SUMMARY PROCEDURE (DOMESTIC PROCEEDINGS) BILL. (Hansard, 3 June 1937)

LORD MERTHYR
My Lords, I beg to move that this Bill be now read a second time. Before I pass to the provisions of the Bill I should like, if I may, to pay a tribute to other efforts which have been made, both in your Lordships' House and in another place, to bring about the reform dealt with in this measure. I hope that if your Lordships apportion any credit in this matter it will be given also to those noble Lords who have previously introduced similar measures. First of all, in the year 1930, I am informed, the noble Lord who now leads the Opposition in your Lordships' House introduced a measure in another place entitled the Courts of Domestic Relations Bill. I believe that was the result of his great experience in the United States and other countries where, I understand, he had studied similar problems. Then in May, 1934, the noble Earl, Lord Listowel, introduced a Bill in your Lordships' House called the Summary Jurisdiction (Domestic Procedure) Bill. It was that Bill which hastened, if it did not actually cause, the setting up of the Departmental Committee to which I shall have to refer in a moment. Finally, in December of the same year the noble and learned Lord, Lord Merrivale, introduced a somewhat similar Bill, which passed through your Lordships' House and was entitled the Matrimonial Causes (Amended Procedure) Bill. That Bill, in its turn, was taken into account by the Departmental Committee in the course of their deliberations.
This present Bill, which has passed through another place, is based upon and very closely follows Part I of the Report of the Departmental Committee on Social Services in Courts of Summary Jurisdiction. The members of this Committee were appointed at the end of 1934 and they reported in March, 1936. The first Part of their Report is unanimous. The Committee consisted of nine members, presided over by Mr. S. W. Harris, of the Home Office, and one of the members was the noble Earl, Lord Fever- 353 sham, who has so often addressed your Lordships on this and kindred subjects. They held forty-seven meetings and heard evidence from 126 witnesses drawn from all parts of the country and representing all shades of public opinion, witnesses professional and lay, male and female, representative and individual. So, my Lords, I can claim that this Bill is not a personal whim of some private individual but represents, on the contrary, the carefully-studied proposals of an experienced and qualified body of persons who have taken a great deal of trouble to hear opinions from persons in all parts of the country who desired to give their opinion. As I have said, this Bill follows very closely Part I of their Report.
This Bill again deals with the civil jurisdiction of courts of summary jurisdiction. It deals with the civil work, and the civil work only, which is performed inside those buildings which are somewhat unfortunately called police courts—unfortunately, I say, because the public do not realise, perhaps, the large amount of civil work which goes on inside them. This Bill deals with three groups of Acts of Parliament which are set forth in the Schedule of the Bill; and I will ask your Lordships to look at the Schedule first, because there the legislation which is affected by this Bill is explained. The Bill, of course, deals only with procedure. It deals with the Acts which relate to the guardianship of infants, to matrimonial disputes, and to affiliation orders under the Acts relating to bastardy. Those proceedings which are set forth in the Schedule to this Bill are termed "domestic proceedings." I might perhaps quote just two figures to show the extent and importance of these proceedings in the country. In the year 1933, which is the last year for which we have been able to obtain figures, the applications for maintenance orders in England and Wales numbered 13,603 and the applications for bastardy orders 6,527. Under those two heads alone over 20,000 applications were made in a year, and that figure leaves out all the proceedings under the Guardianship of Infants Acts. I think it can be said without much doubt that if the present procedure were not so antiquated and so much dreaded, the number of applications would have been substantially more than they were.
354 The main theme of this Bill is to put, in the public interest, some restriction upon the undesirable publicity which is to-day attached to the courts dealing with these matters. It may be argued with some force that full publicity is necessary in criminal cases. This Bill, however, does not deal with criminal cases at all. In cases between the King and his subjects it is no doubt most important that justice should not only be done but should also be seen to be done, as has been said with such great authority upon so many occasions. But it is submitted that the same rule does not always apply to civil matters, and particularly to civil matters of this kind, matters in which intimate family details so often have to be brought out into the full glare of publicity. There is precedent, at any rate in one case, even in criminal courts for some restriction of publicity: under the Defence of the Realm Act, and also in some cases where indecent evidence is being given. Following that principle, this Bill does not deal with applications for the enforcement of orders under these Acts. The reason is that, when application is made for the enforcement of such an order, not only is there as a rule no necessity to bring out intimate personal or indecent details, but—and this is a more important reason—there is very often some possibility that the man may lose his liberty. The hearing therefore takes on the nature of a criminal proceeding, and such applications are not brought within the ambit of this Bill. That is stated in the last sentence of the Schedule to the Bill. Incidentally, the Bill does not cover proceedings in assault cases against a husband brought by a wife, or vice versa, for the same reason—namely, that they are by their nature criminal proceedings; they are therefore purposely omitted from this Bill.
Publicity in civil cases, it is submitted, is often not only bad in itself but actually hinders justice. I hope to be able to show this afternoon, by quoting one or two cases, that this is so. In every one of these cases with which the Bill deals a woman is involved, very often a young woman, who has never been in court before, who has no legal representation, who understands nothing at all of the procedure of the court and is probably very apprehensive of it before she goes there. It seems to be perfectly clear, and indeed 355 one naturally expects, that she will be prevented from saying all that she wants to say by the present atmosphere in, and the procedure adopted by, the courts to which she is forced to go to seek her remedy. There are three principal factors which go to make up this state of affairs. They are the very large benches of magistrates which one so often finds in these courts; the fact that there is no restriction upon the number of people attending the courts; and the fact that everything said may be, and is liable to be, widely reported in the Press. Those subjects are dealt with by this Bill.
With regard to the restriction on benches, a matter which was closely considered by the Departmental Committee, it has been said that in some cases as many as thirty justices have been found sitting upon a bench, many of them, it is probably fair to say, by no means particularly qualified to hear cases of this nature, and it cannot be easy for an unpractised applicant for such an order to address a bench which is so large in numbers. I would like to read a short paragraph from the Report of the Departmental Committee, in emphasis of this statement. They say, in paragraph 30: 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. Then there is the question of the people who are allowed to attend in the court and hear these applications. It is commonly said, and I am sure it is true, that large numbers of people attend the court in these cases only because they think there may be something exciting or indecent revealed there. They come from nothing more than morbidity and curiosity, and many people go to hear these cases who are never to be found during the ordinary business of the court. Your Lordships may imagine the effect which it may have upon the parties to a dispute to have present in the court all their neighbours from the same street, to hear all the details without any restriction at all. There seems to be no question that this unlimited attendance at the courts 356 must stifle the speech of the applicants, or at any rate the frankness with which they ought to present their case if they are going to put the full story before the court, as is unhappily not always done to-day. It is widely held by witnesses who gave evidence before the Departmental Committee that this unlimited exposure not only prevents the courts from hearing the full facts but, what is more, prevents that conciliation between the parties which might otherwise have resulted. The Report goes on to say, in paragraph 36: … the public interest is not best served by the present system. That refers to the numbers of people who are allowed to attend the court.
Finally, there is the point about Press publicity. The same arguments very largely apply to this as apply to the question of the numbers of people allowed to attend. I am sorry to say that our less reputable newspapers do publish a great deal which is not only damaging to public morality but, what is more, does defeat the ends of justice. Again I might refer to the fact that in courts of law there undoubtedly and undeniably is a great deal of humour, and very often we quite innocently amuse ourselves by hearing or reading what goes on in a matrimonial dispute in a court of law. We are inclined to forget that however humorous to strangers these details may be, they are anything but humorous to the parties themselves; and therefore it is to their interest, if not in the public interest, that they should be prohibited from being published.
Publicity in the newspapers, as I have said, undoubtedly widens rather than heals the estrangement between the parties, and my attention has just been drawn to certain headlines in one of the papers published yesterday. I will not trouble your Lordships by reading the paragraph but the headlines are: "Matrimonially speaking" and "Letter from lodger made him see red." There is a great deal more. I will not read it, but that is the sort of thing appearing in newspapers which have a circulation of millions, and I suggest that it does more harm than good in this work of the courts. In this matter the Report, in paragraph 40, states: We are satisfied that the indiscriminate reporting of details of these cases is contrary to the public interest … 357 This Bill endeavours to make it compulsory that the ordinary newspapers should, in future, publish only what it is suggested a good newspaper would now publish—just those details which should be made known to the world, and nothing further. It might be mentioned that there is now published a good deal which is not evidence at all, although for various reasons it has been stated.
I turn now to the clauses of the Bill. Clause 1 seeks to change the law in the matter of the hearing of any domestic proceedings, and I would ask your Lordships to note that this clause—I say it because there is a difference in some of the other clauses—applies to all three sets of Acts mentioned in the Schedule of the Bill. It does not apply to London, because there is a special provision for London in Clause 9. Nor does it apply to courts presided over by stipendiary magistrates. Also, it does not, following the precedent of the Children and Young Persons Act of 1933, provide for the setting up of a panel of justices. The Departmental Committee gave a good deal of thought to the matter, and decided, I think rightly, that it was undesirable to have a specially constituted panel owing to a difficulty very often experienced, which I know from personal knowledge. I do know that in rural districts, where everybody has to travel a long way to the court, it is sometimes inconvenient to have a panel, although it may be convenient in large cities. It is left to local arrangements, and presumably to the bench or the chairman himself, to decide which magistrates should be asked to sit in these civil proceedings.
It is laid down that the court shall consist of not more than three justices, and include a man and a woman. It does not quite follow the Children and Young Persons Act, because that Act says the court shall consist of a man and, where practicable, a woman, and some criticism has been levelled against this apparent discrimination between the sexes. There is no such defect in this Bill, and we say the court shall "include, so far as practicable, both a man and a woman." Those words, which some might not wish to see in the Bill, are, however, quite necessary, because in many rural districts there are not enough women magistrates at present appointed to render this Bill workable without those 358 words. Your Lordships will, I am sure, all agree that in cases of this kind the present situation, in which they may be heard by a bench consisting of a large number of men and no women, is not what we should like to see in the future and your Lordships would like to make it compulsory, so far as is practicable, that at least one woman should sit on a bench at the hearing of cases of this kind.
Clause 2 makes it compulsory by subsection (1) for domestic proceedings to be separated from other proceedings in the court. Here I might point out that it does not provide for the setting up of special courts, and the reason, there again, is that in small rural petty sessional divisions it really may not be practicable to have a special court sitting on a special day. The clause, however, does provide for the separation of these cases from other cases, "so far as is consistent with the due dispatch of business." What I consider a wise and sensible discretion is left to the court in order to get over local difficulties. Subsection (2), which is one of considerable importance, states who may be present in the court during the hearing of the proceedings. Your Lordships will note, and I think agree, that in no sense are these proceedings to be private. The subsection goes further than the Children and Young Persons Act and allows to be present a wider circle of people than is allowed in that Act. I think I can claim also that it allows to be present everybody who ought to be present in the public interest, and excludes only those who have no reason whatever to be in the court. And it also does something which I think is new: it states definitely that anybody whom the parties themselves wish to be present can be there That is in paragraph (b) of subsection (2)—"and other persons whom either party desires to be present." And I would draw attention to paragraph (e), where it is stated that there may be present "any other person whom the court may permit." Therefore I claim that that subsection is sufficiently wide to cover all the criticisms which ought to be levelled at it, save only the possible criticism that there ought to be no restriction at all.
Subsection (3) deals with the situation which arises when evidence of an indecent character is being given in the 359 court. That subsection goes further than the preceding one, and the word "may" is used and not "shall" or "must." That is to say, if the court so desire, it excludes persons who are there for other cases. It also excludes the Press, but I would mention that I do not think that that is any hardship upon the Press because, even if the reporters stayed, they would not I think be permitted to report what was said during the time when indecent evidence was being given. Subsection (4) is a piece of necessary machinery which removes any possible doubt which might arise when proceedings are being heard on two different subjects together, concerning the same parties. For instance, it may happen that an application for variation of an order may be heard at the same time as an application for an order. Then all doubt is removed by this subsection, where it says that unless the court otherwise determines, the whole of the proceedings that are then being heard shall be treated as domestic proceedings and shall therefore come under the provisions of this Bill. I do not think that subsections (5) and (6) will be in any way controversial. They merely remove doubts, and say that nothing in this clause affects the powers which the bench have under any other Act of Parliament to hear evidence in camera, and also to exclude witnesses before they have given their evidence.
Clause 3 applies to Press reports. I would ask your Lordships to notice particularly that the clause applies only to matrimonial disputes and to proceedings under the Guardianship of Infants Acts, and that it does not apply to bastardy proceedings. There are reasons why there should be no restriction on the reporting of proceedings under the Bastardy Acts, and therefore that branch of these proceedings is specifically omitted. The clause says in subsection (1) what the Press may report, and, as I have said before, I suggest that what it may report is what a good journal would now report, and nothing else. The next two subsections provide a penalty and a safeguard, the safeguard being that it is necessary for the consent of the Attorney-General to be obtained before a prosecution is instituted. The last subsection provides that there should be no restriction upon reporting in purely technical newspapers. I should just like to note 360 that there is a precedent for the restriction in this Bill in the Judicial Proceedings (Regulation of Reports) Act, 1926. That Act applied, I believe, only to the Divorce Court. It has been in force for over ten years, and I believe has worked well and caused little or no opposition.
In Clause 4 we go to another subject. This deals with the conciliation which has been attempted very often in the past by courts of summary jurisdiction, and which it is very much desired to encourage in the future. Of course this clause applies only to matrimonial disputes. It applies only where conciliation has been attempted and has failed, and it imposes no obligation on the court to try conciliation. There may be cases where it is hopeless from the start, and it does not mean that the court has to go through any machinery in order to put it into effect. Further, there is no obligation on the court to use the probation officer for the purpose of trying this conciliation. Therefore your Lordships will see that a very wide discretion is still left to the court in this matter, as was strongly recommended by the Departmental Committee. It introduces what I think appears in our legislation for the first time—the phrase "statements of allegations." These statements are really in the nature of pleadings, the sort of pleadings which in other civil cases and in higher courts would be drawn by counsel, but here they are drawn up, not by counsel but by the probation officers themselves and of course at no expense to the parties to the proceedings.
It is hoped that there will be rules made by the Lord Chancellor to show the form in which these statements of allegations should be prepared. Subsection (1) says what these statements should contain, and subsection (3) makes it clear that the court may use them for questioning the parties to the dispute, but that they shall not be legal evidence in the case. This clause is designed to make it easier for the court to get at the true facts from the parties, which it is by no means always enabled to do at the present time, especially when the parties, as they often are, particularly in matrimonial cases, are unrepresented by counsel or solicitor. It is designed really to make legal what has been carried on in the past, perhaps rather irregularly, by courts of summary jurisdiction, who have quite frankly somewhat relaxed the rules of evidence in order to try to do their 361 work better. This clause seeks to regularise that procedure and make it legal.
Clause 5 deals with the investigation as to the means of a man against whom an order has been made, either under the Matrimonial Acts or under the Bastardy Acts. Here again there are some very useful provisions. Very often now the court finds a real difficulty in discovering the exact means of a man and how much he ought to pay under the order—an order which may be in force for very many years and which, if not carried out, may mean that the man has to go to prison for failure to do so. It is therefore of the utmost importance that the fullest information should be available to the court, and under present procedure that is very often difficult, if not impossible. This clause does not commence to operate until the court has decided to make the order. It provides for a statement in writing to be read aloud or made orally by the probation officer. If there are any objections to the statement by either side, then he has to go into the box and give evidence on oath with regard to the matters contained in the statement. This statement—and this is perhaps a new departure but one which, I hope, will not be objected to—is to be regarded as evidence. It may perhaps sound rather strange that statements, which admittedly may be almost wholly hearsay, should be regarded as legal evidence in a court of law, but there: are reasons why in this case it should be so. There is also at least one precedent for it, for now in a criminal case, after a man has been convicted, a police officer goes into the box and more often than not gives evidence of facts which he has obtained entirely by hearsay. It is now allowed, no doubt, because it is given only after conviction; and following upon that, under this Bill that sort of evidence can only be given if an order has been made against a man. Therefore there is, I think, really no harm in it.
Clause 6 enables the court to examine witnesses where the parties are not represented by counsel or solicitor. It really amounts to this, that it is going to make compulsory in the courts of the land the practice that is now being adopted by the best of these courts, where magistrates take it upon themselves to ask questions of the witnesses if the parties to the case are not represented, at the risk of being 362 accused of taking sides. They often do it, and I think it is a very good practice if it is done wisely and judiciously. This clause will make this practice perfectly legal, and it will prevent what so often happens in courts where parties to a case, when asked if they have any questions to ask, proceed to make long rambling statements. In the less up-to-date courts they are very often summarily checked when they try to do that, and told they must either ask questions or wait till later on; but the practice has grown up in the better courts of allowing parties to make their statements and for the court to take up these statements and put the proper questions to the witnesses in the way in which it would have been done by counsel or solicitors had they been present.
Clause 7 is a piece of machinery which is necessary in order to make it clear that the duties which this Bill imposes upon the probation officers shall be deemed to be acts done in performance of their duties under the Criminal Justice Act, 1925, which regulates their appointment and remuneration. This is necessary because the salaries paid to probation officers qualify for grants from the Home Office, and it is desirable that there should be no doubt whatever that the additional duties imposed by this Bill, with consequently possible increases in salary, shall be eligible for the Home Office grant.
Clause 8 is the only clause in the Bill which does not result from the Report of the Departmental Committee. This clause was inserted in Committee in another place, and I think your Lordships will consider it is a good clause, although its use may perhaps be somewhat restricted in the rural areas. It simply says that where the two parties to a dispute are of the same religious persuasion, then, if possible and practicable, a probation officer of the same religious persuasion shall be instructed to try and effect conciliation between them and not, if it can be avoided, a probation officer of some other religious persuasion. Clause 9, as I have mentioned already, makes it clear that the first clause in the Bill does not apply to London. Subsection (2) makes the customary arrangement for the City of London, and subsection (3) for the remainder of the Metropolis. This has been left deliberately a little flexible because I understand there is another Departmental Committee now sitting which will in due course make arrange- 363 ments for this procedure in the County of London. Under subsection (6) it is made clear that a stipendiary is not necessarily affected by the Bill and that he can, if he elects to do so, still sit alone, though he may, as he often does now, choose to have one or two men or women to sit with him in his court.
I present this Bill to your Lordships' House as one which I hope will be considered a useful and workable measure, constituting, if it is passed into law, a long desired reform. It is one with which, as I have already explained, a great deal of trouble has been taken and it is sufficiently elastic to be worked in all parts of the country, without falling into the fault of one or two other Acts of the same kind designed for large cities but which nevertheless have to be worked in small rural areas. I beg to move that the Bill be now read a second time.

§ LORD SNELL
My Lords, the noble Lord has explained the provisions of this Bill so comprehensively that we need not comment upon the details of it or the practical proposals that are made; but I should like to commend it to your Lordships in one or two general words. I have some connection with this subject in that for some years I introduced Bills into another place which were frankly of the pioneering nature, and the noble Lord will forgive me if my pride in parentage leads me to say that I prefer the Bills I introduced to the Bill he has presented to your Lordships' House. But in this country we govern democratically, and we take what we can, what we desire, piecemeal, and therefore so far as this Bill goes I commend it very sincerely to your Lordships' attention.
The general point seems to me to be that we ought to aim at taking every possible step we can to preserve the institution of the British family. That is the unit of our civilisation, and under present conditions the strain upon family life is sometimes very severe indeed. The problem of distance comes in. If we are irritable, or nervy perhaps, we can retire to some quiet place until the process of healing takes place, but when a family has to live in crowded circumstances in one or two rooms night and 364 day, year after year, that is not possible, and a spirit of irritation grows up which leads, more than people generally believe, to the break-up of family life. At that point this Bill comes into operation. A young person whose ideals of family life have suddenly smashed has the alternative of bearing the trouble without help. He or she may not be a member of any Church, or have any person from whom to ask counsel, and the only alternative is the police court. The police court as ordinarily conducted is the last place to which cases of that kind should be driven. To send a sensitive young person with that trouble to court, there to reveal all his or her sacred, intimate private feelings and troubles, is almost as bad as asking a person of that kind to strip naked in the court. This Bill, in a way which does not seem to me to be entirely satisfactory in its range, does attempt to some small extent to meet that problem, and because of that I commend it to your Lordships.
I have the belief that if it is passed and worked sincerely we shall have experience which will very quickly lead to its expansion in many directions. But that is for later comment. I would only now add that I watched courts of a different character but dealing with the same problem very closely in a good many American cities, and I was convinced absolutely of their social value. Although we are not asked to imitate what takes place in the United States of America and in Canada and elsewhere, the principle upon which those courts are based is embodied in some degree in the Bill before your Lordships, and I venture to commend it to you for a Second Reading.

§ THE EARL OF LISTOWEL
My Lords, after the extraordinarily clear and detailed account of the contents of this Bill which we have heard from the noble Lord opposite, I think it is unnecessary for any other member of your Lordships' House to follow him in the task of expanding or recommending the actual propositions that it contains. I had as my main pretext for saying a few words this afternoon the consideration that there might be arguments used by members of your Lordships' House against one or other of the clauses of this Bill. No opposition has arisen during the course of this debate; no criticism of any of those fundamental propositions that must 365 be accepted if a Second Reading is accorded to a Bill has been forthcoming; and, therefore, the raison d'etre of any remarks I had intended to make has been taken away from me.
All I should like to do in the circumstances is to remind your Lordships in a very few words of the attitude expressed during proceedings on previous occasions in your Lordships' House when matters similar if not identical to this have been considered. The noble Lord opposite mentioned two Bills which contained proposals very similar to these. One was introduced in 1934 by myself, and the second was introduced about a year later by the noble and learned Lord, Lord Merrivale. On both those occasions your Lordships expressed your approval of proposals very similar to those which have been recommended this afternoon. It is exceedingly seldom that your Lordships alter an opinion once it has been given and once all the facts of a case have been thoroughly considered, and in asking your Lordships to give this Bill the welcome and approval which all absence of opposition seems to indicate, I would like simply to remind your Lordships that you are merely carrying out the decisions that have been taken on previous occasions between 1934 and the present date.

§ THE EARL OF MUNSTER
My Lords, I should like to associate myself with the congratulations offered to the noble Lord who moved the Second Reading of this measure on the clear and concise way in which he explained the details connected with it. The proposals are moderate, are 366 based on the practical experience of many courts in different parts of the country, and, I understand, received the support of a large number of magistrates who have to deal with this class of business. Although the Bill is a Private Member's Bill, the Government are in close sympathy with its details, and they hope that your Lordships will see your way to approve of the Second Reading to-day. Perhaps I might add one word on the Report of the Committee which was set up in 1934, and that is to say how indebted the Government are to the Chairman and other members of that Committee for the interesting and valuable document which they have produced as the result of their prolonged inquiries. I do not think there is any necessity for me to say anything further on the Bill than to commend it to your Lordships and to inform the House that it has the strongest support from His Majesty's Government.