§ 5.9 p.m.
§ Order of the Day for the Second Reading read.
§ LORD CROOK
My Lords, it is a great privilege to move the Second Reading of the first Private Member's Bill which has been before your Lordships' House since the war. The subject, I am afraid, is not a happy one; the subject of wrecked marriages and of allowances for women who have suffered from wrecked marriages can never be very happy. It is the kind of Bill which I feel sure will have the sympathy of this House and will have an easy passage. It has the claim upon your Lordships that it is, I think, completely non-political. It is true that in another place it was moved by a member of the Party of which I am a member, but that was due entirely to the luck of the ballot. It would have been moved by a Member of the Opposition, Mr. Bromley Davenport, had he been successful in the ballot. The Bill deals with a problem both of the courts of summary jurisdiction and of the higher courts, in which many of your Lordships are active. Indeed, in the presentation of this Bill and in its passage through this and its remaining stages, I rely upon the benefit of the experience of those of your Lordships who sit in those various courts. Had I not known that I could rely upon those good offices I should not have ventured to bring the Bill here, for what was a small measure of some two clauses when introduced in the other place has now become a measure of eight clauses, a number of which were added on Report—and added only live minutes before the Third Reading of the Bill. I start, therefore, by saying to your Lordships that I appreciate that in the course of the Committee stage it may well be that there will be some slight "polishing" to be 1019 done. However, I know no better place to which to come for the adequate polishing of a Bill than to your Lordships' House, particularly when the Bill deals with procedure in courts.
The main purpose of the Bill is to amend the Summary Jurisdiction (Married Women) Act, 1895, in Sections 5 and 7, and the Married Women (Maintenance) Act, 1920, which itself amended Section 4 of the original Act. Briefly, the 1895 Act provided that married women might apply to magistrates on various grounds—which I will not enumerate to your Lordships, because you will be familiar with them—for allowances which could be granted to them up to a limit of £2 a week. Under the 1920 amending Act it was provided that the order could also cause payments to be made either to the applicant or to an officer of the court for weekly amounts up to 10s. for the maintenance of any child under sixteen years of age. The amending Act of 1920 followed a good deal of agitation for the increase in general of the amounts which the courts could award. Indeed, in October, 1920, as a result of that agitation, the then Home Secretary, in reply to a Question in the other place, made it clear that the Government of the day had an amending Bill ready for presentation. But, unfortunately, from that day to this the Bill has never been brought before the House. This is the first opportunity that Parliament has had of righting what many of us regard as an outstanding wrong. I believe the Bill has not only the blessing of all Parties, but also the blessing, in principle, of the Home Office.
The main provision for the increasing of the £2 to an amount of £5 will be found in Clause 1 of the Bill, which also provides for the increase of the child's allowance from 10s. to 30s. I do not think it needs any persuasion from me to convince your Lordships that while £2 was an adequate amount in 1895, it is not adequate to-day. I think one could say that in 1895 a woman granted £2 a week by a court was guaranteed freedom from want; but I do not think one could say anything like that to-day. In those days husbands in many cases in the ordinary workaday world were able to earn only 18s. a week, and your Lordships will not need me to remind you of 1020 something with which you are only too familiar—namely, the general trend of wages to-day. I think it is true to say that the £2 really represented the dividing line between the responsibility of the courts of summary jurisdiction and the High Court. I would remind your Lordships that a case cannot be taken to the High Court merely on the basis of an order for maintenance. To go to the High Court it is, in fact, necessary for an application to be made for judicial separation, divorce or a decree of nullity, placing on the wife the added expense of petitioning, which many of us feel is an unnecessary burden.
I do not think that the sum of £5 has any sacred sanction, or that there is any particular logic in it. In the other place there was a good deal of discussion on this matter; some members wanted £10, but finally £5 was put into the Bill. I am bound to say that it seems to represent something like a reasonable amount. It is two-and-a-half times the amount given by the 1895 Act, and one can say that the cost of living has risen approximately two-and-a-quarter to two-and-a-half times since then, while wage standards have certainly risen by at least two-and-a-half times. So the £5 really represents the new guide of the division of responsibility of the court of summary jurisdiction and the High Court, just as limits are otherwise imposed on the magistrates' courts in respect of the six months' imprisonment rule and various other penalties about which many of your Lordships know much better than I do.
Some of your Lordships will have had great experience of the difficulties of the applications made by women whose husbands are earning considerably greater sums of money than the £5 or £6 a week which was originally regarded as about the maximum remuneration of the husbands of those applying. Magistrates have found, in respect of applications from the wives of men earning up to £1,000 a year, that they have been completely hamstrung in any opportunity of making a change and giving an amount that was justifiable. I find in practice that the courts are paying regard to the joint amounts received by the husband and wife and, by and large, in the majority of well-run courts they are making awards approximating to one-third of the remuneration of the two together. In the case, therefore, where 1021 only the man is earning it means that what we propose by this increase is, broadly, to increase what is taken as the maximum standard of remuneration of the people coming before the courts of summary jurisdiction from £6 to £15 a week.
Turning to the amount proposed for children's maintenance, I am bound to say that the 30s. a week mentioned in the Bill has no logical basis. I know full well from my experience in your Lordships' House that it would be absurd my trying to bring a case of 30s. a week which had no logical background; and my experience as a trade union official similarly teaches me not to try to make a case when its feet are not firmly and squarely placed on the ground. I am bound to say that when I looked at all the documents a week ago I could see the logic of this being made 20s., rather than 30s., a week. Had I been drafting the Bill, I am sure that is the amount I should have inserted. That would bring the amount into line with the Guardianship of Infants Act, 1925, which in Section 7 (c) provides for 20s. a week. I reach that conclusion largely because I agree that there is a fine dividing line between the women who are successful in obtaining an order on the grounds of desertion or cruelty under the 1895 Act—which it is now suggested to your Lordships should be amended—and those who cannot take proceedings under that Act, but find themselves unable to live with their husbands, who seek a settlement under the Guardianship of Infants Act, and thereby are entitled to claim only 20s. a week.
§ VISCOUNT SIMON
Is this a sum for each child?
§ LORD CROOK
§ VISCOUNT SIMON
So that, where there are a number of children, you multiply as a maximum the 30s. by the number of children.
§ LORD CROOK
Yes. On the main basis of the Royal Commission on Population figures, of approximately two children per family, you would in the ordinary course under this clause be fixing a limitation of £3 more than the £5—a total of £8 in the average case. I imagine—in fact, I feel sure—that the basis for the 30s. figure in the other place was the desire to see that the 20s. amount laid 1022 down in the Guardianship of Infants Act was also raised. I deduced that by seeing that the Speaker ruled out of Order some Amendments which clearly aimed at amending that Act. It does seem logical that the amount under this Bill ought to be 20s., in order to bring it into line with the Guardianship of Infants Act. I think the whole of the enactments ought to be looked at, and, it may be that those of your Lordships who are more skilled in these matters of consolidation may feel that the Acts dealing with women and children are crying out aloud for attention—especially in view of the consolidation arrangements which recently had the approval of your Lordships. Certainly when I looked into them for the first time this last week, they appeared to me fairly chaotic and contradictory in various places. I leave Clause 1, knowing as I did before I commenced to address your Lordships, that on the Committee stage some query about that 30s. figure was bound to arise.
Clause 2 has been put into the Bill on the drafting of the Treasury to make the necessary provision for the amendment of the Finance Act, 1944. That Act provided that small maintenance payments could be made without deduction of tax, being taken out of the normal rules for the deduction of tax at source. That was clone by the Government of the day at the request of the Magistrates' Association, for reasons with which I need not detain your Lordships at the moment. This is merely the correction of the 1944 Act to bring it into line with Clause 1 of the present Bill.
Clause 3 is a new proposition. It is in line with the new trends of education in this country. At the moment, under the 1920 Act, allowances can be made in respect of children only up to the age of sixteen years. Those who sponsored this Bill felt it unfair that, fathers should escape the responsibility of contributing towards the further education of those children who are capable of going on to higher things. Accordingly the clause provides that application can be made to the court for an order for payment after sixteen years of age; the court not to be permitted to give an order for a longer period than two years. If at the end of two years it is still desired to continue an allowance for educational purposes, the clause provides that further application may be made. Again, your 1023 Lordships may ask me to justify the age of twenty-one and ask what logic there may be in it. I am bound to admit that there is no logic in it other than that there must be some age; and twenty-one is not only the ordinary coming-of-age figure but by and large it represents, except for those who are going on for express university careers or medical training, the end to the normal run of education.
I would like to bring to your Lordships' attention—hoping, particularly to receive the advice of noble Lords more learned in the law—a small point which I happened upon in reading through the Finance Act, 1944, last night. I think it merits attention, although I hesitate to challenge or criticise the draftsmanship of His Majesty's Treasury in this regard. The Clause 2 provision drafted by the Treasury is supposed to have cleared the income tax position, but in Section 25 (1) (b) of the Finance Act, 1944, I observed that the definition of "small maintenance payments" includes the words,… for the benefit of, or for the maintenance or education of, a person under sixteen years of Age.I am a little apprehensive that the limit of sixteen years of age in that small subsection may have escaped attention, and the good intentions of the drafting of Clause 2 might be undone in this regard. I should be very grateful if noble and learned Lords would have a look at that point before we reach the Committee stage, so as to be able to give me some help on the matter.
Clause 4 deals with the obvious point that it is useless enlarging the powers of a court to make orders unless there is adequate provision for enforcement. I referred earlier to the fact that the court had the power to make orders for payment to be paid, not to the woman herself but to an officer of the court. It lies within the discretion of the court to make an order of that kind, and it is generally agreed that there are many advantages in doing so. It helps a women with no knowledge of the law, and in general it eases the practice of the court. Indeed, a Departmental Committee, appointed by Sir John Gilmour when he was Home Secretary, recommended the expansion and use of this idea in 1024 general, and I know that it is a practice in many courts to use the procedure that the collecting officer takes action. During the progress of this Bill through another place, attention was directed to the fact that there is some doubt about the legality of the practice, although it is very general in the courts. This clause, therefore, covers that technical point, and provides for the use of this machinery in all possible circumstances. The effect of the clause is that if the court decides that payment shall be made to the officer, he will have a statutory duty, after four weeks of arrears, to inform the woman. He is left with the discretion that where, for instance, he knows that a man is unemployed or away from work through sickness he need take no steps. When he does take steps, the woman will have the right to ask him to take proceedings in her name on her behalf. He proceeds to take action, the woman running all the risks of costs which might be involved. The main benefit to her, of course, is that she is probably saved two or three abortive journeys to court.
In Clause 5, provision is made for access to the children by the husband. It is the normal practice in most courts, as your Lordships are well aware, for a clause to be put in the order providing for this access, but at present no Statute makes express provision in this regard. The opportunity has been taken, in presenting this Bill to your Lordships, to put in this extra clause to regularise the position. Clause 6 is somewhat fresh in its nature. At the moment, inconvenience and hardship is caused to women by the fact that the only court able to deal with her claims is the one in the area in which the cause of complaint arises. An example of the hardship is, of course, where the matrimonial offence occurs in the north of England. As a result of the matrimonial offence, the wife leaves with her children to rejoin her parents in the south of England. To make the application she would have to go north. It is perfectly true that, as a result of the change proposed, it may be that the man would have to come south. It is a question of balancing the hardship. Which is the greater hardship—to make a woman with the responsibility of children travel, or to make the man, who is to answer, travel down to where she has gone? In addition to that, it transpired in the course of the 1025 Committee stage in another place that the provision proposed in this clause ties up closely with the provision under the Bastardy Acts, and also with Scottish Court procedure. In view of the attempts at present being made to secure mutual enforceability in England and Scotland, I understand that the Home Secretary regards this particular clause as valuable.
I now come to Clause 7, the clause upon which I anticipate criticism, and upon which doubtless there will be some debate on the Committee stage. This clause was one of those added at a late stage, not after quick consideration but after a good deal of consideration by certain of the honourable gentlemen learned in the law who were advising those sponsoring the Bill. At the moment a large number of men labour under a strong sense of grievance that they have only one form of appeal—the appeal to the High Court. To those not living in London the High Court is a long way away; and to all, whether living in London or not, it is very expensive. Even the Legal Aid and Advice Bill will not obviate the fact that there will be expense involved in this connection.
What this clause does is to bring the appeals procedure broadly into line with that in criminal cases; that is to say, there should he an appeal on a mixture of fact and law or on law only—not, as at the moment, an appeal to the High Court on a point of law only (which, as I understand it, rarely, if ever, receives a very pleasurable reception from the High Court, who are obviously loath to intervene). The noble and learned Lord, Lord Merriman, who is to follow me, is skilled in these matters; I myself claim no legal knowledge and no ability to debate the particular nature of this clause. I know, too, that the noble and learned Viscount the Lord Chancellor has some doubts on this matter, and I also know from private conversations with some of your Lordships that you share those doubts. The Lord Chancellor told me that but for other engagements he would have been present at this debate to express his Own point of view on this and other matters, and he asked me if I would say to your Lordships how sorry he is that he is not able to be here in time.
1026 Well, my Lords, there is the Bill. I am sorry I have had to take up so much of your time. I hope I have not taken too long. What I have tried to do is to paint a sufficient picture to justify your going ahead with this Bill and, as I hope, not only taking it through the Committee stage at an early date but placing it on the Statute Book before we rise for the Summer Recess. I believe in the Bill. It may be that your Lordships will desire to give it a little polish before it goes any further. I commend it 10 your Lordships' House, and beg to move that the Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Crook)
§ 5.32 p.m.
§ LORD MERRIMAN
My Lords, I have no intention of opposing the Second Reading of this Bill, but in. Clause 7 of the Bill there is one big question of principle, to which the noble Lord, Lord Crook has just alluded. That clause makes a radical change in the method of appeals from these matrimonial cases before the magistrate—and, in my opinion, it is a change which is very much for the worse. The noble and learned Viscount the Lord Chancellor has asked me to say how sorry he is not to be present at this debate, and he has permitted me to say that he urged me to state fully what I thought were the objections to this change, so that it might be considered, as it has not been fully considered anywhere, when the Committee stage is reached.
The noble Lord, Lord Crook, was perfectly correct in saying that there had been some discussion on a slightly different clause at an earlier stage in another place, but that owing to circumstances into which it is not necessary to go it was introduced on Report and passed on Third Reading with exactly half a column of discussion—one speech. Now I must admit that I suffer under a certain feeling of personal embarrassment in this matter, because I preside over the Court whose activities are to he drastically curtailed. But that very fact enables me to say something which may be of assistance. It is not really sound, in nay opinion, to talk in this connection of linking this system of appeal with the general system of appeal from magistrates' courts in criminal cases. I say that for this reason. When in 1895 1027 this matrimonial jurisdiction was introduced, it was natural that as a matter of procedure—and it was expressed to be simply a matter of procedure—it should be linked with the machinery of the Summary Jurisdiction Acts which, in the main, as your Lordships know, deal with small offences, though also with orders for the payment of money.
Similarly, with our passion for legislation by reference, as bastardy proceedings had already been included in the same procedure it was natural enough that it should be provided that, for the purposes of enforcement, these orders should be enforced as bastardy orders. But in fact this is neither criminal procedure, nor anything to do with bastardy; and, oddly enough, although the Acts which govern this code are headed "Summary Jurisdiction Acts" it has been held that they are not part of the Summary Jurisdiction Acts at all. The whole series of Acts—and this is a point of supreme importance—constitutes a code of purely civil character, a matrimonial code as between husband and wife which, in the main, is absolutely identical with the divorce law as administered in the Division over which I preside—the only difference, of course, being that the magistrates' courts have power to make an order only for judicial separation, whereas we have the additional power to dissolve a marriage. It was therefore almost inevitable, when this first Act was passed in 1895, that the appeal in these matters should be given to a Divisional Court of the Probate, Divorce, and Admiralty Division.
After all, the issues are absolutely the same. When you have to discuss the question of adultery, whether it is from the point of view of obtaining a separation order—for either party can now get a separation order on the ground of adultery—or whether it is by way of bar to a married woman getting an order against the husband, the issue is the same, and the standard of proof required is the same, as in the High Court. The same thing applies to a charge of desertion, whether it is because the man has left the woman or has behaved so outrageously as to drive her away. Similarly, with regard to cruelty and even with regard to a summons for wilful neglect to maintain (a remedy that is at present con- 1028 fined to the magistrates' court, though, as your Lordships know, there is a private Bill which will probably be coming up shortly to your Lordships' House, giving the High Court also power to deal with this matter without the necessity for a petition for judicial separation or divorce) the issues are still the same. A married woman is not entitled to an order if she is living apart from the husband unless she can prove that he has deserted her by driving her away, or has treated her with cruelty, or the like. Therefore, the standard of proof in these cases is exactly the same throughout on all the major issues. Moreover, the order made by magistrates in these cases forms the basis of a divorce case. It is expressly provided in the latest Act, the Herbert Act, that the obtaining of an order on any of these grounds may be accepted by the High Court as proof of the offence charged, provided only that the petitioner himself or herself gives evidence.
There is another point. Lord Crook, if he will allow me to correct him, made a mistake when he said that we deal with these matters in the Court of Appeal only on questions of law. We have exactly the same written rules, and we are guided by exactly the same principles in practice, as the Court of Appeal is bound and guided by when sitting in appeal from one of us in a divorce case. We are not limited solely to questions of law. We examine the whole evidence. The matter is a rehearing. It is true that it is a re-hearing without witnesses, and I will return to that presently. We are expressly empowered to draw any inference of fact which the court below could have drawn, exactly as the Court of Appeal is entitled to do when sitting on appeal from us. We are not to upset a case simply because there has been a misdirection, unless we are satisfied that that misdirection has caused a substantial miscarriage of justice.
May I, in passing, say this? I have had sixteen years' experience in this business now, and when I first came to my present position it was the exception and not the rule to receive an intelligible note of the evidence and an intelligible statement of the magistrates' reasons. For one reason or another—it is not for me to say what reason—the situation has completely changed, and it is now the exception rather than the rule to have a bad note and an inadequate statement of the 1029 magistrates' reasons; so that we are really well equipped. We do not get a shorthand note in most cases. Sometimes they provide us with a shorthand note, but we get what I think is much better than a shorthand note—a really good longhand note, and a statement of what is in effect the judgment, which is exactly what the Court of Appeal—at any rate when I was a young man—used to count on getting front the judge's note and the transcript of the judgment. In other words—and this I regard as a cardinal point in this discussion—our Divisional Court and the justices are in precisely the same relationship to each other as the Court of Appeal are to the judges of the Divorce Division. The result is that over the whole code governing these matrimonial offences—and the rights of married women against their husbands and, indeed, the rights of husbands against their wives—the appellate control is vested either in the Court of Appeal or in two judges of the Divorce Division whose particular business it is to be versed in these matters.
I happen to know that our decisions are widely reported, and I believe that they are widely read. It is certainly not for me to say whether they are helpful, but I hope they are. One would have thought, therefore, that when you get, as is proposed in this Bill—I am not going to discuss the question of amount—this jurisdiction raised in amount by 150 per cent., the appellate control to which I have referred would be rather more than less necessary. I have nothing whatever to say against Quarter Sessions. I myself happen to be a Chairman of Quarter Sessions, but this at least it is fair to say: I doubt very much whether clerks of the peace of the counties have had any experience whatever in this jurisdiction. They are most unlikely ever to have been clerks to justices and to have had to deal with this class of case. Quarter Sessions do not sit, even if there is a legal Chairman, in very learned circles; as a rule, there is no access to books at Quarter Sessions, except in some of the bigger cities. What is more—and this is not the least important—there is no method of co-ordinating the decisions of one court of Quarter Sessions with those of another. That, at any rate, I claim the Divisional Court of our Division does.
There is one other very serious matter. We do not know, of course, exactly how 1030 the Rushcliffe Bill is going to be applied to Quarter Sessions but, if a wife has obtained an order before a magistrate, or if she is charged with adultery or anything like that, we have power to order that she shall have security for costs to defend herself against the charge of adultery, or to maintain her order. So far as I know, Quarter Sessions have no power to order any security for a wife's costs. It horrifies me, when there is this talk of men being disgruntled with decisions of magistrates, that a woman's reputation should be at the mercy of an appeal by her husband to Quarter Sessions when there is no way of providing her with the means of defending herself. I do not want to labour this matter too much, but I have seen something about the lack of consideration in another place. So far as I know, this point has never been considered by any of the Departmental Committees that have been appointed. There has never been any recommendation of this sort. I know that the General Council of the Bar first heard of it two days before Report. I do not know that the Law Society or the Association of Recorders and Chairmen of Quarter Sessions have heard of it at all. But I do not want to labour that point.
Now let me come to the reasons which have been given. It is said—and the noble Lord, Lord Crook, repeated almost verbatim what was said in another place—that these appeals were expensive. With the greatest possible respect, that is not true. I have taken out the figures for this. The cost of an appeal to the Divisional Court averages about £30. I have made inquiry from my own Quarter Sessions, and the average cost of an appeal to Quarter Sessions is about £35. In this class of case, which often requires a certain number of witnesses—and obviously, the more witnesses you have to transport to Quarter Sessions, the greater is the expense—there is nothing in this question of expense. Then it is said: "Put the thing in line with the rest of the criminal law." I have already tried to explain that this is not the criminal law at all, but that does impel me to say something about the alternative which is provided.
These appeals—as we know, they are appeals by way of re-hearing, on the same principle as the Court of Appeal 1031 re-hears from us—are to be replaced by what is called a "case stated." A case stated by justices is an admirable weapon for ascertaining the law with regard to some offence on facts which are either admitted or indisputable. The sort of thing I am thinking of—and they are the daily routine of cases stated—are offences under one of the thousand-and-one regulations and orders by which our lives are governed nowadays. I have looked through some of the latest King's Bench Reports, and that is the sort of thing. I need not elaborate the point, but there is no analogy whatever between that sort of thing and a re-hearing on points of fact, or on a mixed question of law and fact, which is what the noble Lord, Lord Crook, quite rightly described these appeals as being. You must obtain a correct appreciation of the facts and then apply the law to those facts. It is quite impossible to talk about a case stated in connection with the sort of question which arises as to a course of conduct extending, maybe, over a series of years, when a woman has been subjected to this, that or the other ill-treatment, and when the question is whether that amounts to cruelty or has or has not justified her in leaving her husband. You cannot alter the facts which are stated in a case; the Court is bound absolutely by the statement of the facts. I submit that a much better way of dealing with the matter is to do as we do now—obtain from the note a correct appreciation of what the facts are and then apply the law to them, instead of binding us, as I suggest it is impossible for us to be bound, by a case stated on what is really inference from a course of conduct which may have extended over years. After all, the hearing of these appeals is something in which Judges in my Division are particularly versed, and they feel very strongly—I am speaking for them too—that if this change is made it may deprive us of our most useful class of work.
There is one other matter which the noble Lord, Lord Crook, mentioned—namely, as he said, the resentment felt by some appellants because the Divisional Court, not having seen the witnesses, feels that it cannot interfere with the decision of the court below. My Lords, precisely the same argument—neither more nor less—could be used to justify 1032 the demand that a man or a woman who had been unsuccessful in a divorce case should be allowed to have the right to a re-trial before another judge without the necessity of going to the Court of Appeal. I suggest that that is really no ground at all. But may I just add this in support of what I have said? I have done my best in the last few days to make some sort of analysis of these appeals that come before us. I do not pretend that it is mathematically exact, but I am satisfied that it is near enough to be useful. I find that of recent appeals only about 15 per cent. could possibly be appropriate to be dealt with by way of case stated, and that is really the residue which will be left to us if this clause goes through.
For the rest, not more than another 15 per cent. are simply questions of amount. I do not believe that appeal is necessary on amount. It has long since been settled that the proper way for a man to deal with the matter, if he is dissatisfied on the question of amount, and if he cannot pay what has been ordered, is to go back to the justices, who have ample jurisdiction to review their former order without being bound by anything that they have decided before. The other 70 per cent. or thereabouts are these questions of mixed law and fact which I have already described. Of those, we allow appeals in rather more cases than we dismiss them; and I am quite clear in my own mind that the proportion of those dismissed in which we are not able to say absolutely definitely that the case is either right or wrong, but merely have to dismiss it, because we have not seen the witnesses and the justices have, is very small. I doubt if it amounts to 10 per cent. of all appeals. I, therefore, close with this remark: that this seems to me to be the slenderest possible reason for making a drastic change of this character in a Court which, I believe, has functioned with reasonable satisfaction ever since the institution of this jurisdiction. I hope that on Committee stage wiser counsels will prevail, and that this clause will be withdrawn.
§ 5.55 p.m.
§ VISCOUNT SIMON
My Lords, I would like to add a few words, not because I have any special professional knowledge of this particular procedure but because, as the noble Lord, Lord 1033 Crook, said, we have a responsibility in this House to make this Bill, by co-operation, as good a Bill as we possibly can. What we have just heard from my noble and learned friend, Lord Merriman, is, of course, a matter we shall want to consider at the Committee stage, but I will say just a word about it before I sit down. But first let me say that I think we owe a real debt of gratitude to Lord Crook for presenting the Bill as a whole to us so clearly and comprehensively, and I think we in this House would at the same time like to express our satisfaction at the fact that in another place, in spite of the pressure of business, time and opportunity have been found for a private Member of the House to introduce a most useful Bill, to carry it through in good time and to send it up here, where I am certain we shall want to assist in putting it on the Statute Book. At a time when tremendous problems of public importance are crowding the minds and thoughts of everybody, it must be a great satisfaction to be able, with everybody's good will, to do this useful piece of work as a private Member of the House and get it on the Statute Book. This is the first time that such a Bill has come up here in recent years. Another, of which I shall have the honour of taking charge—namely, the Adoption of Children Bill—is coming up in a few days' time, and to a certain extent I am preparing the way for a repetition.
The main provisions of this measure are surely admirable. The object of the Bill as it was introduced was really to correct the ridiculously low maximum figure which magistrates may order a husband who has behaved badly to pay his wife under this procedure. To say that he must pay her £2 a week as a maximum and another 10s. as a maximum for each child, may have been right long ago, for all I know, but it is not right now. I need not say anything more about: that, except that Lord Crook has completely convinced us that the main object of the Bill is perfectly right. Whether the amount for the child should be 20s. or 30s. we may perhaps have to consider in Committee.
That was the real object of the Bill, but a very odd thing happened to it which may be quite all right but which we must consider. At the very last moment, on the Report stage of the Bill 1034 on June 24 last, there was added to it what is now Clause 7. I do not say that that is not within the scope of the Bill—of course it is—but it was no part of the original project at all, and though it was presented in a very clear speech, it is perfectly correct to say that except for the speech of the honourable Member who moved it, nothing else whatever was said. Even the seconder elected only to second the Motion, and the clause was then and there added to this admirable Bill, without any discussion. Therefore I think we are bound to consider during the Committee stage whether that particular addition is useful or not.
We all listened with great care to what my noble and learned friend Lord Merriman said, and it is obvious that he, with very great knowledge of this subject—far greater knowledge than I think anybody else in this House possesses—is convinced on public grounds that it is a mistake to add this clause to the Bill. I can see one or two considerations which might be urged in its favour, but I appreciate the argument he uses. As I have said, I am not speaking from any special knowledge of this subject; it does not happen to be in the line of country with which I have been professionally concerned. But if one puts it in very simple terms, that is how it seems to me to stand.
Of course, when magistrates decide some matter of summary jurisdiction, it is in most cases right that the party who does not feel that the decision is just should have the right of appeal. In an ordinary case, as for example, if I am charged with driving a motor car while under the influence of drink or have any other of a variety of charges brought against me, if I am not satisfied with the decision I have an appeal, and that appeal is to Quarter Sessions. An appeal to Quarter Sessions, as your Lordships appreciate, is a wholly different thing from an appeal of the kind which has hitherto existed in regard to orders made against husbands by magistrates in cases where the wife alleges that she has been treated cruelly or deserted, or whatever it may be. Before Quarter Sessions, the matter is begun all over again. All the witnesses are called again. It is a retrial in the strictest possible sense, and the appeal succeeds or, it may be, fails. 1035 That is the ordinary way in which, nowadays, those charges which are dealt with in the first place, summarily, in the magistrates' court, or at any rate by a magistrate, are reviewed.
I understood my noble and learned friend, Lord Merriman, to say, on the ground of conformity with the regular practice, that it would be a mistake to say that that is the best way in which to proceed for an appeal in cases where magistrates order husbands to pay something to their wives. The object of Clause 7 really is to say that an appeal in a case of that sort shall be as it is in cases of ordinary charges relating to some petty crime. At first sight, it might be thought difficult to see why, if it is a good thing in one case, it should not be a good thing in the other. But I do point out that, for my part, I feel that my noble and learned friend has made some very important points in this connection. In the first place, it is the judges of the Divorce Court and no one else who have to deal with these very issues of cruelty or desertion or whatever it may be, if the matter ripens into a divorce case. They are, unquestionably, the persons who, by experience, devotion and skill, are specially qualified to judge that kind of question. On the other hand, the ordinary Quarter Sessions Benches—to which many of us here have belonged at some time or another—really cannot claim to have any special knowledge of that subject. The question of what amounts to cruelty and what amounts to desertion is sometimes a rather special sort of question. I think, moreover, that Lord Merriman is strongly based when he says that it is necessary to lay down a general set of principles which will be followed. That is much better done in the High Court than by the people who sit at Quarter Sessions in different parts of the country.
There are, of course, arguments the other way. One possibly good argument—if there is a good argument the other way—is this. If the decision of a magistrate or magistrates in a case of this sort is wrong, and the husband ought not to be ordered to pay money to his wife on the grounds suggested, the method of appeal at present is to go to London and there in the High Court to get the appeal dealt with, whereas, if he had an appeal 1036 to Quarter Sessions, in some cases he would be able to get it heard much nearer to his home. Therefore, at first sight, Quarter Sessions, from that point of view, might appear to be the better tribunal. I mention these points merely to show that I have followed all that my noble and learned friend has said. I think that when the Committee stage is reached we shall have to consider this matter a little more closely. My present inclination is to think that Lord Merriman has made a very strong case for leaving this part of our procedure as it is. The change which is proposed was put in the Bill only at the last moment and, so far as I know, without any consultation with those who may be supposed to have any qualifications to advise on such a matter. We shall hear in due course what the Lord Chancellor has to say and we shall be, I am sure, largely assisted by his view. I merely say that, having listened to the arguments which have been put forward, my impression is that it would be just as well if Clause 7 were left out. I would add that I have not the slightest doubt that the Member of Parliament and his supporter who moved its insertion were actuated by nothing except the consideration of improving the Bill. For the rest, this is admittedly a very good Bill; it is most desirable that it should get on the Statute Book, and no further words from me shall delay its progress.
§ 6.8 p.m.
My Lords, subject to certain criticisms, I think that this is an excellent Bill, and I hope that your Lordships will have no difficulty in giving it a Second Reading. Clause 1 of the Bill contains a most desirable provision. Apart from any question of depreciation in the value of money, I have taken the view for a long time that the jurisdiction of magistrates is far too restricted in regard to the amounts which they may award both to wives and lo children. Let me take the case of a married man with no children, who has an income of £1,500 a year. Suppose he deserts his wife. Until his wife takes proceedings in the Divorce Court, she can get no more than £2 a week by way of maintenance for herself. When she takes proceedings in the Divorce Court, I may say, without going into any technical details, that she will be entitled to one-fifth of her husband's income, pending proceedings. That is to say, she will be entitled 1037 to an allowance of £300 a year or £6 a week. Therefore, your Lordships will see at once that the present Bill fills a very important gap.
There is one point in regard to procedure, however, which I would like to mention. As your Lordships know, the state of a man's income is just as much a fact as the state of his digestion, but it seems to me that the view which a man takes of his income is sometimes coloured by the circumstances in which he ands himself. For example, if a man knows that a charge is going to be levied upon him and that that charge is going to depend on the size of his income, human nature being what it is he will take a very depressed view of his financial resources. In other words, I suggest that magistrates should he given precisely the same powers as the High Court in regard to ascertaining the amount of income of respective spouses. I observe that in this Bill there are no provisions for making regulations. Perhaps regulations may be made under some other Act which is to be read as one with this Bill, and therefore it may not be necessary to have such provision in this Bill. But, under any clause which gives power to make regulations, I hope that in due course regulations will he made which will confer upon magistrates similar powers to those enjoyed by the High Court for ascertaining the amounts of incomes of parties to matrimonial disputes. Clause 2 is consequential to Clause 1. Clauses 3, 4, 5 and 6 are all commendable.
With regard to Clause 4 (1), speaking for myself, I would leave out the reference to "special circumstances." I think that when you use the phrase "special circumstances" you are simply opening up an avenue for argument as to what does or does not constitute "special circumstances." The subsection would read equally well if the relevant passage were framed as follows:that officer shall, unless it appears to him that it is unnecessary or inexpedient so to do, give to the married woman notice in writing stating the particulars of the arrears.I come to Clause 7 of the Bill, and I will say at once that I disagree entirely with it. And if everybody else is too modest to take any steps in the matter I propose to move art Amendment on Committee stage to delete the clause from the Bill. As your Lordships know, the 1038 present method of appeal is an open appeal to the Divisional Court of the Divorce Court. It is a method of appeal which, by general consent, is expeditious, reasonably cheap (I insert the word "reasonably" because nothing in the law is cheap), and I have never heard one single word of complaint about that method of appeal. The Divisional Court of the Divorce Court looks at the substance of the matter, rather than at the mere bones of the dispute, and from personal knowledge I may say that immense pains are taken in every case to see that justice is done and that the court gets to the root of the matter. The suggested alteration provided by Clause 7 is, in my view, cumbersome, does not reduce expenses and will not effect any improvement in justice at all.
The further procedure by way of case stated on a point of law is, in my view, most undesirable. It has been said that a case stated is sometimes an excellent way of ascertaining a point of law upon admitted facts. But I believe the "case stated" procedure is almost always a very undesirable way of ascertaining anything. I have no doubt that many of your Lordships, in the course of your careers, have been asked to draw up a case. May I strike a personal note for a moment? I have sometimes been asked to draw up a case to be stated before the High Court. I say without hesitation that I would sooner try to draft an Act of Parliament. When that document has finally been agreed with the clerk of the court and comes before the High Court, the deciding judge has always turned to me and said, "I have never seen a worse piece of work in my life." However, I have the satisfaction of knowing that he has probably said that to everybody else, so I am not unduly disturbed. I can assure your Lordships that appeal on a point of law by case stated is one of the most uncertain ways of arriving at the real truth in any matter. Therefore I hope Clause 7 will be removed from the Bill. Subject to these few criticisms, I think this is a very good Bill, and I hope your Lordships 'will give it a Second Reading.
§ 6.13 p.m.
THE MARQUESS OF READING
My Lords, I would like merely to add a few words to what my noble friend Lord Meston has said. The noble Lord who 1039 moved the Second Reading of this Bill did so with such a disarmingly conciliatory approach that at one moment I thought he was going to move for us on Second Reading the Amendments we might move on Committee stage, for I think he already has under his eye the possibility of some Amendments being needed on certain points. Like other noble Lords, I want to say one word on Clause 7. Apart altogether from the circumstances in which it entered this Bill, it seems to me that in its present form the clause has the undesirable effect of making what was neat clumsy, and what was definite vague; and that is surely not a very happy method of drafting a provision in an Act of Parliament.
It was said by the noble Lord, Lord Crook, that men had a grievance about being brought up to London. At Quarter Sessions on a re-hearing, a litigant and witnesses have to appear personally on the spot. Re-hearing in London is a re-hearing on paper material, and there is no reason whatever why the litigant, and certainly his witnesses, should appear in London at all. The matter can well be handled by his advisers. The view was put forward in another place that the Divisional Court of the Divorce Division was generally regarded as inefficient and dilatory. Those who practise in that Court, some with considerable experience whom I have consulted on this matter are the last persons to advocate or in any way support that view. The efficiency of the Court is unquestionable, and in regard to any question of its being dilatory it is true to say under present conditions that no court could be more thoroughly abreast of its work than that Court. I very much hope that when we come to Committee stage wiser counsel will prevail, and that this somewhat regrettable clause will disappear from this Bill into the shadows from which I think it should never have emerged.
§ 6.17 p.m.
§ LORD CHORLEY
My Lords, I am in the somewhat embarrassing position of having to be prepared to explain the views of my noble and learned friend on this Bill, as he has not returned from his other 1040 engagements. He has asked me to express the warm appreciation of the Government of the general principles of the Bill and his own welcome to it. In respect of its general principles it has been received with support on all sides of the House. As my noble friend Lord Crook, who moved the Second Reading in such a pleasant and lucid speech, has said, any little blemishes can be removed during the Committee stage. My noble friend pointed out that Clause 2, which deals with the financial provisions, brings in the age of sixteen. That is a perfectly good point, but my noble friend will appreciate that Clause 2 was there before Clause 3 was added at the last moment, and steps are already being taken for the purpose of correcting that matter by an Amendment at the next stage. My noble friend himself appreciated that there will be some question as to whether the provision of 30s. for each child is not rather too generous. My noble and learned friend also felt that, but it is again a matter which can be argued on Committee stage.
The new proposed arrangements for appeal have, I think, met with no sort of commendation from any noble Lord, most of whom have had a good deal of experience in these matters. These provisions have been severely criticised by the noble Lord, the President of the Probate, Divorce and Admiralty Division, than whom, either inside or outside your Lordships' House, no one speaks with such a weight of authority. In regard to that I will say only that it was not inserted at the very last moment. A clause of this kind was in fact sanctioned at Committee stage, but was withdrawn after criticism of its drafting. The clause which now appears was a re-drafted clause of the same kind. I understand that the substantial point made in its favour was that at Quarter Sessions it is possible for magistrates to see and hear witnesses, which is sometimes better than going into what has been said, so to speak, secondhand, on paper. My noble and learned friend has himself felt that this is a clause which would require very careful consideration, and he is inclined to regard it with considerable apprehension. I am sure if he had had the pleasure of hearing the criticisms made about it on all sides of your Lordships' House this afternoon his 1041 misgivings would have been increased. It may be that my noble friend Lord Crook will be able to accept an Amendment removing that clause from the Bill when it reaches the Committee stage. With those few observations, I have no doubt that your Lordships will give the Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.