place without much argument; in fact, with no argument at all on Third Reading. The question I wish to ask before we proceed further is on what principle the number of three magistrates to whom the decision of these difficult questions should be entrusted, was based. I should have liked five, but not being very cognisant with procedure in your Lordships' House I am not sure whether I can move to make the number five.


It falls to me to answer the question put by the noble Lord. I would refer him if I may once more to the Report of the Departmental Committee on Social Services in Courts of Summary Jurisdiction, which, as I pointed out on Second Reading, forms the basis of the Bill and really provides the reason for putting a restriction upon the number of justices who should sit to hear these cases. I cannot do better, I think, than quote part of paragraph 30 of the Report of the Departmental Committee, in which they say: A crowded bench, so far from assisting to produce the right sort of atmosphere, is likely to add to the natural embarrassment of the parties to the dispute. The proposal to limit by Statute or by rule the number of justices entitled to adjudicate in these cases seems to us consistent with common sense and we strongly support it. The number commonly favoured was three or at most five. It appears to us that a bench of not more than three justices would be the best, and we recommend this limitation. That is the paragraph upon which this particular clause of the Bill was as based. That the number should be an odd one needs no further argument if a number is to be fixed at all, and I can only add that this Report, from which I have just quoted part of a paragraph, was the unanimous Report of an experienced and qualified Committee.

The noble Lord who has just sat down said, I think, that this Bill slipped through another place, but I would venture to point out that it was very carefully considered in Committee in another place. The proceedings in Committee there lasted, as a matter of fact, for four days and quite a large proportion of the time taken by the Committee was devoted to this particular clause in the Bill. It was very fully discussed and, whilst some preference was indicated for the figure five as against three, eventually the smaller figure proved to be the more popular. Generally speaking there are, as I think must be fairly plain, arguments for the restriction of the number of justices sitting in a case which is by nature civil and not criminal, particularly, as I explained at some length on Second Reading, where one of the parties to the case is a woman unaccustomed to legal procedure. It is not an exaggeration if I add that she is very often precluded from putting her case properly before the court by the mere sight of a large bench of justices—it is reported that sometimes the number is anything up to thirty—present in court to hear the case. The argument was fully gone into by the Departmental Committee whose Report has been very faithfully followed by the promoters of this Bill, and the promoters think it is of considerable importance to limit the number of justices sitting. Therefore they are very keen that this clause should be retained. I hope I have in some way answered the criticism of the noble Lord and that he will not object to the clause being retained.


I cannot agree that my criticism has been answered. I raised no objection to the limitation of the number of justices. I only objected to the number being cut down to three. I have heard no reason given why three is any better than five, so far as the litigants are concerned. I must accept, I suppose, the findings of the Departmental Committee, although I have never noticed any difficulty in either a husband or wife putting a case before the court. However, having raised the matter for your Lordships' consideration I do not feel that it is my duty to press it any further.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3:

Newspaper reports of certain domestic proceedings.

3.—(1) It shall not be lawful for the proprietor, editor or publisher of a newspaper or periodical to print or publish therein, or cause or procure to be printed or published therein, in relation to any domestic proceedings under the Guardianship of Infants Acts, 1886 and 1925, or the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925, any particulars other than the following, that is to say:—

  1. (a) the names, addresses and occupations of the parties and witnesses;
  2. (b) the grounds of the application, and a concise statement of the charges, defences and counter-charges, in support of which evidence has been given;
  3. (c) submissions on any point of law arising in the course of the proceedings and the decision of the court thereon;
  4. (d) the decision of the court, and any observations made by the court in giving its decision.

LORD ATKIN moved, in subsection (1), to leave out "under the Guardianship of Infants Acts, 1886 and 1925, or the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925." The noble and learned Lord said: This Amendment is one of a series of Amendments all directed to the same end—namely, to exclude bastardy proceedings from what I may call the operative parts of this Bill with the exception of the proceedings taken to enforce payment. I should tell your Lordships in advance that I am glad to say the Amendments have the approval of the Home Office. They take the form, I think, which is approved by the Home Office, and I understand that my noble friend in charge of the Bill is prepared to accept them. Therefore, it needs very little from me to commend them to your Lordships. This part of the Bill in respect of bastardy proceedings has caused some concern amongst those who are charged with the administration of the law. There is a great deal to be said undoubtedly for the Report of the Departmental Committee in respect to matters which can directly be called domestic proceedings—that is to say, guardianship of infants and matrimonial disputes between husband and wife. That these cases should be tried in a more or less domestic tribunal before a small number of justices, and with limited publicity, I think is all to the good; but it is rather difficult after all, when you come to think of it, to class bastardy proceedings as domestic proceedings.

Those of us who are acquainted with the administration of the law in this respect and the cases that arise know that there are no cases which are more strongly disputed. They give rise, as my noble friend said, to very difficult questions involving most difficult questions of fact, and when they are disputed it is inevitable that there is perjury committed on one side or the other, sometimes on both. They involve the most serious charges against persons from time to time. They involve, no doubt, sometimes charges against the character of the complainant, and also very often they involve very serious implications against the character of the defendant. Unfortunately, one knows cases in which the young woman concerned has made as defendant the person who is in her opinion the most likely to be able to pay, and very often, as we know, quite unfounded charges are made against persons in most responsible positions, often against the employer of the young woman concerned. They are cases which involve most serious questions of character. These are not cases which, with great respect, ought to have any special limitation applied to them at all. They are just the most important cases that can come before a bench of justices.

And there is this further point: that a limitation of the number of justices would, in my opinion, be most unfortunate. I have had the privilege of sitting, from time to time, with my brother magistrates, and we sometimes have the painful duty of determining these cases. A bench of magistrates are, in my opinion, far and away the best tribunal in the country for determining these matters. If you can get four, five or six magistrates from different parts of the district with different occupations, they are just the people who can act as a jury and are able to give you the most valuable points of view as to the habits and the places which are concerned, topics on which it is invaluable to have their aid. I should think that the administration of justice was very seriously impeded if in fact the court were limited, as is proposed here, to three justices.

Those are the simple grounds on which these Amendments are proposed. I am glad to say that I understand that they have also the approval of the Lord Chancellor; they are approved by the Home Office, and I understand will be accepted by the promoters. In those circumstances I do not suppose it is necessary to say very much more to your Lordships in support of them. I may say that this particular Amendment is in the nature of a drafting Amendment, on the footing that bastardy proceedings would be taken out of the Schedule. If your Lordships are good enough to assent to this Amendment, I think the rest follow as a matter of course.

Amendment moved—— Page 2, line 43, leave out from the beginning to ("any") in line 2 on page 3.—(Lord Atkin.)


I feel very diffident about representing a view in opposition to that of the noble and learned Lord who has just spoken, and still more so on a matter in which legal considerations must necessarily have such weight. I venture to think, however, that in this matter the Committee is being treated in a slightly unusual manner. It was only at the beginning of June last that this Bill received its Second Reading without a Division, and it was supported in a statement by the noble Earl, Lord Munster, whom I understood to be speaking on behalf of the Home Office, recommending the Bill to the consideration and support of your Lordships and saying that it had the full support of His Majesty's Government. Several weeks have intervened—rather an unduly protracted period—between the Second Reading stage and Committee. I think it is unquestionable that all the voluntary societies, without any exception, who have as their principal duty the consideration of the particular cases of which the noble and learned Lord spoke, are wholeheartedly in favour of the Bill as it stands.

I have no doubt that the noble and learned Lord is perfectly correct in stating to your Lordships that this Amendment, and the other Amendments consequential upon it, have the support of the noble and learned Viscount ordinarily upon the Woolsack. He would, no doubt, be able to tell your Lordships about that. But no new factors can have arisen to cause a complete change in the attitude of the Home Office, and it would be a misfortune if these Amendments were to pass through your Lordships' House without any expression of view on behalf of the voluntary societies connected with these cases. I have had the privilege of being president of one of them for a number of years, and it is incumbent upon me to say that the Amendments are viewed with great disappointment. We feel that the Bill, as it now stands before your Lordships, is very much needed. It has come to this stage with full support, and we are not in these Amendments considering merely a change of detail but something which removes a rather large and a very important portion of the Bill.

That being so, we are faced with the question of what it is wisest, in the interests of the Bill, to do. I am conscious that, in the Amendments which the noble and learned Lord has upon the Order Paper, while he takes away with one hand he is prepared to give back to some extent with the other. The bastardy cases will have a benefit, even with his Amendments, which they do not at present enjoy under the law, and I am given to understand that if these Amendments are rejected it is possible that the very real advance made by the Bill may be imperilled. In those circumstances those whom I have been consulting, who have been so much concerned with all these cases, feel, though with great regret, that it would be unwise to ask your Lordships to reject the Amendments. I do not know what action the noble Lord in charge of the Bill will take, but I hope he will recognise that, as has been said, politics is one long second-best; that we, in the position which has arisen, are unfortunately unable to get all that we had hoped, but that we do at any rate get something. I hope, therefore, that he will be able to accept the Amendments moved by the noble and learned Lord.


I have very little to add to what has been said by the noble Lord, Lord Gorell, except to say that the promoters of the Bill accept these Amendments. Your Lordships, on looking at the list of them, will observe that they are really all consequential upon the last of them—or rather, the first five of them are consequential upon the sixth. As the noble Lord has said, although bastardy proceedings are to be left out of the Schedule to the Bill altogether, they are to be included in three clauses of the Bill: 5, 6 and 7. Therefore certain advantages will be gained in matters of procedure in courts of summary jurisdiction when dealing with affiliation cases. If this Amendment is accepted—and on behalf of the promoters of the Bill I am to say that it is not resisted—then, in matters concerning the investigation of the means of defendants against whom an order has been made, this Bill will apply; and, as in Clause 6, there will also be a. change in the procedure in affiliation cases, inasmuch as assistance will be given in the matter of the examination of witnesses by the court; and also in Clause 7. I need not mention that further, because it is really a piece of machinery. I can only add that, as has been already said, there will, I recognise, be no little disappointment in many circles as the result of the acceptance of these Amendments and the consequent exclusion of affiliation proceedings from this Bill. Those who are responsible for its introduction into Parliament have, however, after mature consideration decided that it would be wise and proper to accept these Amendments, and I recommend to your Lordships that they should be duly passed.


Perhaps I might add one word before these Amendments are put to your Lordships. It will be within the recollection of the Committee that on the Second Reading of this Bill I gave it the support of His Majesty's Government. It will also, however, he remembered that at that time I refrained from mentioning any of the details connected with the Bill. On hearing the criticisms made by high legal authority, I think it advisable that these Amendments should be accepted by your Lordships.

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4 agreed to.

Clause 5:

Investigation by courts of summary jurisdiction as to means.

5.—(1) Where in any domestic proceedings in which ail order may be made for the periodical payment of money by any person, or in any proceedings for the enforcement or variation of any such order, a court of summary jurisdiction or a justice of the peace has requested a probation officer to conduct an investigation into the means of the parties to the proceedings, the court may direct the probation officer to report the result of his investigation to the court in accordance with the provisions of this section: Provided that in the case of any such domestic proceedings no direction to report to the court shall be given to a probation officer under this subsection until the court has determined all issues arising in the proceedings other than the issue as to the amount to be directed to be paid by such an order.

LORD ATKIN moved, in subsection (1), after "such order," to insert "or in any proceedings in any matter of bastardy." The noble and learned Lord said: Now that your Lordships have been good enough to accept the first Amendment, which I think we may take as agreeing to accept the principle of the Amendments, this Amendment follows almost as a matter of course. As Lord Merthyr has said, this is moved with a view of putting in bastardy proceedings (and not taking them out) for the purpose of investigation by courts of summary jurisdiction as to means. That seems to be perfectly proper and reasonable, and I beg to move.

Amendment moved—— Clause 5, page 4, line 21, after ("order") insert ("or in any proceedings in any matter of bastardy").—(Lord Atkin.)

On Question, Amendment agreed to.

LORD ATKIN moved, in the proviso in subsection (1), after "domestic proceedings," to insert "or of proceedings for an affiliation order." The noble and learned Lord said: This is the same matter.

Amendment moved— Page 4, line 29, after ("proceedings") insert ("or of proceedings for an affiliation order").—(Lord Atkin.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to. Clause 6:

Examination of witnesses where parties are not legally represented. 6. Where in any domestic proceedings, or ill any proceedings for the enforcement or variation of an order made in domestic proceedings, it appears to a court of summary jurisdiction that any party to the proceedings who is not legally represented is unable effectively to examine or cross-examine a witness, the court shall ascertain from that party what are the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, as the case may be, and shall put, or cause to be put to the witness, such questions in the interests of that party as may appear to the court to be proper.

LORD ATKIN moved, in the proviso in subsection (1), after "domestic proceedings," to insert "or in proceedings in any matter of bastardy." The noble and learned Lord said: The same question arises here; that is, a question of proceedings to enforce or vary an order made in domestic proceedings. It deals with a question of means, and it is right and proper that bastardy proceedings should be included in that respect.

Amendment moved— Clause 6, page 5, line 18, after ("proceedings") insert ("or in proceedings in any matter of bastardy").—(Lord Atkin.)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7:

Extension of duties of probation officers.

7. Acts done by a probation officer— (c) in conducting, at such a request as aforesaid, investigations as to the means of parties to domestic proceedings, or to proceedings for the enforcement or variation of orders made in domestic proceedings; shall be deemed for the purposes of Part I of the Criminal Justice Act, 1925, to be acts done by him in the performance of his duties under that Act.

LORD ATKIN moved, at the end of paragraph (c) to insert "or to proceedings in any matter of bastardy." The noble and learned Lord said: It is the same proposal in reference to inquiries which may be made by probation officers. I beg to move.

Amendment moved— Clause 7, page 5, line 41, after ("proceedings") insert ("or to proceedings in any matter of bastardy").—(Lord Atkin.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Remaining clauses agreed to.


Forward to