HL Deb 19 July 1963 vol 252 cc419-30

12.15 p.m.

Report of Amendments received (according to Order).

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: My Lords, this is no new Amendment. It was moved last Friday, at the Committee stage, and I think it speaks for itself. At the Committee stage the Amendment received support from the Committee, and no one spoke against it. I think the most reverend Primate was here, and although he did not speak on this Amendment then, he had spoken in its favour in his earlier speech. The Amendment was withdrawn, on the suggestion of the noble and learned Lord the Lord Chancellor, in order that my noble friend Lord Shackleton, who is in charge of the Bill, should have an opportunity of considering the matter with his friends. The noble Lord, having considered the matter, has been good enough to cooperate, by adding his name to the Amendment, so that it is now agreed. In these circumstances, I do not think it necessary for me to explain the Amendment further. It brings the law of England into line with the law of Scotland, and it seems to me, as I said earlier, to be something that speaks for itself: that this particular kind of hatchet which has been buried should remain buried. May I conclude by again thanking my noble friend Lord Shackleton for his assitsance in bringing this matter to what I hope is a happy conclusion? I beg to move.

Amendment moved— After Clause 2, insert the said new clause.—(Lord Hodson.)

LORD SHACKLETON

My Lords, I am grateful to my noble and learned friend Lord Hodson. I was confronted last Friday with a slight difficulty, in not fully knowing what the import of the Amendment was; and I confess that I suspected a slightly sinister intention—although I should not be inclined to attribute any sinister intention to my noble and learned friend. His courtesy at all stages has been such, and obviously the knowledge that he brings to these matters is such, as to commend any Amendment—at least this Amendment: luckily the others he had down were less effective—that he moves. I have consulted the sponsors of the Bill. Without being tremendously enthusiastic about it and without being completely wedded to the idea of adopting Scots law, which I am told in other respects, particularly in regard to alimony and maintenance, is far behind the law of this country, I can say that I appreciate the force of my noble and learned friend's argument. Whatever Canon Law may say about condonation or forgiveness, he believes in forgiveness; and if this new clause helps towards that end, then I am happy to support him; and that is why I have joined my name to the Amendment, in the hope that another place will accept it. I should like only to add that I am grateful to the noble and learned Lord the Lord Chancellor for helping us to secure time to consider this matter more fully.

On Question, Amendment agreed to.

Clause 6 [Short title, construction and extent]:

THE LORD CHANCELLOR moved to omit from the Title of the Bill "and Reconciliation".

The noble and learned Lord said: My Lords I hope that this Amendment will not be regarded as of any sinister significance by reason of the fact that it resembles in content an Amendment previously on the Marshalled List in the name of the noble and learned Lord, Lord Hodson. I think that the earlier Amendment was put down because in the noble and learned Lord's mind it was linked with the Amendments which were then under consideration, and which were rejected by your Lordships. I am not moving this Amendment on any ground in relation to that: there is as I say, no sinister intent.

The Bill is a Bill, as your Lordships will see if you look at its content, which deals with matrimonial causes, and not with anything else. I quite agree that Clause 2 contains the words, "with a view to a reconciliation;" but all the other clauses—and, indeed, that clause also—deal with matrimonial causes. I submit to your Lordships that as a matter of principle the Short Title of a Bill ought to indicate the subject matter of the Bill, rather than the motives which prompted its sponsors. The Amendment I am moving makes not the slightest difference to the content or effect of the Bill, but as a matter of precedent we have always sought to secure that the Short Title indicates as shortly as possible the subject matter of the Bill. Beyond doubt, here the subject matter is matrimonial causes.

There is a further reason why I am asking your Lordships, and the noble Lord in charge of the Bill, to agree to this Amendment. I think I am right in saying that all the earlier Acts dealing with this particular topic are described as Matrimonial Causes Acts. I do not suppose for one moment that this is the last Act of this kind which will be passed through Parliament. When you come to cite a number of Acts in a series, it is very convenient to have them all bearing the same name. You can then refer to them as the Matrimonial Causes Acts from, say, 1900 to 1963 inclusive. It becomes difficult, however, if in the course of a series of Acts, there is one that has a different Title. Also, from the point of view of practitioners, there is a great advantage in having the shortest possible Title.

Those are the reasons why I am moving this Amendment. There is nothing more in it that that, but I ask the noble Lord to consider it very seriously. I can assure him that the Amendment is moved merely because of the desire to keep some degree of uniformity in our Statute Book; to keep Short Titles short, and to assist those who constantly have to refer to the Acts in the course of their practice. I recognise full well that one of the main objects of the promoters in moving this Bill, when it was initially introduced, was to make it easier to secure reconciliation. In the course of the speeches I have made on the passage of this Bill I have, as your Lordships are aware, supported that object. The Amendment I am moving does not mean any criticism of that object or detract from the motives of the promoters of the Bill. This is a technical Amendment, moved for technical reasons, and it is for that reason that I beg to move that we leave out from the Short Title the words, "and Reconciliation".

Amendment moved— Page 3, line 34, leave out ("and Reconciliation.")—(The Lord Chancellor.)

LORD SHACKLETON

My Lords, I should have liked to accede to the plea of the noble and learned Lord the Lord Chancellor at this stage of the Bill; but frankly I cannot do so. Let me say straight away that I entirely accept the reasons behind this Amendment as being connected purely with technicalities and making no difference to the actual operation of the Bill. But this is a reconciliation Bill. It was intended as a reconciliation Bill, and although it "mopped up" certain other matters on the way, it has even been known popularly in the Press as the "Kiss and make up Bill". The noble and learned Lord wishes to call it the Matrimonial Causes Bill, which is rather like calling it another Divorce Bill. I hope that if this means a change in the list of Titles, it also means a change in our approach to these matters.

There were issues at an earlier stage on which the House disagreed quite strongly, over the question of a different approach to divorce. But there is one issue on which I am sure we agree, and that is the desirability of achieving reconciliation as a means of strengthening the institution of marriage. I should be very sorry if we were—and when I say "for a purely lawyers' reason" I mean nothing disrespectful to lawyers in this House—to alter a Title which is clearly, in my view, related to much of the subject matter of the Bill. As I say, some of your Lordships may not have agreed as to whether the force of Clauses 1 and 2 was likely to be valuable from the standpoint of reconciliation, but the House decided that they were, and by a considerable majority left them in the Bill. Even Clause 3, which is concerned with certain Amendments to the law relating to collusion, will, we hope, provide opportunities for reconciliation through the aid of lawyers and others—indeed, even some lawyers who are inclined to regard their work as social engineering, which is a strange phrase to apply to lawyers. But they have a positive rôle to play.

This Bill has been to another place, and it has nearly passed from this place. The first we heard of the anxiety in regard to the Title was when I saw an Amendment which was starred as having been put down only on Wednesday. The clause which includes the Title of the Bill was, I understand, drafted either with the help or approval of the Law Officers. No approach has been made to the sponsors. No approach was made to me or to my friend in another place, and it seems to me that a last minute thought of this kind, although perhaps possessing some convenience, is not of sufficient merit to change the emphasis which we wish to give to the Title of the Bill. I submit to your Lordships that this is intended to be a reconciliation Bill, and that it would be desirable, therefore, that we should not change the Title. I think we should make a mistake to alter the Title at this stage.

The noble and learned Lord, Lord Hodson, had an Amendment down in similar terms, which he did not move: an Amendment to leave out Clause 2 which was defeated. I hope we shall rest where we are: that we shall recognise that although this Title may not be convenient in relation to previous Matrimonial Causes Bills, it may be the first of a line of Bills which will be deliberately and consciously dealing with reconciliation. On the Committee stage, the most reverend Primate referred to the desirability of a move towards this end. For this reason, I hope that we shall retain the Title, which, in my view, accurately describes the Bill.

LORD SILKIN

My Lords, I am sorry I did not hear the earlier part of my noble friend's remarks on this Amendment, for maybe they would have made an impression on me which I do not at the moment feel. But I think he is making rather heavy weather of it.

LORD SHACKLETON

May I ask the noble Lord how he thinks I am making heavy weather if he did not hear my speech?

LORD SILKIN

As I explained, there may have been something in the noble Lord's speech which would make me think otherwise, but at the moment I feel he is making rather heavy weather of it. After all, the substance is contained in the Bill, not in the Title; the Title is merely descriptive. I had a word with the Lord Chancellor, and am satisfied that there were good reasons for simplifying the Title. I think that the House would be well advised to accept the Amendment for the reasons which were given to me, which seemed to me perfectly satisfactory, that this is one of a line of Bills dealing with matrimonial causes and when the time comes for consolidation, as it certainly will before very long, it will be much more convenient to have these various Bills with similar Titles but different dates. But there is really nothing in it, and I am afraid my noble friend is unduly touchy about this. The Bill will be just the same whether the Title is altered or not.

THE LORD CHANCELLOR

My Lords, may I say just one word in reply to the noble Lord, Lord Shackleton, who, with the greatest respect, I think is making rather heavy weather of this. If we look at Clause 1 we see that it deals with matrimonial law of divorce; Clause 2 contains the words "with a view to a reconciliation"; Clause 3 deals with the amendment of the law of collusion; Clause 4 deals with maintenance and alimony; and Clause 5 with attempts to defeat claims for financial relief. Many of those matters are dealt with in earlier Acts which are all described as Matrimonial Causes Acts. I am not seeking to move an Amendment to alter the Long Title of the Bill, which sets out the purpose and the motive which the Promoters have, and I am perfectly content and indeed would not seek to move an Amendment to the Long Title, which reads: An Act to amend the law relating to matrimonial causes; to facilitate reconciliation in such causes; and for purposes connected with the matters aforesaid. All I am seeking to do is to move an Amendment to Clause 6. In Clause 6(1) the noble Lord will see that he is providing that This Act may be cited as the Matrimonial Causes and Reconciliation Act 1963. The next subsection says that the Act shall be construed as one with the Matrimonial Causes Act, 1950". I suggest to the noble Lord that this is only a question of making no other Amendment than to alter the citation of this Act; and if we are going to cite it with other Matrimonial Causes Acts I think that strictly, and also for the purposes of consolidation, it is desirable that it should bear the same name. Therefore, I must ask your Lordships to accept this Amendment.

LORD CONESFORD

My Lords, may I briefly support this Amendment on the grounds stated by the noble Lord, Lord Silkin? I am quite confident that if there were any practising members of the Bar present in your Lordships' House to-day they would support this Amendment on the grounds of convenience. It is quite certain that sooner or later there will be a Consolidation Act, and Consolidation Acts are always more readily made if the Acts to be consolidated bear similar titles. For this reason I very much hope that this Amendment will be passed.

LORD OGMORE

My Lords, so far as I am concerned, I feel that the main part of this Bill deals with reconciliation, and if there were any danger of that being cast out or affected by this Amendment I should be very much against it. But, having listened to the noble and learned Lord the Lord Chancellor, I believe that the noble Lord, Lord Shackleton, has nothing to fear. The reconciliation question remains in the Long Title, and that is the important part. I think the other matter is really for the convenience of the draftsmen, lawyers and others who have to deal with this question, and I would suggest to the noble Lord, Lord Shackleton, that he really has no reason to fear this proposed Amendment and, in fact, there may be some advantage in it.

LORD SHEPHERD

My Lords, I rise to support my noble friend in this matter, and may I say in the very first instance that the heavy weather or the storm to which my noble friend Lord Silkin and the Lord Chancellor referred could well have been prevented if the noble Lord or one of his representatives had approached my noble friend Lord Shackleton in the matter instead of springing it upon both him and others connected with the Bill at the very last stage.

I understand that the definition of matrimonial causes, according to the late Lord Chancellor, Earl Jowett, was an action for divorce, nullity of marriage or judicial separation, all matters reflecting an action for divorce. This Bill—and its main purpose has been stated many times both at Second Reading and on Committee, and, as the noble and learned Lord the Lord Chancellor has said, it is denoted in the Long Title—is to facilitate reconciliation. I understand that in the early days of the Bill the Long Title was in fact the only Title and that a Short Title has been brought in as a matter of convenience. All previous legislation on divorce which has come under the heading of Matrimonial Causes has been Acts to outline and define the causes under which divorce could be obtained, the action to be taken by courts and its general administration.

I speak subject to correction, but I think this is the first Bill which may become an Act in which reconciliation plays a part, and I feel that on that ground alone this particular word should be included in the Bill to differentiate it from what the previous Acts have been dealing with: the causes of divorce and the actions to be taken in its administration. In this particular Bill, however, reconciliation undoubtedly plays a part because it is the main purpose of the Bill. I cannot myself see that administrative difficulties will arise upon the words "and reconciliation". The intention of this Bill is reconciliation. It is the first Bill, to my understanding, in which reconciliation has been the predominant theme. If that is the case, then I would say that those words should be included in the Bill.

THE LORD CHANCELLOR

My Lords, may I just say one word in reply to the noble Lord, because he made some complaint of non-consultation? I am sorry if there was not sufficient consultation, but, really, the question of what should be the Short Title is usually not a controversial issue at all. This is, I think, the first time I have heard it raised as a controversial issue. There is no question here of affecting the content of the Bill and the whole question is how it should be cited in future and in dealing with the proper entry on the Statute Book.

LORD SHACKLETON

My Lords, may I, with leave, say one more word? I am not complaining about the possible lack of courtesy. My noble friend Lord Silkin had the advantage that it was

Resolved in the affirmative, and Amendment agreed to accordingly.

Then, Standing Order No. 41 having been dispensed with (pursuant to Resolution):

LORD SHACKLETON

My Lords, I beg to move that the Bill be now read a third time.

Moved, That the Bill be now read 3a.—(Lord Shackleton.)

LORD OGMORE

My Lords, I should like to say a very few words, and they will be very few, about this Bill. As I have said before, I regard as extremely important the reconciliation part of this Bill; that, in my view, is by far the most important part. I have been a little disturbed recently by the judicial doctrine on divorce. The recent doctrine by the House of Lords sitting in a judicial capacity is that one can now have a

not necessary for him to hear the Lord Chancellor's speech since he had it privately before. I attach some importance to this point. A Bill is known by its Short Title and not by its Long Title. The object is clear, I think it has been well argued out, and I am inclined now to leave it to the House to decide how they wish this Bill to be known.

12.40 p.m.

On Question, Whether the said Amendment shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 12.

CONTENTS
Ampthill, L. Ferrier, L. Montgomery of Alamein, V.
Amulree, L. Forster of Harraby, L. Morris of Borth-y-Gest, L.
Atholl, D. Fortescue, E. Morton of Henryton, L.
Auckland, L. Goschen, V. [Teller.] Ogmore, L.
Bossom, L. Grantchester, L. Rea, L.
Carrington, L. Grenfell, L. St. Albans, L. Bp.
Cawley, L. Henderson, L. St. Aldwyn, E. [Teller.]
Conesford, L. Hodson, L. St. Edmundsbury and Ipswich, L. Bp.
Courtown, E. Iddesleigh, E.
Cowley, E. Jellicoe, E. Samuel, V.
Craigton, L. McNair, L. Silkin, L.
Derwent, L. Massereen and Ferrard, V. Sinha, L.
Devonshire, D. Merrivale, L. Spens, L.
Dilhorne, L. (L. Chancellor) Merthyr, L. Strang, L.
Dudley, L. Milverton, L. Summerskill, B.
Exeter, M. Monsell, V. Waleran, L.
Ferrers, E.
NOT-CONTENTS
Burden, L. Lindgren, L. Monson, L.
Chorley, L. Listowel, E. Moyne, L.
Effingham, E. Lucan, E. Shackleton, L. [Teller.]
Latham, L. Mansfield, E. Shepherd, L. [Teller.]

divorce for cruelty even if the person who is the offending party did not mean to be cruel. This has resulted immediately in a lady getting a divorce because her husband called upon her to tickle his feet. It does, I think, open the door to all sorts of absurdities—the Reno sort of divorce.

I do not believe in divorce at all, or at any rate in only very rare cases. I look with horror upon this attitude on the part of the Judges, and I hope that they will pay very great attention to the reconciliation part of this Bill and that we shall not have the absurdities which now occur in certain States of America creeping into our law, by which anybody who wants a divorce thinks up some silly reason for it and gets it. The position in this country is bad enough as it is. The real stronghold in this country is, first of all, religion, and, secondly, family life, and the two are very closely bound together. Anything which detracts from religion or family life is much to be deprecated and fought, and I, for one, will do everything in my power to fight it. Therefore, with those few words, I hope that the Judges will not continue with this extraordinary idea of theirs about loosening the idea of cruelty, bringing it down to an absurd degree, and will have regard to what Parliament has now said about reconciliation.

12.50 p.m.

LORD CONESFORD

My Lords, I had no intention of speaking on the Third Reading of the Bill, and should have been well content that the Bill should pass, were it not for the speech to which we have just listened. I have never known an occasion like this to be seized upon by a noble Lord, particularly a noble Lord connected with one branch of the law, in order to attack a judicial decision of this House. I think that his speech was foolish, immoderate and altogether improper, and I thought it right to say so.

LORD OGMORE

My Lords, may I just say that I am not attacking the Bench at all. There is nothing to prevent anybody in this House or outside from criticising a decision. I am not attacking the Judges or the judicial system. I am only saying that I do not like this decision. It is about time that in Parliament—it is about the only place one can do it in this country—one should speak out on these things.

LORD CONESFORD

My Lords, I do not mind the noble Lord speaking out in the least, on a proper occasion. He has seized upon an improper occasion. What in fact he was doing was this. He is sufficiently conscious of the law to know that the decision of the House of Lords as a judicial assembly is now the law of this country. He can alter it, no doubt, if he brings forward an appropriate Bill for that purpose. This is not such a Bill. I should have thought that fact would have been obvious to any layman; but it certainly ought to be obvious to a solicitor.

LORD SHACKLETON

My Lords, may I intervene at this point? I had intended to make my few valedictory remarks on the Motion, That the Bill do now pass. I must say that I support the noble Lord, Lord Conesford, in that I had understood it to be the practice on Third Reading that one debated only what was in the Bill rather than what was outside it. I certainly should not wish to be drawn into discussing a decision which I know has given rise to some interest and controversy, and in fact was the result, I believe, of a divided decision; and I hope that we shall not get into that discussion on this occasion.

LORD HODSON

My Lords, as the noble Lord has made his valedictory speech, may I take this opportunity, since I have been instrumental in opposing him at almost every stage of the Bill, of thanking him for the way he has conducted the Bill, and congratulate him on his conduct of this measure through this House?

On Question, Bill read 3a, and passed; and returned to the Commons.