Lords Sitting of 12 July 1963

Preamble
The House met at eleven of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter

MATRIMONIAL CAUSES AND RECONCILIATION BILL
11.5 a.m.
Order of the Day for the House to be again in Committee read.
Moved, that the House do now resolve itself into Committee.—(Lord Shackleton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
Clause 1:
Presumption as to condonation by husband
1. Any presumption of condonation which arises from the continuance or resumption of marital intercourse may be rebutted on the part of a husband, as well as on the part of a wife, by evidence sufficient to negative the necessary intent.
LORD HODSON LORD HODSON moved to leave out Clause 1. The noble Lord said: The three Amendments which stand in my name and that of the noble Baroness, Lady Summerskill, have to do with the same subject—namely, forgiveness—and in our view they are interrelated, but some of your Lordships, I know, take a different view and think that they can be treated independently of one another, so I am addressing myself now only to the first Amendment. It is important, if I may humbly do so, to remind your Lordships of what forgiveness is. It is a free and full for giving, without resentment being allowed to remain. In my submission, it is something which you cannot take back when you have given it. That underlies the whole argument in relation to all these Amendments.
The first Amendment can be dealt with, so far as I am concerned, quite shortly. On the Second Reading I indicated my intention of raising this matter on the Committee stage. The first Amendment deals with an attempt to alter the law on the recommendation
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of the Royal Commission, which unanimously suggested this alteration on the basis that it was fair to put husband and wife on the same footing, for a wife who has sexual intercourse with her guilty husband is not conclusively held to have forgiven him in law. That, I think, is for obvious reasons. There are physical differences between men and women and certainly years ago a wife's economic position was very weak indeed; it is better now but, even so, it is difficult for a woman to leave home and perhaps leave her children, or, if she stays in the home, to resist her husband's advances. The law has always held that the position is entirely different where a man is concerned. To put it quite bluntly, if he finds his wife is guilty of an adultery and sleeps with her and has relations with her, he cannot thereafter say that he has simply used her, and not treated her as a wife; in other words, that he has not truly forgiven her.
I think it is really a matter where honour is concerned, and if there is to be an equation of men and women the equation ought to go the other way, and in these days of the emancipation of women a woman should be conclusively held to have condoned her husband's adultery. But I am not advocating that. I ask your Lordships only to leave the law as it has been hitherto, and, indeed, as it has been confirmed by the decision of this House some ten years ago. I have used the word "forgiveness" rather than "condonation", because condonation has a legalistic significance. It is exactly the same word and has exactly the same meaning, as those who have studied the Canon Law, I am sure, will agree. I think (I speak subject to correction) that the derivation of the word is the same and it carries the same implication.
I do not want to repeat what your Lordships have heard before, but I should like to reply to what was said against me on Second Reading. My noble friend Lord Shackleton was the only speaker on the other side who really grasped the nettle, if I may say so, because, the point being made against him that a woman might become pregnant in the circumstances which we are considering, he implied that that did not trouble him, because in those circumstances the reconciliation might become the more probable. I quite accept that and I think

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it would; but surely that does not answer the point that if the reconciliation does not become effective, the husband under this clause would nevertheless be entitled to put away his wife.
My noble and learned friend Lord Denning, who, as your Lordships know, is unable to be here today, made some observations about what I had said. Perhaps it is scarcely fair to reply to him in his absence, but I think I must say that he did not deal at all with the argument which we on this side had put forward. He said that a woman may entrap her husband. If he meant by that that she obtained forgiveness by fraud, that is not in law condonation; so that goes out of the way. If he meant that, relying on his love for her, she might by guile persuade her husband to forgive her, my answer to that is: Why not? Good luck to her if she can! I see no answer in that. My noble and learned friend went on to say that he had tried cases where women who had been guilty of adultery had lied in court before him, and falsely sworn that the husbands had had intercourse with them after knowing of their infidelity, and he had disbelieved them. I do not criticise him for that, because a woman in that position, against her husband's denial, will have great difficulty in being believed. Ex hypothesi she has lied. Adultery was lying and deceit. She will find it difficult to be believed if she says, contrary to the truth, that the adultery has been forgiven. That is what I think he said on that topic. But it does not deal with my argument that, if there really is forgiveness—and I equate forgiveness with the physical act that marks the forgiveness, which is where I think lies the divergence between myself and those who take the opposite view—a man ought not in honour to be allowed to say after that act that he has not forgiven his wife. I beg to move.
Amendment moved—
Leave out Clause 1.—(Lord Hodson.)
BARONESS SUMMERSKILL: In my opinion, this clause is closely related to Clauses 2 and 3, and therefore I propose to address myself to the three clauses at this stage. I must at the outset admit to having changed my mind when regarding
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the effect of what are quite erroneously called the reconciliation proposals in this Bill. On the Second Reading of the Bill I was preoccupied with the possible addition of the 7-year compulsion clause, as I call it, and I failed to give sufficient consideration to the other provisions, although I expressed concern at that time with the plight of the wife who might become pregnant during the period of resumed cohabitation. I can explain my failure to consider this more fully only by the fact that the word "reconciliation" is sweet to the ear. I would go so far as to say that it is most unfortunate that this word has been included in the Title, and I am glad that my noble and learned friend who has just spoken has down on the Marshalled List a subsequent Amendment in which he will move to omit that word, provided that we are successful in persuading your Lordships to omit these other clauses.
It seems to me, on further reflection, that after the people have separated, cohabitation will not solve their fundamental differences. The initial cause of the trouble may be attributable to a selfish or mean husband, or to a bad-tempered and jealous wife, who may be a bad housekeeper and continually irritates her husband. An examination of the cause of these early difficulties, with the aid perhaps of a marriage counsellor, a clergyman or a general practitioner, may help. But renewed sexual intercourse will not act like a magic potion, except temporarily to blur the fundamental character differences. There are some lawyers, I know, who regard sexual disharmony as a frequent cause of separation, and believe that this period of cohabitation might help to resolve a couple's differences. I speak from knowledge of the consulting room; they speak from knowledge of the law courts. I suggest that my knowledge is perhaps nearer to the human problems of the husband and wife than even that of the lawyers.
I agree that sexual disharmony exists among couples seeking divorce; but that is generally the penultimate chapter in the story. The consistently heavy drinker, or the mean man, produces a frigid wife. She may simulate pleasure in the sexual act, but after a time she makes no secret of the fact that her

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husband is repulsive to her. A bad-tempered or selfish wife can produce a sexually indifferent husband. As the marriage founders, they are certainly sexually incompatible. But that is a symptom of marital disorder and not its cause. There are few couples who complain of sexual incompatibility during the first few months of married life, and very few who complain of it during the honeymoon. It is extremely doubtful whether the resumption of cohabitation with the same partner will effect a cure. If it was suggested that a course of psycho-therapy should be undertaken, that might be effective; but simply to bring the two people together for three months when they have quarrelled over a period of years and then find that they are incompatible sexually, does not guarantee a cure of the fundamental cause of the marital disharmony.
Apart from the possibility of pregnancy, it must be repugnant to any decent-minded person for the law to provide an opportunity for the husband to resume sexual intercourse for a night, a week-end, or three months, and then to proceed with the divorce. The Bill provides for the husband to live with his wife on trial as a mistress before deciding to resume married life. I agree that they went through the marriage ceremony years ago, but for this purpose she will be in the rôle of a mistress, because she can be cast off completely if he is not satisfied with the week or three months' sexual intercourse with her. We must picture the wife separated from her husband, living with the children in a house with a mortgage, and the furniture on hire-purchase. And that is the common condition of many married couples in this country today. If the husband wished, he could take the house and the furniture from her simply by stopping paying the instalments. Therefore, I would say this is the mind of the woman: desperately anxious to keep a home, and in a mood of unjustifiable optimism, she may well, against her better judgment, resume cohabitation, and after a day or a week-end, having impregnated her, the husband can leave her without any commitment whatsoever.
Since the Second Reading of the Bill, I have given this matter considerable thought, and I have thought of another aspect of the case. An irresponsible man
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may, as I say, stay with his wife only one day and then leave her. Of course, he can subsequently deny the paternity of the child if she becomes pregnant. How can a woman, if she is separated from a man over a long period and then, because of that one occasion becomes pregnant, tell the world that this was the cause of her pregnancy and expect to be believed by everybody? Somebody in the road may well say, "We know that woman has one or two men friends"—and she might well have. The husband has called there one night, and it is the easiest thing in the world for him to deny the paternity of a child.
I say that this Bill, apart from the question of pregnancy, will provide an irresponsible man with privileges which will degrade his wife and himself. It has been argued (the noble and learned Lord, Lord Hodson, mentioned this point; and it was raised also, I think, by another noble and learned Lord) that the law as is stands tempts a separated woman to entrap her husband by encouraging him to cohabit, whereby he will forfeit his chances of securing a divorce. A man must be very naive, or very devoted, to be entrapped by a woman for such a purpose, because he would find no difficulty at all in securing such services elsewhere. On the other hand, if this Bill is passed unamended, wives separated from their husbands, and living precariously with their children, would agree to full cohabitation, believing in their hearts, as most women do—it seems quite fantastic, my Lords, but quite sophisticated women believe it—that when a man asks for sexual intercourse it denotes his deep affection. Such a woman may well believe that this man has fundamentally changed. I say that these women, living precariously, would believe in their hearts that full cohabitation would be the first step towards resuming married life. I do not believe that if a man sincerely desires to continue the marriage he must have intercourse with a wife, with whom he has already lived, before making up his mind.
It has been mentioned that in the case of the wife becoming pregnant, a divorce should not be granted. Of course, such a suggestion is preposterous. To frame legislation to ensure the perpetuation of unhappiness would be the essence of folly and cruelty. It seems to me that full cohabitation will not settle anything, and may, indeed, do untold harm. Surely,

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cohabitation should follow a decision to resume marriage and not precede it, otherwise—and this is another point I bring to the attention of your Lordships—we are establishing a system of trial marriages in this country. Anybody who supports this Bill as it is cannot logically denounce trial marriages. If we legislate for what is, in effect, pre-marital cohabitation, in order that the parties can ascertain whether they can live together satisfactorily—indeed, if this Bill reaches the Statute Book—an unmarried couple could well argue that they must also have pre-marital sexual experience in order to assure themselves that the marriage will be a success. I would say that no parent who supports this Bill could logically deny his adolescent children who say that they believe in trial marriages.
A couple who have lived together for some years cannot plead this reason; yet this Bill would give the blessing of Parliament to sexual intercourse for three months without the promise of marriage. There are ample opportunities for a man and wife to effect a reconciliation, by meeting each other, talking things over, and enjoying their children together. This measure, unamended, far from promoting lasting happiness, could be instrumental, in my opinion, in creating fresh problems.
THE LORD BISHOP OF EXETER: My Lords, the noble Lady has confused me. I am not quite sure what we are talking about.
BARONESS SUMMERSKILL: thought I made it quite clear—and, after all, the legal luminaries of this place agree with me—that these three clauses are related to each other. Therefore, I was addressing myself to the three clauses.
LORD LUCAS OF CHILWORTH: Might I ask the Leader of the House whether he can do something about the acoustics? With the noise that is going on outside we cannot hear, and no effort is made to help noble Lords at this end of the Chamber. We cannot hear a word that is going on at the other end.
EARL ST. ALDWYN: I appreciate that it is difficult, but I am afraid I have no control over the noise outside.
LORD LUCAS OF CHILWORTH: But the windows could be closed.
EARL ST. ALDWYN: It might make a slight difference.
LORD HAWKE: The windows are just being opened.
LORD HODSON: Might I intervene to say that I was addressing myself only to the first Amendment, to leave out Clause 1.
11.29 a.m.
THE LORD BISHOP OF EXETER: I am not quite clear whether we are debating Amendment No. 3, to omit Clause 1, or Amendment No. 4, on Clause 2. Although I agree they are connected, they are not the same and involve different principles. May I deal with Amendment No. 3? I have great sympathy with the noble and learned Lord, Lord Hodson, in so far as he bases the Amendment on the doctrine that once you have given your forgiveness you cannot take it back. With that I am in entire agreement. Where I differ from the noble and learned Lord is that I do not understand why a single act of intercourse between a husband and an errant wife should set up an irrebuttable assumption that he has in fact forgiven her.
The noble Baroness, Lady Summer-skill, has drawn us many terrifying pictures of the malicious and immoral husband who, under Clause 2, would have sexual intercourse with his wife without the slightest desire of a permanent reconciliation. That, at least, is what I understand the noble Baroness to be arguing. And it seems to me that this Clause 1 as it stands in the Bill is eminently common sense, and that the presumption of forgiveness by the husband if he has sexual intercourse with his guilty wife after her adultery should not be an irrebuttable assumption and an absolute bar.
I think that I have some slight indication that this was the attitude of the ecclesiastical mind when the matters of marriage were administered by the Ecclesiastical Courts. Last night I looked up Burns' Ecclesiastical Law, which was a sort of standard text book, and I quote from a judgment which he quotes in the Ninth Revised Edition of 1842. Dealing first with the wife, he says:
"It is not necessary for the wife to withdraw from cohabilitation on the first or second instance of misconduct. It is legal

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and meritorious to be patient as long as possible. Forbearance does not weaken her title to relief, but the condonation of a wife's adultery by her husband, and still more repeated reconciliations after repeated adultery create a bar of far greater effect than does the condonation by a wife of repeated acts of cruelty."
It seems to me that if you translate the principles underlying that part of that judgment into the twentieth century, it would be proper to understand that if it were legal and meritorious for the wife to be patient as long as possible, it should be legal and meritorious for the husband to be patient as long as possible. And we do not want to continue the present situation where the husband, if he discovers his wife's adultery, must turn her out of the house at once or get out of the house himself at once without any time for reflection, otherwise he is held irrebuttably to have condoned the offence.
LORD HODSON: That is not so. The point of this, surely, is sexual intercourse; not staying in the house.
THE LORD BISHOP OF EXETER: The reason for turning the wife out or leaving the house is usually to avoid sexual intercourse. I cannot see anything very dangerous in the Bill as it is, because it merely leaves it with the Judge to determine whether there is evidence sufficient to negative the necessary intent to forgive or whether there is not. If there is not, then the offence is condoned; if there is, then the offence is not condoned.
LORD SHEPHERD: Perhaps the noble and learned Lord the Lord Chancellor could give us some guidance because I think there is some difficulty here between us. My noble friend spoke to the three clauses, particularly No. 2, which is the reconciliation clause. My understanding is that if the Amendment of the noble and learned Lord, Lord Hodson, to Clause 1 were to succeed it would automatically mean that Clause 2 would fall; in other words, that Clause 1 would have to remain if Clause 2 were to remain in the Bill. Am I right on that?
THE LORD CHANCELLOR: I must say that I have not given consideration to that question. I thought we were discussing, according to the mover, only Amendment No. I, which is perhaps at least a narrower issue than that raised on
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Clause 2. I should have thought that there was advantage to the Committee in confining the discussion at this stage to Clause 1, which is a particular and special point, and when we have dealt with Clause 1 to go on to consider what impact our decision may have on Clause 2. Frankly, I have not considered that as yet and I hesitate to express an opinion on it. Obviously they are to some extent related, but I have not considered it, so I cannot say that if the Amendment to Clause 1 were accepted, it would mean that Clause 2 would fall. I am not, of course, in charge of the Bill, and I have not had notice of this question, but I should have thought it was convenient to keep the discussion to the particular Amendment moved by the noble Lord.
LORD CONESFORD: I have so often been in agreement with the right reverend Prelate that I differ from him with reluctance to-day, but at the moment I find myself in agreement with my noble and learned friend who moved this Amendment. As he stated in his intervention just now, of course there is no compulsion on a husband, who thinks he has evidence of his wife's infidelity, to leave the home, no compulsion of any kind. He can remain and think the matter over and make his decision. The question is whether he can have sexual intercourse with his wife and then say thereafter that he has not forgiven her and can proceed with the grounds for the divorce which he already had.
When I was practising at the Bar I never had any practice in, or knowledge of, the Divorce Courts, but in an ordinary Common Law practice I was frequently familiar with correspondence conducted without prejudice and the convenience of that correspondence. I confess quite simply to the Committee that I should have thought that one of the few things you could not do without prejudice was to sleep with your wife.
LORD SHACKLETON: I think that Clause 1 and Clause 2—and here I agree with my noble friend Lady Summerskill—do in certain respects hang together. I think it would be possible to retain Clause 1 in the Bill without Clause 2, but I do not think it would be possible effectively to have Clause 2 without Clause 1. I should like strongly to resist this Amendment. The fact that a man and a woman should be put on the same

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basis was one of the few unanimous recommendations of the Royal Commission, and on this they said:
"Whether or not there is to be a trial period of cohabitation"—
and the majority were in favour of that—
"we are all agreed it is anomalous that a husband and wife should not be on the same footing with regard to the presumption of condonation which is raised by acts of sexual intercourse between them. We consider that there can be circumstances at the present time when the fact that one spouse has had sexual relations with the other does not amount to that full forgiveness and reinstatement which in our view should constitute condonation. We recommend, therefore, that an act or acts of sexual intercourse between husband and wife after the commission of a matrimonial offence by one which is known to the other, should raise a presumption that the offence has been thereby condoned, which presumption may be rebutted by sufficient evidence to the contrary."
The effect of this clause is to put the man and wife on the same basis. The argument for this seems to me to be quite overwhelming. Although I may disagree with certain of your Lordships in regard to the rôle of the matrimonial offence in regard to divorce, and whether there should be other grounds, I should like to make it clear that I have no intention at a later stage of the Bill of reviving that particular matter. I was encouraged by the speech of the most reverend Primate the Lord Archbishop of Canterbury, who said that he was going to consider this, and made some interesting suggestions about the Belgian law, which I will not go into now. But I wholeheartedly agree with those who take the view that a single act of adultery or a single act of cruelty, or even of desertion, should not automatically be pursued through to the bitter end, which is what the law in fact compels us to do now. We shall be arguing this aspect of it rather more fully on Clause 2.
I shall not deal with the point the noble and learned Lord, Lord Hodson, made with regard to forgiveness, because I think the right reverend Prelate the Lord Bishop of Exeter answered that very effectively. The noble and learned Lord, Lord Hodson, referred to Lord Denning, who is, unfortunately, unable to be here; or he would be, I know, opposing this Amendment. Lord Hodson mentioned certain examples where wives had, in his view, lied in court, and I agree that
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he did not accept those lies. It is possible to entrap a man, but even if it is not, even if the man was astute enough, or was willing to take the chance, he would be advised by his legal advisers not to return and thereby condone the offence. I must say that I think the view that a man and woman in this respect should be on a different basis is quite irrelevant to our present-day view of the relationship between men and women.
I should like to repeat an argument that I made on Second Reading with regard to a man who finds that his wife has been unfaithful to him. How the husband will react will depend on his own nature, and on all sorts of circumstances; one person may be willing to forgive quickly, but to another it may be the most tremendous shock and agony. I think there has been a little too much emphasis on the sexual aspect of this particular issue. I found myself disagreeing most strongly with the noble Baroness, Lady Summerskill. If a husband sleeps with his wife in those circumstances, it is not companionate marriage. She is his lawfully wedded wife, and the position is that they are wedded and that marital relations are right and proper; and there is no connection at all with the suggestion that this would be an encouragement to young people to enter into pre-marital sexual relations.
I hope that we shall accept that this is a reasonable and necessary step, one that has been recommended strongly by a number of people. It was certainly recommended to the Royal Commission by a number of distinguished lawyers, who were against the seven-year clause, and I think I am right in saying that the present President of the Divorce Division was in favour of this particular Amendment.
LORD HODSON: He is against it now, as I read in his speech to the Exeter magistrates.
LORD SHACKLETON: I have looked up his evidence, as I have, of course, looked up the evidence of the noble Lord, Lord Hodson, to which I shall be coming in a moment. This was a unanimous recommendation of the Royal Commission. This is an attempt to make reconciliation more easy. I appreciate that there may be certain legal difficulties, but as the noble Lord, Lord Denning

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said: [OFFICIAL REPORT; VOl. 250 (No. 88) Col. 406]:
"… a law which so hinders reconciliation, which prevents husband and wife attempting in this way to come together again, is, I suggest, a bad law, and indeed the whole of the Royal Commission recommended unanimously that husbands and wives should be on the same footing in this regard."
I hope that we shall retain this clause and oppose this Amendment. It certainly is essential to the latter clause. It was unanimously accepted in another place, after the most exhaustive discussion in Committee, and I hope that we shall reject this Amendment.
LORD CONESFORD: May I ask the noble Lord if he would give us his understanding of the concluding words of this clause:
"by evidence sufficient to negative the necessary intent."
What sort of evidence does he imagine would negative the intent?
LORD SHACKLETON: I am at a slight disadvantage with the noble and learned Lord, Lord Conesford, but it would seem to me that if, in fact, the condonation was not complete, this would be the evidence necessary to negative the necessary intent. I must admit that I explained when I introduced this Bill that I should perhaps be relying a little on the help of the noble and learned Lord, the Lord Chancellor, on that particular point.
11.47 a.m.
THE LORD CHANCELLOR (LORD DILHORNE): I do not know whether I can be of any assistance to your Lordships now in regard to the discussion we have had on Clause 1. First of all, may I repeat that the Government are not seeming to express any views one way or the other in relation to these Amendments. Having said that, I feel that I am at liberty to express a purely personal view on this question. Legal opinions and other opinions probably differ, and I do not personally regard this issue as at all an easy one. The noble Lord, Lord Shackleton, began his speech by saying that one could have Clause 1 without Clause 2, but not the other way round. I have looked at this point. I think he is entirely wrong about that. It would be possible to accept the right reverend Prelate's argument about the undesirability of husband or wife having to
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leave the house in order to avoid any possibility of condonation. It would relate to Clause 2, resumption or continuation of cohabitation. But that has nothing to do with the desirability or otherwise of encouraging sexual intercourse in the hope of establishing a reconciliation. Therefore, the two clauses, although there is some connection between them, are really quite distinct.
To get this matter in perspective, I think one has to bear in mind exactly what the position is, or may be, on which Clause 1 will bite. We are here concerned only with the question of a husband who is aware of the commission of a matrimonial offence by his wife, a matrimonial offence which would enable him, if he instituted proceedings, to obtain a decree of divorce. It may be that he leaves the house; or he may not: from the point of view of this clause, that is an irrelevant consideration. What matters here, and the point at issue in this Amendment, is: what is to be the effect on his rights in relation to his wife if, with full knowledge of the matrimonial offence committed by her, he then has intercourse with her?
The question, I think, was absolutely correctly posed by my noble and learned friend Lord Conesford: whether the husband can have intercourse with his wife and then say afterwards that he has not forgiven her and can divorce her, notwithstanding the fact of that intercourse, on account of the previous misconduct of which he was fully aware when he had intercourse with her. That is the question. It is a narrow question and, I think, a difficult one. I am sorry that the noble Baroness, when she made a powerful speech in support of all these Amendments, dealt at the same time with the different question which arises on Clause 2. I hope that your Lordships will consider this question quite separately and on its merits.
The noble Lord, Lord Shackleton, stressed repeatedly that this was a unanimous recommendation of the Royal Commission. I hope that one gives full weight to recommendations of Royal Commissions: they deserve the most serious consideration, and I am sure that this recommendation has been most carefully considered by a large number of people. Nevertheless, I must say, speaking from my own personal point of view, that I

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do not think it would be right to accept that recommendation. To me, it is repugnant that a man, after he has slept with his wife, with full knowledge of a previous matrimonial offence committed by her, should be able to come before a court and say—this is the question at issue here—"Yes, it is true I had intercourse with her, but I did not forgive her." To me, that is highly objectionable. It can be urged that that should be allowed to happen for the purposes of reconciliation. I wonder, however, whether there is much force in that argument. I myself should like to do everything, to secure every possible provision, to try to prevent a marriage from finally breaking down; to promote every possible effort for reconciliation. But I am wondering whether the price here paid for leaving it open to the man to come forward, after having had intercourse with his wife, the price paid so far as matrimony is concerned, is not too high.
Reference has been made by the noble Baroness to the difficulties that may arise if, as a result of that intercourse, the wife becomes pregnant. It might happen; and she might have real difficulty in establishing the paternity of the child. But to me it is, I must confess, repugnant that, having had intercourse with his wife, and after she has become pregnant, he should then, either during the pregnancy or after the pregnancy, be able to institute proceedings for a previous matrimonial offence committed before this intercourse took place; that he should be able to come before the court and say, "I knew of this matrimonial offence. I want a decree on account of this matrimonial offence. It is true that I had intercourse with her. It is true that she has now had a baby. But I had not really forgiven her. Therefore, I must be given by the court the degree for which I am asking." There is no provision in this Bill for making any exception where pregnancy results from such intercourse. That is one of the difficulties that may arise to be dealt with if this clause is enacted in its present form. For my part, as I say, I should like to see everything possible done to secure reconciliation.
The most reverend Primate the Lord Archbishop of Canterbury, in the course of his most interesting speech during the
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earlier proceedings on this Bill, gave an indication that he was actively pursuing consideration of these matters. It is not right for me at this stage to express any views upon that. I have never been one of those who would maintain that our divorce laws in this country are by any means perfect, and views may differ as to what possible changes there may be. But we are now being asked to make a change which I personally think goes too far. I do not believe that in making this change one is advancing the prospects of a successful reconciliation. To me, it is repugnant that a man, knowing that his wife has committed misconduct, should then be able to sleep with her and come forward afterwards and say, "I slept with her, but of course I did not forgive her." Reference has been made to the woman entrapping her husband to sleep with her. The noble and learned Lord, Lord Hodson, pointed out that if forgiveness was obtained by fraud it was not true foregiveness. That, surely, is a sufficient answer to that.
LORD SHACKLETON: Would the noble and learned Lord allow me to ask this question: if in fact a man does sleep with his wife, whether or not she has entrapped him, is the noble and learned Lord suggesting that the court would not regard it as condonation?
THE LORD CHANCELLOR: I was saying that if she has entrapped him—which matter, of course, all depends upon the evidence—the court may conclude that the forgiveness was obtained by fraud, in which case it would not amount to condonation.
I do not think I can usefully add anything more on this particular point. We must each form our own views. I myself think that it is misleading to suppose that this change in the law by Clause 1 will promote reconciliation. There is some force nowadays in saying that we must treat the two sexes alike. I am not sure that that argument cannot be pressed too far in relation to the particular matter dealt with in Clause 1. As I say, we must each express our personal views when it comes to dividing upon this matter. I hope your Lordships will appreciate that in expressing the view I have done, I am speaking only for myself and not for anyone else.
11.59 a.m.
LORD SHEPHERD: We are most grateful to the noble and learned Lord the Lord Chancellor, in particular for stressing that he is giving a personal view; because it must be recognised that when he speaks as Lord Chancellor he speaks with considerable weight and authority. I would suggest that in this respect we shall decide according to our own personal consciences and judgment. I approach this matter in this particular Bill with some trepidation and concern. I would recall the circumstances prevailing at the beginning of the Committee stage. The noble Lord, Lord Hodson, and my noble friend Lady Summerskill opposed the Amendment which would have become the seven-year clause. I joined them in the Division Lobby because I should find utterly repugnant the thought that an offended person in a marriage could be divorced by her spouse against her wishes, whether religious or otherwise.
I look upon this Bill as it is now before us with a different view. This basically concerns reconciliation, and, in spite of the advice of the Lord Chancellor, I cannot help feeling that if the noble Lord, Lord Hodson, were successful with his Amendment then it would automatically mean that Clause 2 would be of no account, for in regard to Clause 2 the question of cohabitation and sexual intercourse would be bound to arise. My noble friend Lady Summerskill dealt with the marriage which over a period was an unhappy one, due to the misdemeanours of either party, although I must frankly suggest to the House that her argument was put in an emotional way, in the sense that she assumed that the woman was always the offended party. As we well know, marriages break up because both husbands and wives become the guilty party. Therefore, we must not think of this matter as involving exclusively one party or the other; it involves both.
I am particularly interested in this Bill. It is not that I believe that reconciliation will have much effect on marriages which have undergone long-term trouble, but perhaps I could cite two cases as illustrations. One involved a wife who had had intercourse outside marriage and contracted venereal disease. There were two children of
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the marriage, and the husband decided in their interests—not in his own interest, because he obviously had sustained a severe shock in learning of this occurrence—to continue the marriage. He did not take advice from a solicitor or otherwise as to what should be done. It may be that many men and women make that decision. That particular marriage is now successful. I had some knowledge of that case, and while the husband continued to have intercourse with his wife—because what would marriage be if there were not the full sense of marriage, which must include sexual intercourse?—he was for many months under great emotional stress. However, that marriage is now successful.
Another case of which I have knowledge involved a man who went to a Christmas office party, perhaps had too much to drink, and committed one act of adultery. His wife obtained knowledge of it, and she, as in the previous case of the man I cited, sustained a shattering shock. She decided, in the first instance, that the marriage should continue for the benefit of the children, but in this particular case, perhaps the emotions of a woman being quite different from those of a man, after a period she could no longer continue to cohabit with the husband. She might well have been able to continue the outward appearance of marriage in the sense of coping with housekeeping and her duties in the home, but it became emotionally impossible for the marriage to be a full one. In consequence, human nature being what it is, that marriage broke up.
I think that perhaps we talk too much of the sexual side of this matter. I think that it would be wrong in the case of a man who makes a conscious effort to keep his marriage going for the sake of his children, that, having in the end failed, in sordid circumstances such as I have quoted, he should not be able to obtain a divorce. The noble Lord, Lord Hodson, spoke of forgiveness—that it should be free and without resentment. It is easy to say "I forgive," but human nature being what it is, it is hard to forget. To forget needs time. Therefore, it is easy for a husband to say to his wife, or a wife to her husband, "I will forgive. Let us try and make amends."

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But time will be needed for it to be forgotten.
I do not believe that marriages can be mended either in a clergyman's home or in a solicitor's office. I do not believe a marriage can be mended in a hotel or restaurant; champagne and wine will not make friendship. Reconciliation can take place only in the home. I believe that, if this clause remains in the Bill, it will be possible for a man such as the one I first instanced—and there may be many more like him—to say, "I will try to forgive. I will try to forget. But in my heart I know that if, having made the conscious effort, I fail, I can go to the court and say 'I have made an effort'". The man should then have the right to seek a new life.
We are not trying to find loopholes for looseness or otherwise. We are seeking reconciliation. I believe that this clause will go a long way towards reconciliation in families, reconciliation where the outside agencies which are in existence may not be called on to play a part—they will play a part, perhaps, in connection with Clause 2. There are many people who, when they are in marriage or family difficulties, do not wish to go out and inform a third party of the circumstances. There are many families who would rather fight to retain their family and their marriage within the walls of their own home. I believe that if this clause stands that will be possible.
LORD OGMORE: I have listened with great interest to all the speeches that have been made on this Amendment, and, as the noble and learned Lord Chancellor said, it is a grave matter on which differences of opinion may occur. I am bound to say that I was impressed by the argument of the noble Lord, Lord Shepherd, on the legal point. So far as I know, he is not a lawyer, but I feel he was absolutely right in saying that if this clause is rejected it will seriously affect Clause 2. It is going to make it very difficult indeed to have any relief under Clause 2 if Clause 1 is not in the Bill. Because a man has committed an act of marital intercourse, it may well take him outside the scope of Clause 2 as I read it.
It seems to me that the whole point of this Bill, as it now stands, is for
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reconciliation, and that any particular act shall not in itself mar the possibility of reconciliation. Because, in my view, those who are injured, as a rule, by the break-up of a marriage are the children. We have heard very little of the children this morning—nothing at all from the noble Baroness, Lady Summerskill, who, I thought, over-stated the case. I believe that in many cases marriage is not a mere matter of sexual intercourse—anyway, not in the later stages of it. There are all sorts of things—companionship, mutual interests, and, above all, the interests of the children; and as a grandfather I can say, also, of the grandchildren. There is the family life, and I will give an indication, if I may, of my own experience quite recently. I had a third grandchild and we were celebrating with a little party. I wondered what the first grandchild, who was four, made of all this, and I said to him, "Why do you think this is happening? What are we celebrating?". He said, "We are celebrating being all here together as a family". I thought that was a wonderful feeling on his part.
After all, what matters is family life. The trouble with this country to-day is that family life has to a large extent been diminished. There is not the warm family life that there used to be. Take countries where it is very difficult to get a divorce. It is practically impossible to get a divorce in Ireland; it is very difficult in Italy; in Israel it is difficult to get a divorce. Yet what stronger family life is there than among the Jews and the Irish and the Italians? Those are the people who have the strong family life. To my mind, easy divorce is a great mistake. I would put great restrictions on divorce. I believe that very often young people enter upon divorce because they think it is the fashionable thing to do, or they are in a hurry, or they are in a tantrum. This Bill is to be commended, because anything which gives pause, which makes them consider the matter and take a little time, should be well considered.
We are talking, of course, about countries which are either Christian or, in the case of Israel, Hebrew. Take the Moslem world. I am happy to say that in many countries of the Moslem world the position of women is becoming very much improved. Women are achieving a status which they never had before,

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certainly not in the days when I lived in a Moslem country. They had then very little authority, very little status, but they are getting it to-day. What is the first thing the women do when they get some sort of authority in a Moslem country? They press for restriction on the easy divorce that so often obtains in so many Moslem countries. It is not the women who want the easy divorce. Women here are very foolish to press for easy divorce; it is they who suffer from it. Therefore, I say that this provision is intended by Mr. Abse, Lord Shackleton and others who propose it, to give pause, to give an opportunity for the parties to come together again, to build up a family life anew and to prevent the little children, the people who suffer in a marriage which is broken, from having a home where the parents are separated. I ask your Lordships, in your consideration of this Bill in Committee to-day, to think particularly of the little children who may be affected if we do not pass the Bill as it stands.
12.16 p.m.
THE EARL OF IDDESLEIGH: I intervene with some hesitation, but I think it due to the Committee to say that I commenced my study of this Bill with a certain feeling of distaste, and with very considerable sympathy with the point of view expressed by the noble and learned Lord, Lord Hodson, and by the noble Baroness, Lady Summerskill. I have, however, been devoting great consideration to the matter and taking the advice of experienced persons, and I have rather reluctantly changed that view. I now consider that, distasteful though the alteration in the character of condonation may be, yet the Marriage Guidance Councils, the two Councils, with all their great experience of marital difficulties, are correct in their support of the Bill in so far as the reconciliation clauses are concerned.
When the noble and learned Lord, Lord Hodson, was speaking, he mentioned the question of Canon Law; and on this point I, as an unlearned man in either branch of law, speak with great hesitation. But as regards the Canon Law of the Mediaeval Church, and of the Roman Catholic Church today, I have made certain inquiries among those who have learning in this matter, and, with immense respect to the noble and learned
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Lord, I cannot agree with him that he can properly appeal to Canon Law, in my sense, in support of his arguments. It is not the case in Canon Law that condonation bears the exact sense of forgiveness. The Canon Law view of marriage, I understand, is based on the mutual rights that married persons acquire over each other; rights based on the text that "they shall be one flesh". When a marital offence occurs those rights are infringed, but the innocent party does not, and cannot in law, or indeed in commonsense, lose the rights which he possesses in virtue of his marriage. He may exercise those rights should he wish to do so. This, I think, disposes of the analogy of companionate marriage suggested by the noble Baroness. In an irregular arrangement of that kind there are no rights and no duties. But we, as legislators, in considering marriage, must devote ourselves to the question of the rights and duties of marriage partners, and we must consider marriage on that basis.
Now if a husband and wife come together with a view to effecting reconciliation, the innocent party is within his or her rights in cohabiting—a thing that could not be said of any party to a companionate marriage. It may be that the marital offence makes it so hard, so intolerable, for the innocent party to continue the vita communis, as we say, the common life of marriage, that that innocent party will go to his or her ecclesiastical authority, normally the Bishop, and ask that ecclesiastical authority to grant him or her separation à mensâ et thoro; that is to say, to be liberated from the rights which would otherwise be owed to the guilty party. The Ordinary has then to consider whether that plea, that the vita communis is intolerable to the innocent party, is justified or not. If it is found that the parties have in fact cohabited, that will affect the Ordinary's judgment as to whether the life is, in fact, intolerable. That, as I understand it, is the meaning of condonation in Canon Law. It is not forgiveness. It may be a proof that the vita communis cannot be said to be intolerable to the innocent party. I thought it desirable to clear up that point.
May I now speak, as briefly as possible, to a point made by the noble

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Baroness, Lady Summerskill, and other speakers about the possible conception of a child? If, as a result of the reconciliation period, the woman conceives a child, it is in the first place very likely that the conception of that child will in fact heal the marriage. Undoubtedly, many marriages break down because the natural desire of the parents to increase and multiply has not been satisfied, and there is a good chance that the conception and birth of a child will heal the marriage. But it may be that it does not heal the marriage, and then probably the child will be born and brought up by the mother, without a father. That is regrettable; that is sad for the child; for a child needs, or is at least greatly advantaged by, the love and care of both parents. But we must face the fact that the woman bringing up a child conceived under those circumstances is no worse off than many widows who have to bring up their children without the help of a husband. The child will have the same chance as the child of a widow, and we may expect that in many cases the mother's care will atone for the absence of the husband. Consequently, while recognising the validity of many arguments which have been used against them, I am in favour of the clauses, and hope that your Lordships will reject the Amendments moved.
12.24 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: It is perhaps inevitable that our discussion has strayed from the first to the second and the third of the Amendments put down by the noble and learned Lord, and if I may make just one wider reference to put my own view in perspective I would say that I believe that the case for the noble and learned Lord's third Amendment is overwhelmingly strong, that the case for his second Amendment is very strong indeed, and yet I believe that the discussion does not show him to have proved his case for his first Amendment. I intend to vote against his first Amendment presently, in the hope that what is now Clause 1 of the Bill will be preserved.
I was very moved by the words of the noble and learned Lord concerning forgiveness. Forgiveness is a deep matter,
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and in marriage and in other things forgiveness, in the deepest sense, has a number of expressions of which, in marriage, sexual intercourse may be but one. I would hope that the provision of the clause would enable there to be a chance for some marriages that are breaking down to win their way, in the end, to a deep and full forgiveness. Similarly, much has been said, not least by the noble and learned Lord the Lord Chancellor, about the repulsive aspect of what the clause in the Bill allows. It is repulsive, but we are already dealing with a situation which is repulsive. The infidelity has been repulsive; the marriage being in a state of breaking down and the quarrelling are deeply repulsive—but the hope is that the provision of the clause may enable some more marriages to win their way through, in the end, from out of all repulsiveness into reconciliation and harmony.
It seems to me that this first clause introduces no new principle into our laws of divorce. It introduces, rather, a parity between men and women in the operation of a law already existing. I believe that in some small way it may help the cause of the reconciliation and conservation of some marriages, and for that reason I hope that the noble and learned Lord's first Amendment will be rejected.
THE LORD CHANCELLOR: If I might just intervene again to clear up two points, I think it is important that I should do so. The noble Lords, Lord Shepherd and Lord Ogmore, asserted that if Clause 1 goes sexual intercourse for the purpose of reconciliation will not be permissible under Clause 2. I think that this is clearly wrong, for it ignores that argument in the words of line 14 of the Bill in Clause 2:
"or of anything done during such cohabitation,"
The fact is that much of the need for Clause 1 disappears if you have Clause 2. Really, Clause 1 is only effective where the intercourse does not form part of an attempt at reconciliation. Clause 2 deals with the cohabitation or the resumption of cohabitation, and anything done during such period of cohabitation—and I read the concluding words of Clause 2(1):—
"with a view to effecting a reconciliation."

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Clause 1 is not directed to that issue but to the simple question posed by my noble friend, Lord Conesford, as to whether a person who, with knowledge of a matrimonial offence, has intercourse with his wife, could then be heard to say he has not forgiven her. A lot of the argument in this debate has been directed to the question of reconciliation. That really arises on Clause 2 and not on this clause at all. In view of the statements of the noble Lords, Lord Ogmore and Lord Shepherd, I thought I ought to rise to refer to that again.
Clause 1 agreed to.
Clause 2:
Relief notwithstanding temporary co-habitation with a view to reconciliation. 14 Geo. 6. c. 25; 8 & 9 Eliz. 2, c. 48.
2.—(1) For the purposes of the Matrimonial Causes Act 1950 and of the Matrimonial Proceedings (Magistrates' Courts) Act 1960, adultery or cruelty shall not be deemed to have been condoned by reason only of a continuation or resumption of cohabitation between the parties for one period not exceeding three months, or of anything done during such cohabitation, if it is proved that cohabitation was continued or resumed, as the case may be, with a view to effecting a reconciliation.
(2) In calculating for the purposes of section 1(1)(b) of the Matrimonial Causes Act 1950 the period for which the respondent has deserted the petitioner without cause, and in considering whether such desertion has been continuous, no account shall be taken of any one period (not exceeding three months) during which the parties resumed cohabitation with a view to a reconciliation.
LORD SHACKLETON: I say only that I think it is a little too curious a view to say that at this stage people know their state of mind. The noble Lord has given his personal view with the great authority that goes with his office. I find, in purely human terms, that the case is very much stronger than some have realised in legal terms.
12.33 p.m.
On Question, Whether the said Amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 15; Not-Contents, 42.

CONTENTS

Alexander of Hillsborough, E.

Denham, L.

McNair, L.

Bossom, L.

Dilhorne, L. (L. Chancellor.)

Monsell, V.

Colville of Culross, V.

Hodson, L. [Teller.]

St. Aldwyn, E.

Conesford, L.

Horsbrugh, B.

Summerskill, B. [Teller.]

Coutanche, L.

Lucas of Chilworth, L.

Willingdon, M.

NOT-CONTENTS

Atholl, D.

Ferrers, E.

Merthyr, L.

Attlee, E.

Ferrier, L.

Milverton, L.

Boston, L.

Fortescue, E.

Molson, L.

Burden, L.

Furness, V.

Moyne, L.

Canterbury, L. Abp.

Grenfell, L.

Ogmore, L.

Carnock, L.

Hanworth, V.

Sempill, L.

Champion, L.

Hawke, L. [Teller.]

Shackleton, L.

Chorley, L.

Iddesleigh, E. [Teller.]

Shepherd, L.

Craigmyle, L.

Killearn, L.

Sinha, L.

Craven, E.

Lawson, L.

Somers, L.

Crook, L.

Lilford, L.

Strang, L.

Dowding, L.

Longford, E.

Swaythling, L.

Effingham, E.

Lucan, E.

Twining, L.

Exeter, L. Bp.

Mansfield, E.

Wise, L.

Resolved in the negative, and Amendment disagreed to accordingly.

LORD HODSON LORD HODSON moved to leave out Clause 2. The noble and learned Lord said: I doubt whether it will be profitable for me to make a long speech on my second Amendment, because the objections to the trial period have already been stated by various Members of your Lordships' House who have spoken on the first Amendment. It is regarded by myself and those who think with me as an extraordinary suggestion to make it part of the scheme of things that there should be, so to speak, a period of probation wherein, in the example we have been discussing, the erring wife is admitted back on sufferance. I prefer to put it that way because, if one deals with one example only, it simplifies the matter.
If one wants to be cynical about it, one can imagine the situation where a solicitor is consulted. I know that the advocates of this reform have taken the line that it is a good idea that solicitors should not warn their clients of the

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dangers of meeting pending divorce proceedings. Incidentally, this is the only clause of the Bill which is relevant to reconciliation. In my view, Clause 1 has nothing whatever to do with it. The position, as I understand it, is that a solicitor, like everybody else, will do everything possible to promote reconciliation wherever it is possible. But if he is asked the straight question, "Am I to see my wife pending divorce procedeings or not?", a solicitor may well say to his client that he has to make up his mind whether he is going to eat his cake and have it; he cannot have it both ways.
But what will be the advice given now, if this clause should stand part of the Bill? I suppose that a solicitor's advice to the man who asks that question, would be, "You can go back to your wife if you like, but you had better tell her that she is not secure; you are only taking her back on trial." The thought was put into my mind by my noble and learned friend Lord Conesford that one gets to the most ridiculous situation. Rather as a hotelier puts up a notice in his hotel quoting a section of the Innkeepers' Act, one can visualise the husband, with the trial period of reconciliation in view, putting up in the front hall Section 2 of the Matrimonial Causes and Reconciliation Act, 1963. To introduce formality of this kind, and technicality and legality into the relations of husband and wife is to me still revolting; but whether, in view of the opinions which your Lordships have indirectly expressed, it is desirable to press my Amendment to a Division, I know not. I am in the hands of your Lordships. I should still like to move that this clause be omitted from the Bill.
Amendment moved—
Leave out Clause 2.—(Lord Hodson.)
LORD SHEPHERD: I think it was clear from the last Division that in general the Committee favour the view that efforts should be made towards reconciliation in broken marriages. On Second Reading, the noble and learned Lord, Lord Denning, said that we spent millions of pounds every year to make divorce possible, and very little on reconciliation of broken marriages.
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Obviously, the law on condonation is the biggest bar to reconciliation. The noble and learned Lord, Lord Hodson, spoke of the advice a solicitor might give to either of the parties. But I would draw your Lordships' attention to another person, the probation officer in the magistrates' courts. In the early stages of a broken marriage, usually the wife will go to the magistrates' court to obtain an order. The magistrate—rightly, I think, in the view of the Committee—will see whether it is possible to bring about a reconciliation, and he passes the matter over to the probation officer, who does all possible to bring the two together and to try to create the right atmosphere in which reconciliation would be possible.
It may be that a solicitor, to protect the position of his client, may say that she should have no meeting with her husband, but it seems to me that this is quite wrong. As the Bill stands, it would be possible for a probation officer to bring the two together in order to try for a reconciliation. I utterly reject the suggestion of my noble friend Lady Summerskill that this would be a trial marriage. The probation officer would bring about the opportunity and the place for reconciliation. There is some point in the fear that if a trial reconciliation was possible, pregnancy might arise, but this is a risk in all marriages, I suppose. I suggest to the Committee that the risk is not so great as the advantages that could arise if the Bill were to go forward as it now is.
The Royal Commission suggested a trial period of one month. I think that this is far too short a time. We have to take into account the emotional strain under which the offended party lives, and it needs a little time to forget. I think that three months is about the right time. It is an arbitrary period, but obviously one month is too short. It seems to me that the Bill as it stands would remove perhaps the greatest obstacle to the work of probation officers and those societies which do so much to improve and save those marriages which have gone on to the rocks. It will help those marriages that have been broken up by only one matrimonial offence, though perhaps not so much where there has been a lone period of unhappiness. But if the Bill can make it possible for husband and wife to be

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united after only one offence has caused the marriage to be broken up, it will be worth while. I ask the Committee to reject the Amendment.
LORD SHACKLETON: I appeal to the noble and learned Lord to withdraw his Amendment. Though naturally I bow to the opinion of the noble and learned Lord the Lord Chancellor on the legal aspect, I think that my noble friend Lady Summerskill was right to link the last clause we have been discussing with this one, because they do hang together. I will say only a few words. I have read carefully the evidence given before the Royal Commission, including that of the noble and learned Lord, Lord Hodson—and we acknowledge the very great authority that he brings to this matter. When he gave his evidence it was pointed out that the Bar Council and the then President of the Divorce Court had suggested this period. The Bill, as originally drafted, suggested one month, but at the suggestion of various organisations—the National Council of Women and most of the women's organisations supported it—it was increased to three months. It seems that the arguments in favour of this proposal are similar to those we have already had. I would therefore appeal to the noble Lord to withdraw the Amendment, but I may say that, if he feels it is still right to go on fighting, then naturally we will accept his decision.
LORD McNAIR: I sincerely hope the noble and learned Lord who moved the Amendment will not withdraw it. The issue is different from that which arose on the first Amendment, and he would, I think, make a mistake if he interpreted the vote which defeated his first Amendment as indicating that a similar vote would be given on the second. A good deal of discussion took place on the first Amendment which was really relevant to the second, and that rather confused the issue. In the light of that discussion, it is not easy to add very much, but I have given a good deal of thought to this matter and consulted a number of people, and I should like to declare my views.
I have two objections to the reconciliation scheme contained in the Bill. The first is that it is not decent, and the second is that it creates an atmosphere not conducive to reconciliation. On the first point, just consider the proposal the
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husband is making to his wife. I take the case of the husband as the injured party, because I think it is easier that way than to state it from the wife's point of view. But what exactly is the proposal that the husband is making to his erring wife? He is saying to her: "Well, I do not forgive you, but I am prepared to take you back"—in the words of the noble and learned Lord, Lord Conesford;—"without prejudice. You must realise that this resumption of cohabitation is strictly without prejudice, and I can terminate it at any moment by my own caprice and turn you out again." Do we really believe that that is the sort of proposal that a man should be able to make?
LORD SHACKLETON: The noble and learned Lord will agree that a wife might make this proposal to a husband?
LORD McNAIR: Certainly. I am stating the matter from the point of view of the husband because I think it is easier for me to understand his point of view. My second point is this. Do your Lordships really think that the atmosphere created by such a proposal, and the state of mind of the woman to whom such a proposal is made, is likely to be conducive to reconciliation? If the man really wants a reconciliation, the only thing he can do is to forgive his wife, take her back and make a fresh start. This proposal has nothing to do with forgiveness; it is miles and miles away from forgiveness. The very essence of forgiveness is that bygones shall be bygones, and the very essence of this proposal is that bygones shall not be bygones, but shall be preserved so that they can be utilised by the husband against the wife. He is really playing cat and mouse with his wife. He takes her back, and at a moment's notice he can send her away again. I do not think that is a thing he can decently do or one that is likely to mend a marriage.
Whenever we are discussing these matrimonial questions I think we are apt to be so much impressed by hard cases within our knowledge that we are inclined to seek a remedy almost at all costs. I do not think there is any type of legislation in which it is more necessary to bear in mind that when you are legislating you are not legislating for your friend So-and-so but for the whole

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community. I suggest to your Lordships that the real question we have to answer is not whether this proposal might have saved this or that marriage within our knowledge, but whether on the whole it can be said that it would be beneficial to the community.
LORD CONESFORD: The chief doubt that I feel on the present Amendment is as a result of the Division upon the last one. The Committee showed quite definitely that it was against my noble and learned friend, whom I fully supported on the first Amendment. I take the same view about the connection of the two clauses as was taken by my noble and learned friend the Lord Chancellor. I was wholly in favour of the first Amendment, which was decisively defeated, but on this second Amendment I am not so wholly in favour of my noble and learned friend. I should have thought that, had we carried the first Amendment, the logical result would have been that we might have had to amend, instead of simply deleting, this clause. This is a purely personal view. I feel that we should have had to deal with these words, "or of anything done during such cohabitation", but I should have thought that this clause might perhaps have stood with an Amendment.
I do not wish to repeat, what I hope I made clear in a short speech on the former Amendment, my strong views which have just been supported by the noble and learned Lord, Lord McNair, about what still seems to me to be the most extraordinary proposal for having intercourse with your wife without prejudice. Nevertheless, the Committee has decisively expressed the contrary view against what we said. The sole purpose of my rising is in order that we may get the guidance on this very important matter of the most reverend Primate, because in his speech just now he explained that, while he was against the first Amendment, he was strongly in favour of the present one.
THE LORD ARCHBISHOP OF CANTERBURY: If I may answer the noble Lord, I did not say I was strongly in favour. I said that the case was very much stronger.
LORD CONESFORD: I am much obliged for the correction, but I should
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like to say that I am still most anxious to have the guidance of the most reverend Primate, because he thought that, while there was a good case against the first Amendment, there was much more to be said in favour of the second—namely, the deletion of the whole clause. I am sure he has good and strong reasons for that proposition, but for the moment they escape me, and that is why I should be most grateful for his guidance.
THE LORD CHANCELLOR: Before we carry on with the debate, in view of the hour I think it might be convenient to adjourn the proceedings of the Committee until 2 o'clock. I therefore beg to move that the Committee do adjourn during pleasure.
Moved accordingly, and on Question, Motion agreed to.
[The Sitting was suspended at three minutes past one o'clock and resumed at two o'clock.]
BARONESS SUMMERSKILL: I shall not speak at any length on this clause, because when the debate opened I saw the three clauses as one and I tried to paint the whole picture as I saw it. But, as the debate has gone on, one noble Lord after another has shown quite clearly that there has been a certain amount of confusion. Somebody has said that one clause stands alone; somebody else has said that we cannot have Clause 1 without Clause 2; and somebody else has said we cannot have Clause 2 without Clause 1. Slowly I have observed that there has been this element of confusion in the minds of noble Lords on both sides, and now, of course, I am asking my noble and learned friend Lord Hodson not in any circumstances to withdraw this Amendment, because I see now how people have been confused.
On Clause 1 they have said to themselves: "Now it is possible for a man or woman to say to their partner: 'Let us start again and in the process of this reconciliation we shall have sexual intercourse'". I am very glad that the most reverend Primate has nodded. I now see the reason, why his colleague behind rose to ask me earlier what I was talking about, and why I was taking the three clauses together. I could not understand how he did not appreciate this one story; but I see now how the Lords Spiritual

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have divided the whole case; and I confess that, if I had realised that perhaps it was possible to divide the case in this way, I might have had a good deal of sympathy with them. If it meant no more than a man and woman who were separated saying to each other "Let us be reconciled in the process of sexual intercourse", we might have said to ourselves that that intercourse might be inevitable.
But I did not stop at that point. I went on to refer to Clauses 2 and 3, which are now separated. It is clear that the husband says at the time not just, "Let us be reconciled, and let us, to show how deeply we feel for each other, have sexual intercourse But then we come to Clause 2 where, in effect, we have to say the conversation is more like this: "Let us have sexual intercourse, but, of course, there can be no commitment as to a future reconciliation". And after sexual intercourse the man can say: "Well, I did not promise I had forgiven you. I did not promise to be reconciled. You were prepared to have sexual intercourse with me, but I am not committed in any way and now I demand to continue with the divorce".
I see now how the Lords Spiritual have divided this matter in their minds, and I can see now, of course, why they consider that Clauses 1 and 2 are entirely separate. In view or that, I ask those of your Lordships who in good faith, and I believe quite understandably, went into the Lobby against the first Amendment, saying. "Let these two people be reconciled, and if it means sexual intercourse following the discussion on the matter, well, is that not natural?" to reconsider the next step, when the husband says: "Reconciliation was not in my mind it was simply sexual intercourse without any commitment". I think that in these circumstances, surely, we should reconsider the whole position. I find it extremely difficult to agree with those who said that we must equate the position of the man and the woman. After all, it is the woman who risks pregnancy. We cannot really equate the two sexes to that extent. Therefore, if in the name of reconciliation sexual intercourse has taken place I think it should be said that the marriage should continue.
VISCOUNT HAWORTH: There is one point I should like to make, although
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I make it with a little hesitation. Whether or not we like to admit it, the factors considered in a divorce court often bear little relation to the true facts of the case. This may be unimportant for many purposes, but if we are to argue the merits of this Amendment and the effect it has on the parties we must recognise that in many instances collusion, admittedly not overt, is in fact present, and mutual consent is frequently the cause of the divorce. Because of the frequency of this type of case, I think we ought to do anything we possibly can to help reconciliation, where it is possible, and this Amendment clearly cuts away one of those possibilities. If two parties have decided mutually that they want a divorce, and subsequently there is a possibility that they may come together again, the fact that if they did so their ground for divorce is cut away from beneath their feet makes it far less likely they will do so. I have heard the arguments of the noble Baroness, Lady Summerskill, and I think she has considerable point there, but I think we should also weigh the point that I have made.
2.7 p.m.
THE LORD CHANCELLOR: I, for one, should not, I am afraid, agree with my noble friend as to the frequency of the type of case to which he referred. I feel that that is an unsound basis on which to found any conclusion in regard to this particular issue. It is a different issue from the one we were considering on the first Amendment. Here Clause 2 operates only if what is done during the cohabitation occurs with a view to a reconciliation: before a party can rely on this clause that must be established. But Clause 1 has nothing in it about reconciliation. Under Clause 1 the intercourse can take place without the husband having any idea of reconciliation in mind. Perhaps I was at fault in not making that sufficiently clear when I was speaking on the first Amendment. This is an entirely different clause, therefore, and the two are not really related although there is a certain connection.
The view of your Lordships, which I, for one, shared to this extent, is that great stress should be put on the need for providing opportunity for reconciliation. I think that was the general view behind what was said on the last Amendment.

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And that brings me again rather to the point to which I touched earlier in our debate—namely, whether the feeling of your Lordships is not here towards departure from the concept of establishing the commission of a matrimonial offence as a foundation for a divorce, and towards a system whereby one would seek to ascertain whether or not in reality the marriage had come to an end and had no future in it, not perhaps associated with the establishment of a matrimonial offence. I do not know whether any such system could be devised which would work satisfactorily, and I do not propose to express a view upon it. As I said at an earlier stage, I find it difficult to see how one can graft one system, or part of one system, on to the other.
I am not at all sure here that, in our desire to secure adequate opportunity for reconciliation, which we all support, we shall not be giving rise to considerable difficulty. Three months is a long time. The noble Lord, Lord Shepherd, drew attention to the emotional strain which the offended party undergoes. As he said that, I was wondering about the emotional strain the party who has offended, who has misbehaved, undergoes in not knowing. There may be a great strain on the party who has been wronged by the other spouse committing a matrimonial offence. I should think there probably will be. But during these three months of attempted reconciliation there is also a great strain upon the party who has misbehaved in not knowing whether, at the end of that time, he or she is going to be rejected and told, "No, this does not work. We must separate and you will go to the court and institute proceedings", which may be contested, in relation to past misconduct.
LORD SHEPHERD: The noble and learned Lord is assuming that the husband and wife in this case in living together do not in fact talk over their problems and that obviously they will have no indication of how the trial period (if that is the right term) is progressing.
THE LORD CHANCELLOR: I am making no assumption of that kind at all. I am merely saying there is a real possibility, that this clause contemplates, that at the end of the three months one party can say, "No, this is not working.
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Go away and start proceedings", in relation to a matrimonial offence which may have been committed a substantial time previously.
I listened with the greatest interest to the observations of Lord McNair with regard to this, and I must say that I thought there was great force in what he said about it. I think there is a real difficulty here. One does not want to put an unnecessary obstacle in the path of reconciliation; on the other hand, one does not want to prejudice, it may be seriously, the position of one of the spouses if the reconciliation does not succeed. I think the choice before your Lordships is really that: to which should preference or priority be given?
LORD SHACKLETON: May I interrupt to ask what the noble and learned Lord means by "prejudice the position of one of the spouses"? It is an interesting argument.
THE LORD CHANCELLOR: I think that if an attempt at reconciliation has broken down and, after three months effort of trying to purge her (taking the case of a woman) matrimonial offence, she has failed to do so, and in the end, as the result of this three months cohabitation, is pregnant, then the failure of the attempt at reconciliation will certainly work to her prejudice. I would have thought that could not be disputed.
LORD SHACKLETON: I am sorry to persist, but in what way to her prejudice—legally, or what exactly does he or she lose? I am not quite clear.
THE LORD CHANCELLOR: I should have thought to her prejudice in fact. There she is. Take the case that I think the noble Baroness put, of the woman who tries this for three months and then becomes pregnant, and at the end of the three months is rejected. I should certainly have said—I do not think it is worth arguing—that if that happened, that attempt at reconciliation had worked to her prejudice. That is all I am saying on that. I do not think it is a matter of law I think it is a matter of fact. I thing the choice really lies between whether the risk of that happening is something that your Lordships think right to make possible by a provision of this sort, or whether your Lordships think it right to run that kind of

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risk in a desire to afford greater opportunities for reconciliation.
I hope I have a fairly open mind on this, but again speaking personally—I am speaking entirely personally on this matter—for the reasons given by the noble Lord, Lord McNair (which I will not repeat), I do not like the proposal that husband and wife for so long a period as a quarter of a year should be able to cohabit and live together and then one of them, without perhaps putting forward any reasons at all, should just be able to say at the end of that time, at his own whim, having experienced three months' living together "I am not going on with you". I very much doubt whether their living together for that
On Question, Whether Clause 2 shall stand part of the Bill?
LORD CONESFORD: I rise only to call upon the most reverend Primate, as I did before, to indicate to us an explanation of the speech he made some time back, when he indicated to my noble and learned friend the mover of both Amendments that, while he was against the first Amendment, he thought there was much more to be said in favour of the second. I gave some reason for thinking—
LORD SHACKLETON: May I interrupt the noble Lord? With respect, without suggesting it is an abuse of the Committee, we have been debating an Amendment to leave out the clause,
period, both of them knowing that either can terminate the association, with the strains to which that knowledge must give rise, is really likely to help in the process of a real reconciliation. But again, as on the first Amendment, this is a matter on which we all must exercise our personal judgment. I will not take up any more of your Lordships' time in trying to indicate to your Lordships my personal views on this matter.
2.20 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided:—Contents, 14; Not-Contents, 37.

CONTENTS

Airedale, L.

Dilhorne, L. (L. Chancellor.)

Milverton, L.

Bossom, L.

Faringdon, L.

St. Aldwyn, E.

Conesford, L.

Hodson, L. [Teller.]

Summerskill, B. [Teller.]

Coutanche, L.

Horsbrugh, B.

Tenby, V.

Cowley, E.

McNair, L.

NOT-CONTENTS

Atholl, D.

Grenfell, L.

Morrison, L.

Attlee, E.

Hawke, L. [Teller.]

Moyne, L.

Burden, L.

Huntingdon, E.

St. Davids, V.

Canterbury, L. Abp.

Iddesleigh, E. [Teller.]

Shackleton, L.

Carnock, L.

Killearn, L.

Shepherd, L.

Clwyd, L.

Lilford, L.

Silkin, L.

Craven, E.

Longford, E.

Strang, L.

Crook, L.

Lothian, M.

Swansea, L.

Dowding, L.

Mansfield, E.

Swaythling, L.

Exeter, L. Bp.

Massereene and Ferrard, V.

Twining, L.

Ferrers, E.

Merthyr, L.

Williams, L.

Fortescue, E.

Monson, L.

Wise, L.

Furness, V.

Resolved in the negative, and Amendment disagreed to accordingly.

which was virtually the same as debating the Question whether the clause stand part. I would have thought we had passed that stage. It was not a detailed Amendment; it was to leave out the whole clause.
THE LORD ARCHBISHOP OF CANTERBURY: As the noble Lord has put to me a personal question which I can quite easily answer, perhaps I may be allowed to do so. I thought that on the first Amendment the problem was a good deal easier than on the second. The case against the first Amendment seemed to me to be overwhelmingly strong. I found the second Amendment a more difficult matter; but, having listened with great sympathy to the arguments, the case did not seem to be strong enough, and I therefore went into the Lobby against it.
LORD CONESFORD: I admire very much the way the noble Lord, Lord Shackleton, has conducted this Bill, and I have no desire to cause delay, but I would say that I should have thought, and I think that the Committee will think, and I think that the House on Report will probably think, that the most reverend Primate's original view, that there was more to be said for the second Amendment than there was for the first, was a sound view. Therefore, I very much hope that when this matter comes before the House on Report it will be found possible so to amend Clause 2 as to avoid some of the more serious consequences of amending the law in the way in which it would otherwise stand amended.
Clause 2 agreed to.
2.28 p.m.
LORD HODSON LORD HODSON moved, after Clause 2 to insert the following new clause:
Adultery not to be revived
. Adultery which has been condoned shall not be capable of being revived.
The noble and learned Lord said: The Amendment which I now move provides that adultery, when forgiven, shall not be capable of being revived. That is the law of Scotland, and it is not the law of England. If I may be forgiven, I will quote the language in which Lord Black burn stated the law of Scotland. He said that the doctrine of revival
"is strongly objected to as varying the status of married persons. On principle, a reconciliation being entered into with full knowledge of the guilt and with free and deliberate intention to forgive it, when that reconciliation is followed by living together as man and wife, the status of the couple ought to be the same and not more precarious than if there were a new marriage".
One would have thought that the law as to forgiveness would have been the same with regard to matrimonial affairs as it is in our private lives. We do not conduct our private affairs on the basis that, having forgiven an offence, we rake it up again when something else occurs to annoy us.
I think the explanation for our law is that 100 years ago, when divorce was introduced for the first time, a woman needed two offences to establish her right to a divorce—adultery and either cruelty or desertion—and the judges leant over backwards, as it were, to help the hard cases, where the woman could provide
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only the second offence, by relying upon one which had been condoned, and thus there were two offences. That situation operated for many years. In 1912 there was the Royal Commission on Divorce, which recommended that a woman or a man should be allowed to get a divorce on the ground of desertion alone or cruelty alone, and the necessity for a revival was thought by the members of the Royal Commission to have disappeared. But their prophecy that the revival doctrine would disappear was not fulfilled, and revival has reared what I regard as its ugly head.
I will give an example from my own experience. The man concerned in the case is dead. Perhaps some of his family may still be alive, but I hope that they will not be distressed by my reference to the case. It is public property; it was tried and came to your Lordships' House. The facts were very strange. The man's wife, many years ago, went on holiday abroad without him and had some kind of affair with another man. On her return home her husband, who subsequently became my client, discovered in her possession a number of incriminating letters from the other man. He went to his solicitors and the result was a reconciliation. The letters were destroyed. But, by chance, copies of those letters remained in the safe in the solicitors' office.
When the man came to see me, many years later, the position was that his wife was attacking him in the courts, and his attitude to her was: "If you attack me in the courts I will fight you with every weapon that I have". What he did was to rake up these letters, as he was entitled to do, and to make a charge of adultery against her; notwithstanding that it had all happened years ago and he could not have proved it but for finding the copies of the letters. He went on with that charge. I need not pursue that any further. The charge ultimately failed, but on other grounds his suit was successful in this House.
LORD SHACKLETON: Might I ask what he was being attacked for in the courts?
LORD HODSON: I did not want to go into detail about this. He was being charged with cruelty. He accused his wife of cruelty, too. Each charged one

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another with everything they could think of. My client kept a diary in Latin, which was irritating to his wife, in which there was the phrase "Lapidem per fenestram cavencae prosuit", the fact recorded being that she had heaved a brick through the windscreen of his car. That was that case, and to my mind it illustrates the wrongness of being able to disinter the buried hatchet. I have spoken only of adultery because there are complications in dealing with other offences. Lord Blackburn expressly excluded cruelty, as I think one must do in considering this problem, because cruelty can be looked at only as part of a complete picture. I think it is unnecessary to pursue that further—indeed, regarding desertion the situation is not quite the same. The period of desertion is not necessarily broken by sexual intercourse occurring, for example, during the three-year period.
However, I know that we are not anxious to prolong the debate unnecessarily, and I will conclude by another quotation which puts the whole argument very much better than I could. It is a quotation from a judgment of Mr. Justice Vaisey, a dissenting judgment, given about ten years ago. It does not represent the law as it has been declared by the judges; but it represents the law as I should like it to be. He said:
"With all respect to those who think otherwise, there seems to me to be something almost inhuman in a law which enables a wife or a husband to obtain, as of right, a divorce from the other in their old age, upon the ground of one single act of adultery committed by the other in the time of their far off youth and immediately condoned, but now raked up from the past upon some petty provocation insufficient in itself to be a ground for the relief so tardily sought. No Statute of Limitation applies to such a case, no plea of acquiescence or delay or unreasonableness could avail, nor could the court draw any distinction between a single act of adultery committed under exceptional temptation, and a series of such acts of a really heinous character. In the circumstances of the present time, there must be many husbands and wives who have erred and been taken back, and I cannot but think that it would be in the public interest that they should hold their forgiving spouses upon a firm rather than a precarious tenure."
I cannot put it better than that.
I should only like to say, in reply to the intervention by my noble friend Lord Shackleton, that as the law stands one does not need to have cruelty to revive
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adultery. It can be something which he and I might think is very trivial but which a judge might be persuaded was enough to revive a charge of adultery, albeit an adultery which was twenty years ago, or any time ago you like. I know there is a reported case where my noble and learned friend Lord Denning gave as his opinion that if adultery was far enough in the background, the farther it was away the more difficult it ought to be to revive it. Of course, that is good sense, but I do not think it is the law. The legal position as it stands to-day in this country—though not in Scotland, where I think they are wiser—is that a stale charge of adultery which has been condoned can be revived by a relatively trivial act. I am not now talking about the sexual aspect, but about complete condonation and forgiveness. I feel very strongly that this is wrong. I ask your Lordships to accept this Amendment.
Amendment moved—
After Clause 2, insert the said new clause.—(Lord Hodson.)
THE LORD CHANCELLOR: I hope that the noble Lord, Lord Shackleton, who is conducting this Bill through the House, will accept this Amendment. It is quite a different issue from those we have been discussing and one which, so far as I can see, was not considered in any detail by the Royal Commission, which says in paragraph 244, dealing with condonation in Scotland:
"Their concept of condonation is, generally speaking, the same as that in England. The doctrine of revival of a condoned offence, however, is not part of the law of Scotland. Once a matrimonial offence has been forgiven it cannot be used to found an action of divorce."
I think there is great force in the argument of the noble and learned Lord, Lord Hodson, that we should make this change. It would have the advantage of bringing the law of England and the law of Scotland into uniformity on this aspect. So far as I can see, the Amendment has no bearing on the matters we have previously discussed. While I do not wish to remind your Lordships again of the cogent words of Mr. Justice Vaisey in that dissenting judgment, I must say that to me they are completely persuasive, and I think that it would be an improvement of our law and really do no injury to anyone if the noble Lord, Lord Shackleton, could say that

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he is prepared to accept this Amendment.
LORD SHACKLETON: The plea of the noble and learned Lord the Lord Chancellor puts me in a difficult position as the Member in charge of this Bill. I think it is right that I should deploy the case as I see it against this new clause. I must say at once that I think it raises issues much wider than the simple merits. There are legal points involved, with which I am clearly not competent to deal. I do not know whether there are further aspects of changing the law in this way which I cannot see. I do not know why, but unfortunately the Royal Commission do not appear to have given any consideration to this aspect, or, if they did, they made no recommendation. If I am wrong on that, perhaps the noble and learned Lord the Lord Chancellor will correct me. That being so, this is, in a sense, a new proposal.
THE LORD CHANCELLOR: I think I am right in saying that there was a view that the doctrine of revival was really obsolete, and that probably explains why they did not deal with it. It is only since the Royal Commission that the fact that it is not obsolete has been established.
LORD HODSON: I think that is right. I believe that this particular problem, in the rather ugly sense that I have represented it, seldom arises; but I am anxious that it should never be able to arise.
LORD SHACKLETON: I think it is right, before we alter a Bill which has gone so far, that we should consider it. I say this, being aware that any Amendment to a Private Bill at this stage in the Session clearly endangers the Bill if it goes back to another place. I would not suggest for one moment that your Lordships should refrain from such an Amendment, but I, who am particularly concerned with the progress of the Bill, would prefer not to run that risk; and I say this knowing that I took a certain risk at an earlier stage. I should like to put this case, and it may be that the noble and learned Lord, Lord Hodson, would care to answer it. He made an eloquent plea, which I am sure all your Lordships found rather
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convincing. Thus it could be argued that people could dig back into the past, and the noble and learned Lord gave an instance in which this was done, although it appears that the revival of the particular offence was not of significant value to the man in the case.
The point is that if no further offence is committed by the man or woman who committed the original matrimonial offence they have nothing to fear. It could be argued that this would make it easier. I have even heard it said that this could be an "adulteress's charter" I would not suggest that it goes as far as that, but it could be an argument against condonation and coming together. The Lord Chancellor shakes his head. But it may well be that someone who has a definite case, who has doubts and decides to go together could never succeed in getting the further evidence. A good wife or a good husband has really nothing to fear. It is only in the case of somebody who, as I understand it, commits a matrimonial offence of some kind that the adultery can be revived.
LORD HODSONBy no means a matrimonial offence. I would not say that being late for breakfast is enough to revive a charge of adultery, but something quite trivial may be relied on.
LORD SHACKLETON: Would the noble and learned Lord specify?—because this really is the nub of the argument. If what he says is correct, a great deal of my arguments falls to the ground. As I understand it, there has to be some degree of matrimonial offence or it cannot be revived.
LORD HODSON: No. The effect of the majority decision in the Beard case, with Mr. Justice Vaisey dissenting, was that the defaulting spouse has to behave himself or herself with great care for the rest of his or her life, and if they do not behave nicely, they will get divorced. As I understand their judgments, they said that that is the law to-day; that a matrimonial offence was not a term of art, and if you do not treat your wife or your husband nicely, you may be divorced on the ground of an offence which took place long ago. That is the law which seems to me to be unsatisfactory.
LORD SHACKLETON: If in fact it is the law that no further matrimonial

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offence need be committed to revive the earlier offence, the noble and learned Lord has considerable force behind his argument; because clearly what he is saying—and this is my anxiety—is that this will not be a bar to any individual seeking reconciliation and condoning an offence. The Lord Chancellor nods, and I take it that I am correct in my interpretation, and that if we accept this clause that will be the effect of it.
THE LORD CHANCELLOR: I am not quite sure that I have followed the noble Lord. If we make the law of England conform to the law of Scotland in this respect, I cannot see myself how that is going to affect the rest of this Bill. Nor should I think it is a very controversial proposal. I omitted to say that the most reverend Primate expressed himself as convinced that the argument was overwhelming in favour of this Amendment.
LORD SHACKLETON: I am not sure we ought to take that into account. The most reverend Primate has not heard the discussion. This is a legal matter, and for me to attempt to argue with the noble and learned Lord, Lord Hodson, and the Lord Chancellor on it is clearly rather absurd.
LORD HODSON: May I intervene again? I should like to try, if I can, to satisfy the noble Lord, Lord Shackleton, that there really is no malign motive behind my activity in this connection. I do not think it has any bearing whatever on what we have been debating to-day, or on the previous stages of this Bill, where there is a true forgiveness. After all, we have been debating this morning what forgiveness amounted to, and how it ought to be established. Once you have forgiveness, then I say it ought not to be withdrawn.
LORD SHEPHERD: I think my noble friend is in the difficulty in which Ministers sitting on the Front Bench opposite often find themselves. They are responsible for a Bill, and in this case my noble friend is responsible for a Bill of which he is not the author.
THE LORD CHANCELLOR: He is taking instructions.
LORD SHEPHERD: I would not say he is taking instructions, because that is
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not possible. I think it will be recognised in all parts of the House that he has conducted the proceedings on this Bill in a most admirable way. His difficulty is accentuated by the fact that he is—I will not say opposed by, but is confronted by the noble and learned Lord, Lord Hodson, and the Lord Chancellor. It is very difficult for him, therefore, to make the case as it should be made, although I feel that he has.
I wonder whether it would not be right to adopt what Government Ministers often adopt in these circumstances, and suggest to the noble and learned Lord, Lord Hodson, that he should not press his Amendment now; that between now and the next stage he might have consultations with my noble friend, and perhaps that the Lord Chancellor would be able to put at the disposal of my noble friend Parliamentary draftsmen and advisers who could satisfy him that the words in the Amendment are not in any way contrary to what he and the author of the Bill require. I think that would be the fairest way, not only for those who are interested in this Bill but, I suggest, to the Committee, who might be forced to make a decision.
THE LORD CHANCELLOR: One appreciates the difficulty in which the noble Lord, Lord Shackleton, finds himself about this matter. We have had a discussion and, I think, an interesting and valuable debate, in which views differed, on the two earlier proposals. I would support fully the other proposals in this Bill as it now stands. We have still the opportunity before us of making what I should have thought would be a desirable change in the law of England. So far as drafting is concerned, I do not think there is any defect in the noble Lord's drafting, but we can certainly look at it. If he feels he would like further time to consider the position between now and Report stage I have no doubt that the noble and learned Lord, Lord Hodson, would willingly withdraw his Amendment to-day with a view to putting it down again on Report.
I should think it a pity if this opportunity were missed of making a further desirable change in our law, and I myself do not believe—I appreciate the views of the noble Lord—that when this proposal went before another place it would not be received with approval from both

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sides of the House. In relation to that particular risk, may I just suggest to the noble Lord that the risk is minimal as compared to the risk which was involved in an Amendment in relation to another clause?
LORD SHACKLETON: The risk is certainly minimal, but is certainly there. I greatly appreciate the intervention of my noble friend Lord Shepherd and the Lord Chancellor in this matter. It is, as my noble friend said, often the case that a Minister in charge of a Bill—and this happened only a few days ago—says, "You cannot expect me to answer a legal point like that", and adds that he will look at it again and put down an Amendment at Report stage, which in fact he does. I should appreciate it if the noble and learned Lord, Lord Hodson, would consider withdrawing the Amendment at this stage. Naturally, I should like to take further advice on this and I hope very much, in view of the strength of the argument and the support it has had, that it will be possible to get it accepted if it comes in as an agreed Amendment.
THE EARL OF MANSFIELD: I hope that the noble and learned Lord will not withdraw his Amendment and that it will be carried; and then at Report stage, if it is necessary, further Amendments to that Amendment can be considered Some of us on this side feel that it is very important that this principle should be accepted as we entirely agree with the noble Lord's Amendment.
BARONESS SUMMERSKILL: May I just say a word as one whose name is on the Amendment? I can assure the noble Lord who has spoken that there is nothing Machiavellian about this Amendment. It has no relationship at all with the other Amendments. All we are seeking to do is to ensure that a husband or wife shall not live in fear during the whole of their married life in case there should be an exposure of some misdemeanour of which they have been guilty and forgiven, they thought, many years before. All the arguments this afternoon have been designed to temper justice with mercy. Perhaps some of us have not understood each other; our lines of approach have been different; and I think there has been some confusion. But
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on this matter there should be no objection, and surely the Committee should agree.
THE LORD CHANCELLOR: I would just say this to my noble friend. I myself think that the Committee is in support, so far as I can judge the mood, of the proposal put forward by the noble and learned Lord, Lord Hodson. But I must say that, if I were in the position of the noble Lord, Lord Shackleton, and were asking for time to consider the position, I should think it rather unfortunate not to be given that opportunity; and I would ask my noble friend Lord Mansfield to consider that point. The position of the noble and learned Lord, Lord Hodson, in moving this Amendment will not be prejudiced in the least, but it would be very much better if it went back to the other House as an Amendment agreed and supported by all sides of your Lordships' House. Therefore, if the noble and learned Lord, Lord Hodson, does ask for leave to withdraw this Amendment I do ask that my noble friend Lord Mansfield will not prevent it.
LORD HODSON: In the hope that my noble friend Lord Shackleton will be able to persuade his friends to produce the result which the Lord Chancellor has envisaged, namely, an agreed Amendment at the Report stage, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clauses 3 to 6 agreed to.
House resumed: Bill reported, without amendment.

DEER BILL
2.55 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(The Earl of Mansfield.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
Clauses 1 and 2 agreed to.
Clause 3:
Unlawful weapons, etc.
3.—(1) Subject to sections 10 and 11 of this Act, if any person—
(c) uses for the purpose of injuring or killing or taking any deer—
(i) any firearm or ammunition mentioned in Schedule 2 to this Act;
he shall be guilty of an offence.
(2) Subject to the next following subsection, if any person—

(a) discharges any firearm, or projects any missile, from any mechanically propelled vehicle at any deer; or

(b) uses any mechanically propelled vehicle for the purpose of driving deer;

he shall be guilty of an offence.
LORD CROOK LORD CROOK moved, in subsection (1), after paragraph (c) to insert:
"(d) uses, for the purpose of killing any deer, any knife or similar instrument, without humane pre-stunning of the animal;".
The noble Lord said: I would remind those of your Lordships who were present at Second Reading that, when commenting upon the original presentation of this Bill, I said that deer are still classified in this country as vermin and are not protected by the Protection of Animals Act, 1911. One of the number of reasons that caused me to say that was the most recent decision reached by the magistrates at Minehead in Somerset—a decision of five magistrates holding it to be a completely legal act that the throat of a stag should be slit in public.
The episode relating to the prosecution took place last August when an Exmoor stag, which had been pursued for some time, was chased through a little village at Timberscombe into the main street; and in that street, as one would expect, was traffic. The stag slipped, fell and was pinned under a van. Two men dragged it out by the antlers and across the crowded street and into a yard by the village hall, dragging it in full view of not only adults but little children on holiday. Once it was in the yard of the village hall, first its throat was cut; then it was disembowelled; then its heart was cut out; then a bloodstained package was taken to the shopkeeper who had control of the yard: the shopkeeper who said at the time of the prosecution that he was completely taken aback.
He was completely taken aback, as I should have been, because he had no
1602
idea that these completely pagan rites were still carried out in this country by people who call themselves sportsmen. If a juvenile delinquent did this to a dog or a cat, and was subsequently brought in front of me, or any others of your Lordships who are members of magistrates' benches we should see that he was put back as being in need of restraint, or probably for a psychiatric report. Said the prosecuting counsel in this case,
"Surely it cannot be the law in this country in 1963 that you can get hold of any wild animal and despatch it in any way you like".
He went on:
"It means that a crowd of Teddy boys can go out with a flick knife and do the same thing to any deer."
My only comment on that observation of prosecuting counsel is that the difference is that the Teddy boys would never pretend that they were taking part in sport. So the case was decided by five magistrates—no protection for the deer under the Protection of Animals Act, 1911, because they were vermin.
Those of us who feel strongly on matters of this kind were delighted to learn that at last there was a Bill to be brought before this House which would do something to protect deer—so we were told. Here it is: but there is nothing in it about the thing I am talking about. That is why I move an Amendment to try to secure that, if these bloodthirsty rites must go on, there should be pre-stunning before they happen. A veterinary surgeon who gave evidence in the case to which I have referred had this to say in his principal evidence.
"I should say that this particular creature would be suffering both mentally and physically."
Asked, in examination in court, whether he would have tried to despatch a stag in this way, he said, "I would not "—and he explained why. He said:
"Had I done so, I would have been open to serious disciplinary charges from my governing body, the Royal College of Veterinary Surgeons."
He then deposed that the decent thing to do would have been to take it to a place of safety and to release it. But he said:
"Since the object of this hunt is to kill, then it should have been killed with the humane killer."
That is the sole purpose of this modest Amendment. I do not ask those who

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want to take part in these pagan blood rituals to give up their pagan sport; I ask only that the victims of it shall be stunned first. I beg to move.
Amendment moved—
Page 2, line 22, at end insert the said paragraph.—(Lord Crook.)
THE DUKE OF ATHOLL: Whilst I have every sympathy with this Amendment, I think that it might cause difficulties—certainly, I know that it would in Scotland, because we are not always 100 per cent. accurate when we shoot a deer, and it is therefore possible for a deer to be almost dead and, in order to put it out of its misery as quickly as possible, the normal practice, as one does not carry around a humane killer, is to put a knife through its jugular vein—at least, I think it is the jugular vein; at any rate, through the throat. This has been found to be the most effective and the quickest way of putting out of its agony a mortally wounded deer. I was wondering, therefore, whether the noble Lord could not somehow make this Amendment apply only to deer which had been hunted with hounds, and not to apply to deer which had been shot with a rifle.
THE EARL OF MANSFIELD: It is very much better in deer-stalking to finish off a deer by putting a bullet in its neck, rather than to use a knife.
EARL FORTESCUE: I am one of the few noble Lords here who have had a certain amount of experience of stag hunting, and I cannot help pointing out that the noble Lord, Lord Crook, has been considerably misinformed over this. I was not present at the incident at Timberscombe, which was undoubtedly regrettable, but I have made inquiries about it and I think the situation was dealt with as expeditiously and as humanely as possible. The stag in question jumped a bank, not seeing the stationary vehicle in the road, swerved in mid-air, slipped up on the tarmac and got underneath the vehicle. In doing so he broke his leg and was dispatched by the handiest means available.
There has been a great deal of misconception over this question of the knife. It has been demonstrated to the satisfaction of humanitarians that death by the
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knife is practically as instantaneous as with a humane killer. Some people seem to think that all that is happening is that the stag is having his throat cut, and they put it on the level with the inefficient suicide who opens his veins and dies a lingering death. When I was young the knife was the only method, but there were occasions when it was impossible to get in with the knife expeditiously. In consequence, guns and humane killers were introduced, and they are used extremely effectively. But there are also occasions—and I will tell you of one incident—where the knife can be extremely useful to save suffering. When a knife is applied in the right place by the expert—and it is done by the expert—there is a sudden enormous gush of blood as long as my arm, the animal falls to the ground and is dead practically on the spot. I have seen it happen on a number of occasions from quite close by, and I can honestly say that there is virtually no suffering at all.
LORD SOMERS: If I may interrupt my noble friend for a moment, I question very strongly the statement that death is instantaneous and that the animal does not remain conscious for a considerable time.
EARL FORTESCUE: It depends what is meant by "a considerable time" and any estimate one makes does not greatly affect the question.
The incident which I am going to recite to your Lordships happened on April 15, 1924. We had a hunt over nearly 20 miles of country, and the hunt was petering out, quite close to my home. My father and I had got on the homeward side of what is generally known as a gulley when the stag jumped up close to where we were standing. The hounds got round the stag almost immediately. My father jumped off his horse (it was the eve of his seventieth birthday; that is how I remember the date) went up to the deer, took his pocket-knife out of his waistcoat pocket, applied it in the right place and the stag dropped dead. If he had not had a knife, or if he could not have used it until a humane killer or stunning instrument had arrived, the stag would have been at bay among the hounds for at least ten minutes before anyone else could have got there. I was about 100 yards away at the time, and by the

1605
time I got there the stag—with all due respect to the noble Lord, Lord Somers—was dead. That case convinced me that pre-stunning, or the necessity of using a humane killer in preference to anything else, is entirely beside the point.
3.10 p.m.
BARONESS SUMMERSKILL: I will apply myself simply to the technical detail of killing, because I must confess that I am a little ashamed that we are discussing this at all in the twentieth century. It is not my term when I say that so many people in this country regard this not as a sport but as a decadent pastime. I recall that the noble Lord, Lord Somers, initiated a debate last year on the question of pre-stunning of animals in the slaughterhouse. We had a fairly wide discussion, and noble Lords with a great deal of knowledge, and I am sure with knowledge as wide as the noble Earl who has just spoken, spoke on the question of pre-stunning. The feeling in the House was that the slaughter of animals without pre-stunning should be prohibited. Of course, it is prohibited with the exception of those animals which are killed by the Jewish method.
We had a very interesting debate and it was quite clear that the sympathy of the House was with the noble Lord, Lord Somers, whom I supported. But the Leader of the House appealed to the House at the end of the debate, and said that if we went into the Division Lobby and the Motion was passed, it would be regarded by the Jewish population of this country as anti-Semetic. I remind the House of this because on this very point we had a discussion, and I think the feeling of the House was certainly not sympathetic with the point of view just put by the noble Earl.
VISCOUNT MASSEREENE AND FERRARD: May I point out to the noble Lord, Lord Crook, and the noble Baroness, Lady Summerskill, that in paragraph 227 of their Report the Scott Henderson Committee, which was set up by a Socialist Government, said:
"While we think it is desirable that a humane killer or gun should be used whenever possible, we do not think it would be right to Insist that this should be done in all circumstances."
The noble Lord, Lord Crook, gave an instance which had great prominence in
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the Press. He referred to a stag's throat being cut. But I should point out to your Lordships that, wherever possible, the pack of hounds which hunts wild red deer stag—the Devon and Somerset—always uses the humane killer or the gun. For instance, the Master, the Huntsmen and the Whip all carry humane killers. You also have a mounted follower with a gun, and somebody in a car—sometimes two people in two cars—with guns.
But the trouble is that it sometimes happens—some of your Lordships may have had practical experience of this matter—that it is dangerous, from the point of view of the public, to use a gun. As to the humane killer, that can always be used in a slaughterhouse because the animal is held and is passive. To use a humane killer you must have the animal completely passive, because you must hold the instrument to the head. But if you have a stag at bay it is not necessarily passive, and whereas you can plunge a knife into it and cut the jugular vein extremely quickly if you are expert, it is sometimes very difficult to use a humane killer. You could use it if you got half a dozen strong men—you would probably need more; perhaps eight—to hold the stag, but that is extremely cruel because the animal is panicked by such treatment. So there are instances, as the Scott Henderson Committee pointed out, where it is more humane to use a knife.
I personally would not have mentioned this, but as the noble Baroness, I ady Summerskill, has brought it up I would also point out that throughout this country in licensed slaughterhouses the knife is used, for religious reasons, to kill tens of thousands of cattle and sheep. It is of no interest to the animal being killed whether he is going to be eaten by Mohammedan or Jew. You cannot have it both ways. On humanitarian grounds, I really cannot accept this Amendment. I am quite sure that if the noble Lord, Lord Crook, asks veterinary opinion—perhaps he has already done so—they would tell him that, provided the knife is properly used, the animal loses consciousness in two or three seconds. Of course, it has convulsions, but it is unconscious. It is on humanitarian grounds that I really must resist this Amendment, because, as I have pointed out, there are instances

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in hunting the wild stag where it is quite impossible to use the humane killer and where it is too dangerous, from the point of view of the public, to use a gun.
LORD CROOK: If no other Member of the Committee desires to speak, I should certainly like to refer to some of the statements that have been made First of all, may I thank the noble Duke, the Duke of Atholl, for what in many ways was support for me? We all know—indeed, I said it on Second Reading—that Scotland already has its Act. Scotland is a very different place from the point of view of stag and deer. It has a problem of its own, and that problem is dealt with excellently, so tar as I know, under the present Act. I do not think I could have made the speech I made about carrying humane killers had this been something to do with Scotland, because Scotland has its own, good arrangements.
THE DUKE OF ATHOLL: Could I just interrupt the noble Lord to point out that, although I agree deer stalking is not common in England, it is, in fact, practised, as in Scotland, in certain parts of the Lake District; and presumably they would be covered by this Bill?
LORD CROOK: Yes, I have no doubt, and there is an Amendment that I shall be moving later on which deals, even it only in an indirect way, with the very different conditions which exist among those who take part in stalking in England. Indeed, I referred during the Second Reading debate to the way in which this has become a new status symbol in the North-West part of England—to go out for eight shillings an hour and take part in dealing with stag. But I do not want to argue about Scotland, and I should like to stop what I want to stop in England. When I said that the noble Duke helped me when he referred to what happens in Scotland, it was because in Scotland they no longer practise the wild kind of hunting by hounds that was referred to by the noble Viscount who was defending the Devon and Somerset Stag Hunt—and let the noble Viscount be clear that he was quite wrong when he said that I was misinformed. As a magistrate myself, I take great care to
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see that when I quote anything here I am quoting from fact. I was quoting from the report of the proceedings in the magistrates' court at Minehead: so much so that I had carefully prepared what I had to say, and everything I quoted is in my notes marked as a quote, ready to be handed to the Editor of Hansard. So there should be no dubiety about the question of my being misinformed. I could go on to talk about the disgraceful thing that happened in the village of Timberscombe. First of all there was the statement to women, "Get out of the way. We've shot it. What are you worrying about?" Then it was said, "Of course we've got a humane killer nearby. We will be bringing it."
Then I should like to take up the reference which the noble Viscount, who is sponsor of this Bill here has made, that the proper use of a knife is all right. Let us then have a certainty that there will be people capable of using the knife. If the noble Earl who defends the Devon and Somerset Hounds requires it, I have here the brochure, with complete details of every run of theirs over a period of time, showing the complete inability of people to do the job properly, with instances of stags who were not able to be killed. I have the record from witnesses where the only knife available, and which was found after some time, was an old Army clasp knife with which they eventually killed it. I have the record here of a situation where time passed before anyone could find a knife; nobody had bothered to obtain a humane killer or knife. That is the kind of condition in this allegedly civilised country that I am dealing with. I am trying to see that we do have the right conditions here. I am not prepared voluntarily to see this Bill go through in the form in which it is.
EARL FORTESCUE: I may say that the hunt servants invariably carry a knife and so do a good many of the other people.
LORD CROOK: No one objects to that statement. I accept it. I am referring to where there were no hunt servants and where the dogs or hounds were doing their bit in chasing and no one was around. I have been there myself. I have wandered towards the Quantocks. I have seen the poor exhausted stag and four hounds dragging themselves across the road with torn legs, not knowing

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where life was for them also; and we humans were pushing them into it. Some of the things that have been said here completely astonish me. But, the noble Viscount said that if they had not cut its throat it would have been at bay in front of the hounds. Very well; let him follow me. Let him stop the hounds as well as the knives.
VISCOUNT MASSEREENE AND FERRARD: Would the noble Lord completely dispute the evidence of the Scott Henderson Committee; because they said, as I pointed out, that the knife is necessary in certain instances?
LORD CROOK: I would not try to dispute the evidence of any Committee that presented its advice to your Lordships' House. Equally I would not try to dispute things about which I know.
BARONESS SUMMERSKILL: Could I ask the noble Earl who has just sat down, and who mentioned that all the hunt servants had knives, whether they are taught what are the surface markings of the jugular vein? By "surface markings" I mean the course of the vein. Who teaches them this piece of anatomy?
Resolved in the affirmative, and Amendment agreed to accordingly.
3.32 p.m.
LORD CROOK LORD CROOK moved, in subsection (2), after paragraph (b) to insert:
"(c) holds captive, and subsequently liberates, deer of any species and description, for the purpose of hunting with hounds;".
The noble Lord said: I rise to move an Amendment to produce an additional offence, by adding
"holds captive, and subsequently liberates, deer of any species and description, for the purpose of hunting with hounds."
EARL FORTESCUE: I could not quite hear the noble Baroness.
BARONESS SUMMERSKILL: It was suggested that the hunt servants all carry knives and that the animal will be despatched quickly. Who teaches the hunt servants the necessary elementary anatomy? Have they knowledge of the surface markings of the jugular vein so that they can despatch the animal? Who instructs them?
EARL FORTESCUE: There is no officially appointed instructor, but it is not very difficult to acquire that knowledge by observation.
BARONESS SUMMERSKILL: I must tell the noble Earl that medical students take quite a long time to acquire a knowledge of the surface markings of these vessels, and the average medical student is not unintelligent.
3.25 p.m.
On Question, Whether the said Amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents 23; Not-Contents, 16.

CONTENTS

Airedale, L.

Hanworth, V.

Rusholme, L.

Attlee, E.

Henderson, L.

Shepherd, L.

Auckland, L.

Huntingdon, E.

Silkin, L.

Boston, L.

Lindgren, L. [Teller.]

Somers, L.

Burden, L. [Teller.]

Mansfield, E.

Summerskill, B.

Coutanche, L.

Meston, L.

Williams, L.

Crook, L.

Morrison, L.

Wise, L.

Dowding, L.

Robertson of Oakridge, L.

NOT-CONTENTS

Ashton of Hyde, L.

Furness, V.

Monson, L.

Atholl, D.

Lilford, L.

St. Aldwyn, E.

Clwyd, L.

Lothian, M.

Swansea, L.

Denham, L.

McCorquodale of Newton, L.

Twining, L.

Ebbisham, L.

Massereene and Ferrard, V. [Teller.]

Willingdon, M.

Fortescue, E. [Teller.]

This covers the scandal of carted deer, to which I referred on the Second Reading debate. When I then referred to the matter, the noble Viscount, Lord Massereene and Ferrard, who is in charge of the Bill, was good enough to say that there is only one hunt remaining. He made it clear that the Mid-Kent Hunt carted deer has ceased. That hunt took one deer for each day's hunt, transferring it in a miniature horsebox. Cruel though the Mid-Kent Hunt procedure was, in my view, it was mild compared with the only one that still remains in this country today, that of the Norwich Stag Hunt.
In that one small hunt, deer bred at Winfarthing are carted in crates and then released to be hunted with hounds. The object of this form of deer hunting—they use hinds, and they also use castrated stags, because they have no antlers—is to recapture the hunted animal when it can run no further so that it can be used again and again. They recrate it, and they then take it off to be kept again in captivity until they choose to hunt it another day. It will be hunted repeatedly in rota with other deer, unless it is so fortunate as to come to grief in the chase and be killed by accident, or until it becomes too chronically overwrought to give what is called "good sport". What do I mean by "overwrought"? Just what was meant by the master of the carted stag hunt when interviewed by an inspector from the Royal Society for the Prevention of Cruelty to Animals about the deer in question. Said the master:
"When they have been hunted a few times they get so nervous that they will run into anyone or any place."
May I keep your Lordships for two minutes to tell you how, if you had the chance, you would see this kind of proceeding carried on? You take two deer, and you put each of them into a separate crate—crush them into two narrow crates. The two narrow crates are then put on to a trailer drawn by a motor vehicle. The hounds are allowed to sniff round the crate and get the scent. The stag is then released. The terrified and bewildered creature then makes off. Along come the hounds and all these people who demean the word "sportsmen", and away they go. You may ask what happens to the empty crate and the other full crate. They are both on the trailer behind the car. They are driven round the country lanes. The driver has only one charge upon him, and that is that he is to keep as near as he can to the hunt, never mind what bad lanes he has to go down, because he has a part to play in this valiant sport. He has to be near in case the deer which has been released comes to grief, or is unable to run any more from sheer exhaustion. If the sportsmen still feel that they have not had enough, they will expect him to be there to crate the terrified, exhausted animal, and release the other, after he has
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been smelled for his scent, so that the rest of the day's sport may go on.
I have gone to the trouble of getting an eye-witness's account of this. The eye-witness said:
"When the car, coming the other way, had to be passed in narrow lanes, the trailer was drawn up roadside banks and across the gulleys in them, the crate with the deer in it rocking to and fro, and on one occasion, rising from the trailer and landing on it again with a sickening thud."
The persons who followed on our behalf on this occasion were able to climb on the trailer and have a look. On this occasion the sportsmen had cornered the deer in a pond. Soaking wet and exhausted, it was dragged out and put into the empty crate; and out of the other crate came the other deer, also wet and exhausted, not through being in a pond, but through the terror and exhaustion which it had suffered on the trailer. In that state it, in turn, took its part to be a central figure in Englishmen's sport.
My Lords, what kind of people are these? I understand that some farmers are banning the hunt from their land, some because of cruelty and others because of damage resulting to crops. I could not care which ground it was your Lordships accepted to-day—whether you want to safeguard the agriculture of Britain or whether, like me, you want to stop the most un-English sport ever permitted. I only ask you to agree to this Amendment, because I deny the right of 100 people in the Norwich area to run staghounds that sully the good name of Britain and British sportsmanship. I beg to move.
Amendment moved—
Page 2, line 28, at end insert the said paragraph.—(Lord Crook.)
3.40 p.m.
VISCOUNT MASSEREENE AND FERRARD: I have sympathy with the noble Lord, Lord Crook, because he is obviously moved by kindness. Of course, kindness is a noble motive, a noble sentiment. But I rather think that the noble Lord has obtained his experience of carted stag hunting from some of cur Sunday newspapers. I would point out to the noble Lord that these carted deer, being wild animals that have become domesticated, come under the Protection of Animals Act, 1911, Section 1(3)(b), and it is an offence to

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hunt them if the provisions of that section are not fulfilled. That Act is quite a strong one.
I would also point out that in carted deer hunting the deer are in a field, beside the kennels, and kept just like cows. The hounds are often taken out for exercise through the deer. The hounds pay no attention to the deer, and the deer pay no attention to the hounds. I have seen a deer brought to a meet and taken out of his deer-cart or horse-box, and as, I suppose, he did not feel like a hunt, he just grazed and would nor go lolloping away. It was his off-day, or he was bored or something, and so was just taken home again. The hounds and the deer really appear to come to an understanding about this business. The deer does not run until he is utterly exhausted, but will go and stand in a pond or in a field, and the hounds never touch him; they know the game too well. Then a deer-cart comes along and the stag or hind goes into it and back home.
LORD SHEPHERD: May I take it from the noble Lord that he believes the deer understands the purpose for which it is being bred?
VISCOUNT MASSEREENE AND FERRARD: The deer, living beside the hounds, gets so used to them that he does not get panic-stricken. You can see that for yourself.
LORD CROOK: Is the noble Lord really persisting in that amazing statement he made at Second Reading that deer actually get to like it?
VISCOUNT MASSEREENE AND FERRARD: I did not say that he likes it.
LORD CROOK: The noble Lord is on record as saying that.
VISCOUNT MASSEREENE AND FERRARD: He enjoys having a nice feed at the end of it. But, as I say, he sometimes will not run at all; and he then goes home and, presumably, does not get a feed.
I personally do not agree with carted stag hunting, but not for the same reasons as the noble Lord, Lord Crook. I do not think it is cruel. The object of this Bill is to prevent the indiscriminate shooting, killing and maiming of deer and I have seen people authorised by a
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State Department, the Ministry of Agriculture, Fisheries and Food, next to my estate in Scotland embark on what I would consider extremely ruthless killing of deer. However, that is beside the point. If the noble Lord wishes to stop carted deer-hunting—and, as I pointed out on Second Reading, there is now only one pack, and that will probably come to an end on its own accord—surely the proper procedure would be for him to bring in a Bill for this purpose, because I do not see that it comes under this Bill. This Bill has nothing to do with hunting.
LORD SHEPHERD: May I suggest that the noble Lord refers to the Long Title of the Bill which includes the words
"… to restrict the use of vehicles in connection with the killing and taking of deer;".
I should have thought that the Amendment clearly came within the Long Title of the Bill.
VISCOUNT MASSEREENE AND FERRARD: In the case of carted stag-hunting, the deer is not killed. You are not capturing a wild animal; you have a semi-domesticated animal, and it comes under the Protection of Animals Act, 1911. If I may quote the Scott Henderson Report again, it says, at paragraph 239:
"We are not satisfied from the evidence which we have received that there is a sufficient degree of cruelty in this sport to justify legislation to prohibit it."
I personally do not think this form of hunting serves any useful purpose. If you want a gallop you can get just as much fun from having a drag, so I personally do not agree with it—but not on the ground of cruelty; I do not say it is cruel compared to snaring deer, wounding them or killing hinds in calf. You cannot compare it with that. Therefore I am resisting this Amendment because I do not think it ought to be brought up in this Bill.
BARONESS SUMMERSKILL: On listening to the noble Lord, at least it is a little comforting to know that perhaps he has been shamed this afternoon into saying he does not agree with this, and he has said (and Hansard will prove it to-morrow) that he could have as much fun—fun!—in galloping after a drag. I am very glad to hear that, and I hope he will use the power he has in the circles

1615
in which he moves in order that this decadent pastime should be banned. I must confess I find it very difficult to understand why men and women in privileged positions should engage in a pastime which is debasing for all those concerned.
The last Amendment was successful but there were those who went into the Not-Content Lobby—and I can understand this point—because they said to themselves, "Here is a deer which is injured, and perhaps the quickest way, after all, is to take out a knife and try to despatch it". And they opposed our Amendment when we asked for humane killing because they thought it was more practical to despatch it. This is entirely different. This is premeditated cruelty. On the last Amendment there was cruelty which was committed during, as the apologists say, the heat of the moment. This is absolutely premeditated. Deer are put into a cart and then released for the benefit, not of the sportsman, but of the killers, to chase and kill. The noble Viscount comes to this House and says, "But what a compensation these deer have! They are given a good meal at the end of it". If these deer really enjoy it, why do they run at such a rate, desperate to try to save themselves from the hounds? Why do they not slow down a bit?
VISCOUNT MASSEREENE AND FERRARD: They do not always run, as I pointed out; they frequently will not run at all. They do not run at a desperate rate, they just canter. I personally do not engage in this form of hunting. But the deer do not run at a desperate rate.
BARONESS SUMMERSKILL: The noble Viscount almost takes my weapon from me when he says he does not do it. I congratulate him for having the moral courage. It requires more courage of the right sort, moral courage, to denounce this than to get on a horse and chase these defenceless animals. I congratulate him for having the moral courage to stand here and say he does not do it and does not like it and does not think it should be done. I can only say, on this occasion, surely he should not vote against this Amendment but should accept what my noble friend has moved, because this is in the interest of humanity.
3.50 p.m.
LORD WISE: I think I should rise at this moment, coming from Norfolk and having always, as a countryman, been interested in rural sports. I hope that noble Lords who are present here to-day will support and pass this Amendment. The noble Viscount who has opposed it at the moment suggested that we might put it into another Bill. But it is appropriate to this particular Bill, and I hope that we shall pass it and so cut out a sport which I believe is not one of which Norfolk folk can be proud. I am glad to hear that there is only one pack of stag hounds in the country. There used to be a pack in Suffolk; but I am glad to say that it has gone.
In case noble Lords may misunderstand my rising to object to this particular sport, I may say that our own foxhounds hunt my own lands at least five or six times a year, and they draw my woods. I do not in any way object to foxhunting, though I do not take any part in it, and I do not take any part in shooting expeditions. But I am bitterly opposed to the actions of the Norwich or Norfolk Stag Hounds. I think I voice Norfolk opinion when I say that. There is a tremendous difference between the staghounds and the foxhounds in Norfolk, and I hope, therefore, that noble Lords who are here this afternoon will accept this Amendment, in order that we may cut this particular so-called sport from our own county and from England as well.
EARL FORTESCUE: My experience of carted deer hunting is not recent and it is not extensive. I have been out only once and the stag has not come my way. But I am against this Amendment, although I do not feel too strongly about it. From what the noble Lord, Lord Wise, has said, if public opinion in Norfolk is as strong as we are led to believe against the Norwich staghounds, I cannot believe that they will go on for long. However, I do not think the question of cruelty comes into this at all. My own recollection is of some years ago. When I was living near Windsor I was taken over to see the Queen's Buck-hounds. It was a nice summer's day. We drove across Windsor Park. We got to the kennels, and we were told that the hounds were being walked out to exercise. We were asked whether we

1617
should like to look at the deer meantime. We went to look at the deer. They did not pay much attention to us, but went on grazing. A few minutes later the gate at the bottom of the paddock opened and the hunt servants walked the hounds in. The hounds paid no attention whatever to the deer. The deer went on feeding at about the distance of the length of this Chamber.
I was rather interested in this, and a few months later I and a friend hired horses and went to the meet of the Queen's Buckhounds at Maidenhead Thicket. The whole show was beautifully turned out. The master was a most magnificent-looking man on a well-bred horse—I think I am right in saying that it was the late Lord Ribblesdale. The deer-cart was produced on some slightly rising ground, the door was opened, the deer got quietly out, walked about 20 yards, sniffed the air, and went away down-wind. He jumped the gate quite neatly, and off he went. He was given about ten or fifteen minutes start, and then we started out. We ran on merrily for a few miles, but, it having been a wet season, those Thames Valley ploughs held the horses and they began to "blow" a bit. I remember that I took one heavy fall over a rail. The stag seemed to take the same view as we did. He took to the road. Then, as he came to traffic, he circumvented it and carried on down the road.
After a mile or two something turned him off the road, and he went into a field where there happened to be a pond. He jumped straight into the pond and stayed there. The hounds came up, did not go near the stag, had a drink out of the pond and lay down. We arrived, we got off our horses, we had our sandwiches; and then, about a quarter of an hour later, along came the deer-cart drawn by two horses. The man got off the box, went to the pond about 20 yards away, and addressed the stag as follows, "Come on, old man". The stag got out of the pond, gave himself a shake and walked, unurged, into the box, where he was given a feed of hay and went off quietly home. We soon followed.
I did not think that it was a very exciting day's sport but the humanity of it impressed me. As I lay in my bath that evening (I may say that at the time
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I was a boy at Eton, and I had got somebody to answer for me, so that I could get away) I wondered whether I was not running a greater risk of my skin being injured by the birch of Dr. Lyttelton than the stag had been of having any injury whatsoever. I came to the conclusion that I was probably more frightened than the stag. So much so that I made no effort to go out with the buckhounds again. If your Lordships will bear with me a few moments more, there was a moral to this story. Dr. Lyttelton was a very strong disciplinarian, and wielded the birch as well as he wielded a cricket bat. He had been a friend of my father at Cambridge, and when they met some time afterwards he told my father that he had heard about this occurrence but thought it a bit late to do anything about it. But he said something to my father which I have always remembered: "For effective discipline you have to know when to keep a blind eye". I have remembered that remark all my life and it has been extremely useful to me.
LORD SHEPHERD: It is a tragedy to me that we have to discuss this Amendment here this afternoon. In spite of the comments of the noble Earl who has just sat down, there is undisputed evidence of cases of cruelty. My noble friend Lord Crook spoke from his own personal experience, and there is undoubtedly independent evidence to support him. We are not dealing with a wild animal. If the deer were wild it would be bad enough that he should be crated, carried to a countryside of which he has no experience and no local knowledge, and then let loose to be hunted. But as the noble Viscount, Lord Massereene and Ferrard, has said, we are dealing with domesticated animals, animals that have been brought up to accept other animals and human beings around. But then you take the stag out of his environment, you put him in a crate, you put him in a lorry, you transport him across the country, you let him loose and then animals and people chase him.
VISCOUNT MASSEREENE AND FERRARD: You do not take him to a strange country. He is perfectly aware of the country which he is released in, and he generally runs the same line.
LORD SHEPHERD: My understanding is that he is carted, and in some cases quite some distance. You release him, as I have said, and the animal is hunted. This to me is utterly repugnant. I myself have never been a sympathiser with blood sports. I can, however, see that there may be a case for adopting a method of hunting to get rid of foxes: I can see that there is a case, although frankly I would not accept it. But I cannot see in any respect that there can be a case for the hunting of what is a domesticated animal. I believe that this is utterly repugnant to this House and to this country. It is possible for this Amendment to be included in this Bill, and I would suggest that this afternoon this Committee should insist that it is included.
BARONESS SUMMERSKILL: Could I just ask the noble Viscount one question? I take it that it is of course possible for these hinds to be pregnant?
VISCOUNT MASSEREENE AND FERRARD: Quite impossible.
BARONESS SUMMERSKILL: Are they all examined, then, before they are
Resolved in the affirmative, and Amendment agreed to accordingly.
LORD CROOK: I rise to draw attention to the fact that, in the Division that has just taken place, there voted only 31 Members of your Lordships' House, and that, to my knowledge of what is going to happen, some of my noble friends and some noble Lords on the other side of the House are leaving to catch trains, this being an unusual Friday and already past four o'clock. I
put in? Is there an examination before they are put in the cart? Who decides? Does a veterinary surgeon report on each hind, that it is not pregnant?
VISCOUNT MASSEREENE AND FERRARD: I have been informed that a pregnant hind is never hunted.
BARONESS SUMMERSKILL: It is very difficult to tell in the first stages even with a human being. I think that it is quite easy with domestic hinds to include one in the first stage of pregnancy.
VISCOUNT MASSEREENE AND FERRARD: No, because the hinds are kept separate from the stags.
LORD CROOK: I do not think I have anything to reply to. I want to add only one thing. I congratulate the noble Earl on his appetite for the sandwiches, and I invite the Committee to go to a Division.
4.4 p.m.
On Question, Whether the said Amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 24; Not-Contents, 7.

CONTENTS

Airedale, L.

Hanworth, V.

Morrison, L.

Auckland, L.

Henderson, L.

Robertson of Oakridge, L.

Boston, L.

Huntingdon, E.

Shepherd, L.

Burden, L. [Teller.]

Lilford, L.

Silkin, L.

Clwyd, L.

Lindgren, L. [Teller.]

Somers, L.

Coutanche, L.

Mansfield, E.

Summerskill, B.

Crook, L.

Merthyr, L.

Williams, L.

Dowding, L.

Meston, L.

Wise, L.

NOT-CONTENTS

Denham, L.

Fortescue, E. [Teller.]

Massereene and Ferrard, V [Teller.]

Exeter, M.

Lothian, M.

Ferrers, E.

Swansea, L.

therefore think it only right, in the interests of the Bill, of the noble Viscount, Lord Massereene and Ferrard, and of myself, and since I am about to move another Amendment on which I shall want a Division, which I do not think will possibly produce enough Members of your Lordships' House, to suggest that this Committee stage be adjourned.
VISCOUNT MASSEREENE AND FERRARD: I agree with what the noble Lord has just said, that this Committee

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stage ought to be adjourned. I therefore beg to move that the House do now resume.
Moved, That the House do now resume.—(Viscount Massereene and Ferrard.)
On Question, Motion agreed to, and House resumed accordingly.

PUBLIC LAVATORIES (TURNSTILES) BILL
House in Committee (according to Order).
House resumed; Bill reported without amendment; Report received.

SALE OF DEAD WILD GEESE PROHIBITION BILL [H.L.]
4.12 p.m.
Order of the Day for the Third Reading read.
THE EARL OF MANSFIELD: My Lords, I beg to move that this Bill be now read a third time, and in doing so I wish to thank your Lordships for its speedy and uninterrupted progress.
Moved, That the Bill be now read 3a.—(The Earl of Mansfield.)
On Question, Bill read 3a, and passed, and sent to the Commons.
House adjourned at fourteen minutes past four o'clock.