Lords Sitting of 21 June 1963

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

MR. PROFUMO'S RESIGNATION: SECURITY SERVICE INQUIRY
11.5 a.m.
THE LORD CHANCELLOR (LORD DILHORNE): My Lords, it may be convenient to the House if I repeat a statement which is now being made by my right honourable friend the Prime Minister in another place. I will use his own words, and they are as follows:
"With permission, Mr. Speaker, I wish to make a statement.
"Since the debate on Monday, I have considered, as promised by my right honourable friend the Leader of the House, the form of a further inquiry into the security implications of the events leading to Mr. Profumo's resignation. I think it is generally agreed that there should be an investigation in the light of this case into the operation of the security service and their relationship with the police in connection with matters of national security. The Government intend to establish an inquiry for this purpose. But before I describe it there are certain other questions which I must now bring to the attention of the House.
"It will be within the knowledge of many honourable Members that, in connection with the recent episode, rumours are circulating which affect the honour and integrity of public life in this country and, if they were true, might point to a security risk. Such a situation cannot be tolerated. I have therefore decided that the public interest requires us to establish a Judicial inquiry.
"Lord Denning, the Master of the Rolls, has agreed to conduct this inquiry and to render his report to me as soon as possible. His terms of reference will be as follows:
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"'To examine in the light of the circumstances leading to the resignation of the former Secretary of State for War, Mr. J. D. Profumo, the operation of the security service and the adequacy of their co-operation with the police in matters of security; to investigate any information or material which may come to his attention in this connection and to consider any evidence there may be for believing that national security has been, or may be, endangered; and to report thereon.'
"In the course of the discussion with the Leader of the Opposition I have explained to him the reasons for which the Government believe that in the circumstances with which we are now confronted this inquiry should be of a Judicial character and should cover a wider field.
"When I receive the report I will discuss it with the right honourable gentleman. The Government will then decide the form in which it should be published, whether in whole or in part."
My Lords, that concludes the statement.
EARL ALEXANDER OF HILLSBOROUGH: My Lords, I am much obliged to the noble and learned Lord who sits on the Woolsack for having given the Government's statement. Obviously, there is no blame upon him or anybody else because it was only a few minutes ago that I knew the statement was going to be made in this House, but I have not had time to have adequate consultation upon its very important contents. The need for clearing up the facts which have arisen in the course of recent events is generally accepted. I gather that there has been considerable discussion between the Leader of the Opposition in another place and the Prime Minister, to which of course I was not a party and I do not know anything about it; they were all private conversations. But I should imagine, from what I have been able to ascertain in the course of a few minutes only, that there is bound to be some criticism on the part of my Leader in another place, with regard to both the narrowness of the terms of reference and the difficulties that will attend upon any single judge in this matter, although, of course, in this House we have very full and great confidence in the Master of the Rolls, the noble Lord, Lord Denning. Generally speaking, I am

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not in a position this morning to offer any detailed comment and something further may have to be raised later on, perhaps some time before the actual inquiry commences. So, if the noble and learned Lord will excuse me, I should like to hold open the possibility that I may raise the matter at some other time.
THE LORD CHANCELLOR: My Lords, may I just say this in reply to the noble Earl the Leader of the Opposition? I am sorry not to have been able to give him more notice of this statement and its contents, and I appreciate his difficulty in dealing with it at such short notice. I think when he comes to examine carefully the terms of reference that I have read out, he will agree it would not be right to describe them as narrow. Of course, if the noble Earl wishes to raise any further points with me about this matter, I shall be only too glad to answer him in regard to them.
LORD REA: My Lords, I naturally find myself in a very similar position to that of the noble Earl who leads the Opposition. I am grateful to the noble and learned Lord on the Woolsack for what he said, and grateful for his last remarks, which I take it may apply to me as well as to the noble Earl.
Perhaps I might ask one or two questions, not for immediate answer but to indicate what is in some of our minds. Towards the end of the statement I believe the noble and learned Lord said that the inquiry should be of a judicial character and covering a wider field. I am not quite clear what the word "wider" refers to and what is narrower than the field it proposes to cover.
THE LORD CHANCELLOR: My Lords, I can answer that. First of all, I can assure the noble Lord that most careful consideration has been given to the form this inquiry should take. The Government have come to the conclusion that it must be in all the circumstances, which I will not expand now, a judicial inquiry. The reference to the wider form of inquiry really means this. At the end of the debate in another place the statement was made that an inquiry would be held into the purely security aspect. The noble Lord will see when he examines the terms of reference that the first part of them deals with that, and then they continue:
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"To investigate any information or material which may come to his attention in this connection, and to consider any evidence there may be for believing that national security has been or may be endangered, and to report thereon."
It is that part to which the adjective "wider" is applied, and I think perhaps I have now said enough to indicate and to support my statement that that particular part of the terms of reference really cannot be described as "narrow".
LORD REA: My Lords, I am much obliged to the noble and learned Lord for his kind explanation, which answers my query. I agree with the noble Earl that we cannot possibly enter into a debate on it. But might I suggest to the noble and learned Lord on the Woolsack just one or two small points which may arise? I think all of us want to know whether this judicial court of inquiry will have power to subpoena witnesses; whether it can call for documents; whether the evidence and the witnesses giving that evidence will be privileged in the normal sense, and also, perhaps more particularly, those who are conducting what might be called the prosecution (if that is the right word) in the judicial inquiry, who would normally he the Law Officers of the Crown. In the circumstances of this matter, which has been going on for the last week, these gentlemen appear in a certain light which certainly all of us would like to be cleared up; and I wonder whether it is quite suitable that they should be involved in the prosecuting side of an inquiry rather than as witnesses in the normal way.
THE LORD CHANCELLOR: My Lords, with regard to the last question, the noble Lord has in mind, of course, an inquiry set up under the Tribunals of Inquiry (Evidence) Act, 1921. This judicial inquiry will not, certainly at its outset, be under that Act, and there is, so far as I am aware, no intention of the Law Officers of the Crown taking part in the investigation, which will be conducted by Lord Denning. With regard to the other questions which the noble Lord raised, at an inquiry of this kind at the outset the learned Judge presiding, the Master of the Rolls, will not have power to compel the attendance of witnesses or the production of documents. But the position is this: that if he finds

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that he has difficulty in getting what he wants, he will report to the Prime Minister and the question will be considered. I think, in the light of comments that have been made in relation to recent inquiries under the Tribunals of Inquiry (Evidence) Act, it is right that we should, initially at any rate, start upon the new procedure which was outlined and suggested by my right honourable friend in the course of the debate on the Vassall Inquiry and see how that goes. But if the learned Judge, the Master of the Rolls, has any difficulty in conducting a proper investigation through lack of powers, I have no doubt that he will report to my right honourable friend and the position will be reconsidered.
LORD REA: My Lords, I am most grateful to the noble and learned Lord for his clarifying, and to some extent reassuring, remarks.
EARL ALEXANDER OF HILLSBOROUGH: My Lords, I must say that the more I listened to that explanation the more am I anxious to find out what is the exact position in another place. I think we shall know within an hour or two, and then perhaps I may have something more to say about it. Perhaps I could approach the Lord Chancellor.
THE LORD CHANCELLOR: My Lords, I fully appreciate that, and of course I will do my best to deal with, and answer, any paints that the noble Earl, or indeed anyone else, wishes to raise with regard to this matter.
THE EARL OF SANDWICH: My Lords, may I ask my noble friend the Lord Chancellor to explain a little more, if he can, the phrase "national security" referred to in the terms of reference? Is it to carry, in this instance, the ordinary meaning of the word in relation to external dangers—the question of Communist subversion from overseas—or has it, on this occasion, some internal content: the maintenance and the coherence of our society, public morale, and so on?
THE LORD CHANCELLOR: My Lords, I do not think that it really falls upon me to define the content of the words "national security". I think it requires to be given the widest content that those words possibly carry.

STATUTE LAW REVISION (SCOTLAND) BILL [H.L.]
THE LORD CHANCELLOR: My Lords, I beg leave to introduce a Bill to revise the Statute Law of Scotland by repealing obsolete, spent, unnecessary, or superseded enactments, and to facilitate the citation of Statutes. I beg to move that this Bill be now read a first time.
Moved, That the Bill he now read 1a.—(The Lord Chancellor.)
On Question, Bill read 1a, and to be printed.

CONTRACTS OF EMPLOYMENT BILL
11.18 a.m.
Order of the Day for the Second Reading read.
THE FIRST LORD OF THE ADMIRALTY (LORD CARRINGTON): My Lords, I beg to move that this Bill be read a second time. It is a Bill with two objects: to establish for employees minimum rights to notice of termination of employment, and to require employers to inform their workpeople in writing of the main terms of their employment. Thus the underlying purpose of the Bill is to give greater security to workers. In this it forms part of the Government's wider plans for encouraging an atmosphere in industry helpful to economic change and growth. If we are to keep our economy competitive and bear our share of responsibility for helping the developing countries, our industry must be efficient, flexible and ready to adopt new and better techniques.
This means constant changes in the pattern of employment as some firms and industries expand and others decline. But at any particular point of time this process of economic change and expansion may mean for thousands of our fellow citizens a serious upheaval in their personal lives. It may mean finding a new job; it may mean uprooting home and family; it may mean that a man's skill, learnt over many years, has become outdated and that he must look to a fresh occupation for his livelihood. I do not think we have any right to expect that the workers affected will cooperate in bringing about economic changes or even acquiesce in them, if

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we leave them to face consequences such as these without adequate protection and help. Indeed the fear of change and what it may bring can breed resistance and be a powerful brake upon economic progress. The need for change will therefore be understood and accepted only if those concerned are helped to face the consequences. This problem of generating a sense of security, of helping the worker to meet change with confidence, is fundamental to our industrial efficiency.
The Government's plans for dealing with this problem include the proposals already announced for re-casting our industrial training system. We aim to secure a general improvement in apprenticeship and other training of young people, and also a substantial increase in facilities for training adults, so that our working population will be better equipped to meet the changing requirements of industry. The number of training places in Government centres is to be doubled and up to £10 million allocated for the establishment of industrial training boards. The Government are also determined to secure a general improvement in arrangements for dealing with the problems of redundancy and, as has already been announced, will if necessary introduce legislation for this purpose.
As I have explained, the Contracts of Employment Bill has a place in the Government's plans for dealing with this problem of security. It has a two-fold contribution to make. It gives the worker an entitlement to a minimum period of notice if his services are to be dispensed with. It also ensures that he will be given a clear understanding of his basic terms and conditions of employment.
My Lords, legislation on these matters is a radical step for the Government of this country. Hitherto length of notice and connected matters have been left to voluntary negotiation between the two sides of industry or have been settled individually between the employer and employee. It is not surprising, therefore, that the Bill in its early stages had a somewhat critical reception. The British Employers' Confederation, while not opposed in principle to longer notice, had a marked preference for leaving these matters to voluntary negotiation and was opposed to legislation. This view was
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very understandable. It was entirely in keeping with our traditional approach to these matters. Nevertheless, the Government could not accept it because we took the view that we needed a general and rapid advance, and this could be brought about only by legislation. But the British Employers' Confederation and other organisations consulted about the Bill also made a number of constructive suggestions which have contributed a good deal to improving it.
The Trades Union Congress had certain criticisms of the Bill as originally drafted. They considered that it was unfair to place on employees as well as employers an obligation to give extended notice. This point is no longer relevant. The statutory obligation on the employee to give not less than a week's notice after he has been with the employer for 26 weeks does not increase with longer service. The T.U.C. also said that the Bill did little for workers whose employment was less secure, in the main those connected with the construction industries, shipyards and shipbuilding. As I shall explain in dealing with the main provisions of the Bill, this point has been largely met.
My Lords, I return now to the Bill's main provisions. Clause 1 lays down the minimum periods of notice. When an employer gives notice the minimum is one week for an employee who has worked for him for at least 26 weeks but less than 2 years; 2 weeks if the employment has lasted between 2 and 5 years; and 4 weeks if it has lasted 5 years or more. When the employee gives notice, it is one week if the employment has lasted 26 weeks or more. This period does not increase with longer service. The period of employment must be continuous and is counted in weeks. The rules for reckoning it up are given in Schedule I. It is made clear in the Bill that these provisions do nothing to prevent either employee or employer waiving his rights to notice on any occasion or to prevent them from agreeing on a payment in lieu of notice. Nor do they affect the right of either party to terminate employment without notice in the sort of circumstances which would at present justify such action—such as serious misconduct.
I should like to draw attention to three main changes which have been made in the notice provisions since the Bill was

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introduced. First, a right to one week's notice after 26 weeks' employment has been introduced. Originally, the Bill gave no rights to notice to employees who had worked for their employer for less than 2 years. This left a gap. Although many workers qualify under their contract for a week's notice after their probationary period, there are important exceptions. In the shipyards and in building, for example—although in this latter industry a change is pending—workers may be discharged under their contracts with virtually no notice. Moreover, for many workers in these industries frequent changes of employer are customary, and they would be unlikely to satisfy a qualifying period of 2 years' employment with one employer. The two sides of the building industry have recently agreed to introduce in August provisions for one week's notice after six months' employment. This progress is most welcome. Nevertheless, for workers in shipyards and other employments, who are still liable to dismissal with little or no notice, the right to one week's notice after 26 weeks' work will be a real advance.
The second important change is that the notice to be given by the employee now remains at one week and does not increase with longer service. Without this change, long-service employees might have been held in the event of redundancy, while those with less service would have been free to leave before them and get the pick of the available jobs.
Thirdly, the rules in Schedule 1 about the effect of a strike on continuity of service have been changed. The Bill is not an anti-strike measure, but it cannot ignore the problem of laying down how a strike should affect continuity of employment. The rule proposed in the Bill respects the right to strike. A strike will affect continuity of employment only if it is in breach of contract. Since the Bill writes into the worker's contract important new rights to notice, it is only reasonable that these should be conditional on the worker's honouring his obligations under the contract.
My Lords, I should also like to mention another provision of Schedule 1 which has attracted some comment. To qualify for rights to notice, the worker must be employed under a contract which normally involves at least 21 hours' employment a week. The same
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dividing line is used to govern entitlement to a written statement of terms of employment. It seems to me right that the Bill should benefit those who depend on their employment for a substantial part of their livelihood and that inconsiderable and spare-time employment should be excluded. The precise number of hours to be chosen as the dividing line is clearly a nice matter of judgment. Twenty-one hours is half the normal working week common among industrial workers and seems a reasonable dividing line. The Government have, however, undertaken to consider, and we are considering, whether, in order to enable any adjustment to be made which experience shows to be necessary, they should seek powers to vary the limit.
The right to notice might mean little in itself unless the employee's right to payment during notice is defined. This is dealt with in Clause 2 and Schedule 2. The objective is clear: to safeguard the employee against a serious drop in pay when he is under notice. It has proved most difficult to find a formula which would apply satisfactorily in all employments. The original proposal—for payment based on average earnings over the previous 26 weeks—was criticised on the ground that it would give rise to serious anomalies and would place an undue administrative burden on employers. The new rules which are set out in Schedule 2 should be much simpler to operate. They distinguish between employees who have normal working hours under their contracts (and the vast majority of employees are in this category) and those who have not.
A man who has normal working hours and works for at least those hours during notice will be paid according to his contract. This, as I say, will cover most of the employees under notice. In these circumstances, the contract will be a sufficient safeguard, and no special calculation will be necessary. But protection is needed for those workers who do not work their normal hours during notice because of sickness, short-time working and other reasons. Time workers in this group are to be paid during notice not less than they would have received for their full normal hours of work. Piece workers are to be paid for each hour not worked at a rate not less than their

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average for the preceding 4 weeks. Protection is also needed for those with no normal hours. They are to be paid their average earnings, but the average will be struck over 12 weeks instead of 26. These new provisions stick more closely to the contract than the original formula. I think, too, that as a result of this the possibility of anomalies and misunderstandings will be greatly reduced. In most cases no special calculations will be needed.
Clause 2 of the Bill gives scope for alternative arrangements governing pay during notice where these would suit individual circumstances. Under subsection (3), the parties concerned can agree on a contract containing different provisions for pay during notice, provided that the notice which the employer must give is at least one week longer than that required by the Bill. Thus, the employer has to offer substantially longer notice before he can seek to vary the requirements of the Bill as regards payment during notice. It will always, of course, be open to the employee and his trade union to consider what is offered in the light of the statutory rights under the Bill.
Clause 4 of the Bill requires employers to give their employees written particulars of the main terms of employment. Terms concerning pay, hours of work, holidays and holiday pay, sickness and sick pay, pensions schemes and length of notice are to be included. With the exception of notice, the Bill does not lay down minimum terms to be included under these heads, but if under any of these heads no provision is made, then the statement must say so. The purpose of this provision is, of course, to let the employee know clearly on what terms he is employed. The clause also empowers the Minister of Labour by order to add to the list of particulars which are to be given. This will enable the requirements to be adjusted as and if circumstances change. The statement must be given to the employee within thirteen weeks of starting work. Originally the period of grace was five weeks but this has been extended to thirteen weeks to exclude seasonal, temporary and casual work, as it would be unreasonable to impose the obligation on employers in respect of such workers.
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The preparation of the statement required by Clause 4 will mean some additional paper work for employers, but efforts have been made to keep this as little as possible. The employer may refer the employer for particulars to any reasonably accessible document without re-stating them. Changes in the terms of employment must be notified within a month by one of three methods: by individual notification; by circular or notice, provided a copy remains reasonably accessible or, where the original statement referred to any document, by keeping that document up to date.
My Lords, under Clause 5 registered dock workers, merchant seamen and fishermen are excluded from the Bill. The employment of registered dock workers is regulated by separate legislation, and it would not be appropriate to deal with it in this Bill. The Bill's provisions cannot be applied to the special circumstances of sea-going employment. Subsections (5) and (6) empower the Minister of Labour by order to vary these categories should circumstances change. Because of its importance this power is exercised only subject to Affirmative Resolution of both Houses of Parliament.
These then are the main provisions of this short but important Bill. Broadly speaking, they reflect existing practice in progressive firms. The Bill will thus raise the general standard in these matters, and will be generally welcomed as a reasonable measure, of benefit to many millions of workers. The Bill is an integral part of the Government's measures to increase security of work. It should help to create throughout the whole employment field an atmosphere in which co-operation, acceptance of necessary change, and efficiency will flourish. I commend it wholeheartedly to your Lordships. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Carrington)
11.35 a.m.
LORD WILLIAMSON: My Lords, first of all I think I ought to congratulate the noble Lord opposite on the manner in which he has introduced this Bill. He almost brought me to believe that this Bill is likely to bestow great benefits on the workers, which of course is not the case. I think I ought to confess at the outset that I am instinctively

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opposed to this Bill, because I have a sincere belief and faith in the British system of voluntary negotiation and agreements between employers and organised labour. I believe that our industrial relations will be all the better for reliance on and confidence in the voluntary system; and that in the long run we shall continue to encourage in industry an increasing sense of responsibility.
Over the last forty years or so we have built up a splendid system of national and regional joint industrial councils, and other negotiating bodies, covering the broad field of British industry and commerce. Only a very small part is subject to statutory wages councils carrying legal enforcement—mainly in unorganised trades where voluntary machinery is not practical. The British system of wages and conditions fixation, with all its defects, has been praised and admired, and indeed has been accepted as the model for less developed and emerging democracies. It is admired for the universal acceptance of voluntary agreements between managements and labour requiring little or no legal compulsions. I remember a delegation of young German workers coming over here shortly after the war, to study our system of wages and conditions fixation, and the voluntary system was explained to them in detail. During the questions they asked persistently: "How are these agreements enforced? What do the Government do to enforce them?" We tried to explain patiently that there was not any enforcement, and that it was not necessary. But I am perfectly certain that they went away and thought we were misleading them.
My Lords, in a democracy nothing is perfect, and democracy will work, and will survive, only if there is a social consciousness and willingness to make it work. In our industrial relations we have gone a long way towards making the voluntary system a success. As a nation we are very advanced in these matters, and that is why I deprecate the superimposing of legal enactments, particularly when they do not appear to be necessary. The survival of our democratic system will ultimately depend on the confidence placed in, and the success of, democratic principles and procedures, and it is in this direction that encouragement and support at all times ought to be given.
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Throughout the vast field of industrial and commercial activity, with the exception of that small section covered by wages councils, men and women go to work, and employers meet the obligation of wages, salaries and conditions, not with legal enactments carrying penalties for non-compliance, but on ordinary man-to-man agreements; and, very often, simply on decisions of joint meetings, probably backed by nothing more than the minute of a meeting. I do not believe that it will do any good to bring into the field of politics the delicate and complex matters of wages and conditions fixation. Experience has shown that they are better dealt with by those within and close to the various industries. The employees concerned—and, indeed, the employers, too—have greater confidence in decisions so reached than they can have in legal enactments drawn up without the intimate knowledge of the various industries affected. There are already too many unions, and it would be a pity if we had the addition of another—the Parliamentary union. It is for these reasons that I profoundly dislike the Bill.
The Government, through the Ministry of Labour, have constantly pleaded for more and more and closer joint consultation between management and labour, and this exhortation to industry has been very well canalised through the Ministry of Labour's National Joint Advisory Council. This admirable body, on which I was privileged to serve for some twelve years or so, has been a source of strength to the Ministry of Labour on industrial matters. But, on the formulation of the provisions of this Bill, I understand that no prior consultation took place with the Advisory Council, which probably accounts for the very ragged Bill which was originally submitted to another place. Now the British Employers' Confederation made a statement in Bulletin No. 199, and this is what they said:
"In any event, the legalistic approach to industrial relation problems creates entirely the wrong atmosphere. It now appears that the Government considers that progress towards longer notice has been too slow. In the Confederation's view, the proper course is for the Government to say so, and give employers and workers an opportunity of adjusting their agreements."
The British Employers' Confederation is right in this, because if it is construed that employers have been too niggardly and trade unions too weak or lackadaisical

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in pressing for longer notice, we cannot blame the unions, and particularly the more militant ones, for adopting in the future a more aggressive and militant policy in the prosecution of their demands. It is fallacious to argue that trade unions should condition their demands and approach in negotiations on increased productivity and industrial efficiency, and the capacity of industry to meet these demands, if, without any regard to these concepts, Parliament concedes them. Trade unionists will be quite justified, if this Bill becomes an Act, in saying to the unions, "Why haven't you secured those conditions in the normal way? Why should Parliament have to step in? You are too easy going; you are too weak; you are not sufficiently militant ". And, my Lords, this can be very dangerous.
It is now suggested that the employers or the unions have failed in this matter of adequate notice, and that therefore Parliament must act. During debates on this Bill in another place it was suggested strongly that there are other matters which the right honourable gentleman the Minister of Labour should tackle. Indeed, the noble Lord, Lord Carrington, in his speech introducing the Bill, mentioned that there was to be another Bill on redundancy payments. There are many other matters which arise in negotiations in British industry that might also be the subject of future Bills: adequate holidays, shorter hours, sickness and accident payments, pension schemes, rest periods and low average earnings in some industries. Is it the intention to bring in Bills to deal with matters of this description? If so, whatever confidence there may be in the voluntary system will have been completely undermined.
It is claimed that this Bill gives some idea of security to the majority of the workers. This is an extraordinary interpretation. It does nothing of the sort. All it does is to provide for the bad news of dismissal to be given in advance. It is claimed that a worker receiving one, two or four weeks' notice will have so much time to look round for another job. But he has to work out his notice. How can he look round for another job? He will be working all day, so far as he is a day worker, and his free time will be in the evening,
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when other works are closed. If the employee working out his notice asks for a day or half-day off to seek other employment, the Bill specifies that, although the employer grants the employee permisison to be off for this excellent purpose, the employer is not liable, and need not make any payment for that time off. What security is there in this?
I think it would have been a much better Schedule 2, and a much better Bill, if it had provided for some minimum time off with pay—say, a day a week—so that the employee could seek other employment or keep an appointment with another employer for another job. The noble Lord opposite, I know, said that, notwithstanding the provisions of this Bill, employers could grant time off with pay; and of course, the progressive employers will do so. But this Bill is not directed against the progressive employers: it is directed against the backward employers who will not by voluntary negotiations concede longer notice.
The purpose of the Bill, as the noble Lord opposite has said, is to do two things: to provide for longer notice and to give the employee the terms of employment. These are two simple requirements for which any joint industrial council could provide in two or three simple clauses. Yet we have a complicated Bill of thirteen pages, parts of which are so complicated as to be capable of different interpretations, even by lawyers. For the life of me I do not know how a worker is going to understand the provisions of the Bill. I suppose he will go along to his trade union official to find out, and the trade union official will have to go to the union's lawyer. Then, the union's lawyer will say, "I can only give you an opinion. The final interpretation can be laid down only by the courts". My Lords, if one examines the conditions of wages councils, one sees how complicated must be legal enactments on this question of wages and conditions.
There is just one other matter in the Bill on which I should like to comment, and that is the provision to the employee of the terms of employment. Why on earth should an employee have to wait for thirteen weeks before he is told of the wages and conditions under which he has to work? How can there be a

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contract between an employer and a worker if the worker does not know for thirteen weeks the wages and conditions that are going to operate? I am perfectly certain myself that almost any employer could have a simple, cyclostyled statement of wages and conditions which could be handed to the employee when he commenced work, or that the wages and conditions could be posted in a notice inside the works on the notice board which is there for that and similar purposes. The time is limited this morning for discussion on this Bill and there is much more I could say about its shortcomings. I do not think that, if this Bill becomes an Act, it will do very much harm; but I certainly think it will not do very much good.
11.51 a.m.
LORD LAYTON: My Lords, I welcome this Bill because it breaks into a new field of economic relationships in which the Government are co-operating with both sides of industry to compile a legal status for the workmen. But it touches only one relatively small aspect of these relationships; and I agree with the remarks of the preceding speaker who said that it will not do a lot of good but that it will not do a lot of harm. In particular, it does not go far to improve the security of the workman—a fact which has been pointed out by the employers' organisation's memorandum to which the noble Lord, Lord Williamson, referred.
I should like to say a word about my personal relationship to the matters raised in this Bill. In recent years the Daily News has had many cases of redundancy and, as some of your Lordships will know, I have been associated with the Daily News for quite a while. When the copyright and the London assets of both newspapers were sold to Associated Newspapers, letters were exchanged between the chairmen of both groups saying that it was the intention of the board to devote the whole of the proceeds to pensions and compensation to the staff. In the event, although the Daily News was allowed to set aside a fund for continuing existing pensions, and to make certain payments in lieu of notice, a few of which were lower than the figures mentioned in this Bill but most of which were very much higher, it was
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prevented by the High Court, on the initiative of a shareholder, from carrying out its intention of paying compensation of one week's pay per year of service to all unpensioned members of the staff; and we were in a position to do that largely because the majority shareholder of the Daily News, Ltd., is the Daily News Trust, which specifically lays down that the property, profits, and so on of the Trust are payable for the benefit of the staff and may be so used. But, of course, that cannot always be the case.
Our experience disclosed a serious gap in the protection of our employees. Some other company which is prepared to close down may not be able to find, as we were, legal means of getting compensation into the hands of its dismissed employees, who may find themselves thrown out on to the streets. This problem is not seriously tackled at all in the present Bill. A year ago the Prime Minister, speaking at Luton Hoo, said:
"We must devise measures relating to the status and security of the whole working population whether on the floor of the factory, in the office or in the shop."
It was impossible for me to refer to anything on that subject so long as the issue involving the Daily News was sub judice; but that is now out of the way and the employees have had their compensation. As the head of the Government made this very important announcement, that they were going to take steps to enlarge the security of the employees, it was clearly right then to say nothing about it but to leave it to the Government to do so.
But I confess that I was very disappointed when I saw, at the start of the current Session, that the gracious Speech from the Throne referred merely to this very modest little Bill. Revolutionary developments are taking place in man's control of nature which, for better or worse, are going to alter the conditions of life on this planet. All the Government have so far contributed to that is that the employer must write out the terms of employment and that there will be a time fixed for giving notice of breaking the contract on either side. I am not going to cover the details of that argument, because they have already been well covered by preceding speakers. But it was certainly given a bad reception in

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another place; and the employers' association and the speakers in another place on the Bill have all, with one consent, said that the number of people who will have greater security of employment is extremely limited.
I should like here to interpolate just this comment: I sympathise with the noble Lord, Lord Williamson, in attaching great importance to building up personal relationships between the two sides of industry, but I think that, when they come to deal with redundancy, the Minister or Ministers in charge must never forget that redundancy unemployment affects much more the elderly employee, who cannot get started again in industry, than the people who are much younger. I feel that there is a danger in attaching so much importance to the personal relationships of trade unions and employers, from the fact that it is the strong trade unions who will get the good schemes. It is for the Government to take care of the unorganised or poorly organised workpeople; because, as I have said, they are the people who will suffer from unemployment when it arises. Therefore, while this Bills talks of notice, and writing out terms of agreement, it is all right when it applies to compensation in lieu of notice, and payment in lieu of notice; but when you get down to real protection for security you must have great flexibility, and cover age, period of service and income bracket. We cannot just keep people going, if they have been thrown out of work in large numbers, whether it be from the railways or coal mines or any other industry. Nor can we treat them all alike. Therefore, this must be very flexible.
I am not going fully into the question of what the Government are going to do. Many statements have been made and a certain amount of information is leaking out as to the form their action may take. It was suggested in the Budget speech that, when the Government had looked more fully into the whole question of redundancy, there might be legislation in the later part of this year. I think that it is a very optimistic hope that they will be able to do that this year, but obviously that is now the intention of the Government. I think that until the Advisory Committee of the Ministry of Labour have reported, it is too soon to make any serious comment or suggestion.
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However, I think that it is relevant to say at this stage that our ideas are fat behind those of France, to quote only one other country in Europe. I mention this because we have paid compensation to a Frenchman in our Paris office on the basis of the French code, which gives a legal right of compensation in the event of an employee losing his job through no fault of his own, not on a basis of one week's pay per year of service but of one month's pay per year of service, and this is done automatically for fifteen years, a rate which is four times as large as the rate that we propose to pay to our unpensioned employees. And if a Frenchman's claim to compensation is not fully covered on that basis, he can take his case before a standing committee of employers and workers appointed by the Government and they may add to the amount of compensation paid, with no ceiling attached.
If the Government are going to take an increasing part in directing, expediting and keeping up to date the processes of change in the economy, this will become one of their major social services. It will not be so large or so expensive as, for example, the health service or education, but it will be one of the major social services, which covers a great area of activity. I do not think that the cost would be crippling, if considered in comparison with the total national income and, if it succeeds in removing the burden from the individual, it should tend to weaken his resistance to change. If it does that, it will be cheap at the price, because then we shall get more rapid growth as the result of good relations which will develop.
Finance is only one aspect of the problem. There are also different tasks, which have been mentioned by the noble Lord in moving the Second Reading of the Bill, including retraining, rehousing, planning how to make use of manpower as it comes from schools and so on. The Government will have some say in the use of the nation's manpower. Intensive study of these matters has been going on at Strasbourg by the Council of Europe, as well as by the Six, and many pages are devoted to this subject as a whole in the Treaty of Rome.
I regard this as a very urgent matter. Though at the moment negotiations on the Common Market are in suspense, I see no reason at all why we should not

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continue to try to harmonise social and working conditions between Britain and Europe. It is also an urgent matter for us in its own right for, unless we keep in the vanguard of progress—and your Lordships will appreciate that in making these comments I am thinking of the whole area through which we can give greater security to the employee—we cannot hope to retain our great position in the fields of industry and commerce.
12.8 p.m.
LORD MCCORQUODALE OF NEWTON: My Lords, first of all I would join with the noble Lord, Lord Williamson, in congratulating the noble Lord, Lord Carrington, on the clarity with which he explained this Bill and the skill with which he put the best possible gloss on it. I agree with the noble Lord, Lord Williamson, that this measure alone is a very small contribution. I think that it will do now more good than harm, but I wholeheartedly agree with the noble Lord in what he said about voluntary negotiation. Voluntary negotiation is always better, if we can manage it. My colleagues on the British Employers' Confederation, in their statement, emphasised how much better all this would be if it were carried out by voluntary negotiation, such as we know in this country, and I hope that this Bill will do nothing to hinder the forward march of voluntary negotiation between the parties in industry. Before I come to the Bill itself, I should also like to say how pleased many of us are to see my noble friend Lord Layton here and to hear his wise words on this subject.
May I say one word on the complexity of the Bill, a point to which the noble Lord, Lord Williamson, referred? I think that the legal department of the Ministry of Labour must have sat up night after night struggling to put into legal language, without making more anomalies than they seek to remove, what we in industry are accustomed to write in half a dozen sentences. May I suggest that, if possible, some simple leaflet should be issued at a suitable time which could give the many millions who come under the ambit of this Bill a clear insight into what it means? Because I challenge anybody to understand, by reading the Bill, what it is all about. May I also apologise at this stage to the Minister and the House in
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that I have a longstanding engagement, whereby I have to speak at a hospital luncheon, which I entered into long before the horrid idea of your Lordships sitting on Fridays was ever mooted abroad?
As I have said, I rise to give a modified welcome to this Bill in its present form, and I emphasise "in its present form". The original Bill was introduced in the other place in somewhat of a hurry at the beginning of the year, and some of my friends, notably those in the Employers' Confederation, to which I belong, felt that there had been far too little consultation in the matter between the Ministry and the two sides of industry. I would say that, in general, the Ministry of Labour are most circumspect and careful to consult with the different associations—the T.U.C., the B.E.C. and other organisations—before they plunge into intricacies of this sort. In this case, this did not happen; and it was a great pity. My colleagues had serious misgivings about the way the intentions of the Bill were to be carried out, and we issued a very critical statement on the Bill, as it then stood. I hasten to add that the employers' organisations welcome the intentions of the Bill, as I believe everybody will, which are to give some measure of security to the worker, albeit a very small one, to which he has not any statutory right at the present time, and also to see that the employee knows fully his position and his contractual relations with his employer. I do not think anybody can object to those intentions.
The Bill was introduced with the laudable object of improving industrial relations, but we on the employers' side—and from comments made by leaders in another place from the Labour Benches it was quite obvious that the workers' organisations had the same view—felt that the original proposals were likely to have exactly the opposite effect, and would harm, rather than improve, industrial relations. One of the worst enemies of good industrial relations, both on the workshop floor and in higher negotiation, is to get into a state where anomalies abound and where friction can easily be engendered. Indeed, I would say that one of the principal duties of a good personnel manager—in fact of any manager in industry—is to eliminate, so

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far as possible, causes of friction and misunderstanding. We feared that this Bill, as it was introduced, would have rather the opposite effect.
There are many situations in which the thoughts both of the T.U.C. and of the employers' organisations run on parallel lines. People who suppose that the two sides in industry are always, or even mainly, at loggerheads could not be further from the truth. The curious thing is, though, that everybody urges, when talking about industrial relations, that the two sides in industry (as they are called) should be closer together; but when we do get closer together, we come under serious criticism for "ganging up" together. I sometimes regret that. In this case, the minds of the T.U.C. and of the employers' organisations run very much on parallel lines; and I would refer to the admirable speech made in another place by Mr. Gunter on the Second Reading of the Bill, as it was then introduced. After what was said yesterday on quite another subject about quoting from speeches in another place, I will not quote what Mr. Gunter said; but perhaps I may paraphrase without overstepping the Rules of Order. It was evident from Mr. Gunter's speech that he thought the Bill might raise difficulties in industry which might outweigh any advantages that would be gained. He quoted the fact that the T.U.C. and the British employers' organisations were thinking alike in the matter, and that there are all sorts of nuances and small matters which happen on the workshop floor which can be quite easily dealt with in the industrial council, but which cannot be put into a Bill of this sort.
I am glad to note that the Government themselves regarded this rather novel Bill as one which could be, and must be, improved. They put down a whole range of Amendments to meet some of the criticism which both the T.U.C. and we had advanced, and they accepted other Amendments in Committee. I should like to pay tribute to the Parliamentary Secretary in another place for making himself complete master of this rather complicated measure, and for helping me personally, and I know many others, in considering the Bill. I think that nearly all the anomalies and the causes of friction have now been eliminated. I
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believe that we have a good little Bill before us, and one which will bring some positive benefits to our workpeople. It will take its place, as I said before, with what I regard (and this, I think, is generally accepted) as the much more important proposals with regard to training and redundancy which are now being fully discussed with both sides of industry. I believe that, with this trio of the training proposals, the redundancy proposals and this Bill on the Statute Book, some advance may reasonably be claimed. It seems to me that we should pay tribute to the initiative of the Minister of Labour in embarking on this difficult task, and wish him success. I am sure that all of us hope that whatever comes out will increase the happiness of all those engaged in industry.
My Lords, I am not proposing this morning, although it is tempting, to engage in any dissertation upon methods of improving our industrial relations in general. I believe that we should notify everybody in writing of what his or her rights are. Indeed, the noble Lord, Lord Williamson, has a serious point when he asks why we should wait for a period of thirteen weeks. There are, I understand, great difficulties about doing this in certain casual employments, but I should have thought that it might be possible to eliminate this casual section, and to give to the worker, whether in private or industrial occupation, on arrival a statement saying what his terms of employment are. I hope that this may be considered. I would say that, in general, I wish this liberal Bill well; though there are one or two points that I hope we can improve still further on the Committee stage.
I wish at this stage to refer to one small, although rather important, anomaly which I hope we shall be able to consider. As I interpret Schedule 2, it appears that it would be to an employee's considerable financial advantage if he were to be away sick during the period of notice rather than to be at work. Paragraph 2(5) provides that any payments made to the employee by his employer in respect of the relevant part of the period of notice, whether by way of sick pay, holiday pay or otherwise, shall go towards meeting the employer's liability to payment during that period of notice; but no mention is made of the

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employer's liability being reduced by any benefits being received by the employee under National Insurance or sickness benefits.
A man who is away sick during the period of notice would, therefore, apparently receive both the wages to which he is entitled under the Bill and, in addition, any National Insurance or Industrial Injuries benefits to which he is entitled. He would also be excused from paying any contributions under the schemes and would, therefore, be quite considerably better off if he were away sick during the period of notice than if he were working it out. The Bill might therefore provide an incentive to an employee to go sick during the period of notice, which is obviously undesirable. He would, of course, normally have to prove to his employer that he was incapable of work due to sickness or injury (which I believe is the right phrase), but it is certainly not unknown in industry for people to obtain medical certificates which might be regarded by some as on totally inadequate grounds. As the provision stands, it might also give a financial incentive to an employee who is genuinely sick to give notice in order to obtain those extra benefits as well, although that is only a minor point.
It may be argued, on the other side—and I quite realise it—that, since an employee has contributed to the National Insurance scheme, he is entitled to the benefits of this scheme. The employer and the State have also contributed, and the employer is paying his wages and, if he is sick, is of course getting no advantage. It would therefore seem to me to be reasonable for an employer to be able to claim that his liability under Clause 2 of the Bill with regard to payment of wages should be such that the payment of the wages and the sick benefit together should be equal to the wages the man would get if he were in work.
An increasing number of employers, I am glad to say, are introducing contributory or non-contributory sick pay schemes for their employees, and, so far as I can make out, in these schemes, and in the schemes which provide for full wages while sickness occurs, in practically every case it is a fact that if the man receives full wages he forfeits his National Health benefits. I suggest that this is, although a small point, one
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which is worthy of consideration, and I hope to put down an Amendment at a suitable time so that we can discuss the matter further. I say that now only so as to give the Ministry warning. In conclusion, I would say, as I started, that this is a small Bill. I think that it will help. I give the Government full credit for accepting the many Amendments which were proposed on both sides of industry, and I trust that to the small section of the community, the employers, who do feel grateful, this statutory benefit may prove of assistance.
12.26 p.m.
LORD ROBERTSON OF OAKRIDGE: My Lords, we have had a speech this morning from the noble Lord, Lord Williamson, whom we all recognised to be pre-eminently qualified to speak for the great trade union movement. We have had a speech just now from the noble Lord, Lord McCorquodale of Newton, whose qualifications and credentials for speaking on behalf of employers are probably unrivalled. I do not propose to follow either of these noble Lords over the ground which they have trod. I have been associated with the employers' side of industry before the war and since the war, and less executively I still am. But it is not at all as an employer that I wish to speak, and I should like to try to present to your Lordships, as briefly as possible, what I would call the case for the third party in this matter.
The noble Lord, Lord Williamson, castigated the Government for intervening in this affair. I hope that I shall not be accused of ignorance about the importance and value of direct negotiations between the parties in industry. I certainly do not feel that I am ignorant, and I believe that I understand its value fully. But what I would say is that in these days industrial relations concern the third party in the matter, that is, the ordinary member of the community. They affect his standard of living and his pocket. They affect the whole nation, its prosperity and prestige. Industrial unrest is not a sort of private fight that other people cannot get into.
The interests of the community are very much involved and, surely, the custodian of the interests of the community is the Government, and if the Government feel, as I believe that they have every right to feel, that over this

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whole field covered by the Bill and the other Bills which are to follow there has been insufficient advance during the recent years, then they have the right and duty to intervene. I honestly believe, with great respect, that in view of the situation as it exists in the country, the noble Lord, Lord Williamson, is on weak grounds to castigate the Government in this way.
As the noble Lord, Lord Layton, has pointed out, we are very much behind other nations here. He mentioned France. I am a director of a company that has workers in other European countries, and I know full well we are very much behind other nations in the arrangements we have for security of employment and looking after men when they have to change their jobs and so on. In parenthesis, I should like to qualify that with this statement. Some of these countries legislate far too much, and the result is that they have completely depersonalised industrial relations, and that is something I would not advocate.
However, it cannot be right that we have fallen so far behind them, as anyone knows who has knowledge of what is going on, and I think we are not being particularly helpful in the discussions which are going on in international bodies such as that at Strasbourg and in the International Labour Organisation. The situation which we have allowed to continue in this country is a drag on the progress towards prosperity. That has been said in other words already this morning, and it has been said by no less an authority than the N.E.D.C. "It is an affront to our conscience"—that has been said, not by me but by the Church of England in a pamphlet which was issued last year, headed "Redundancy", and I expect your Lordships are familiar with it. This pamphlet advocated legislation exactly on the lines of this Bill.
Then there is the effect that our position has on other nations. The noble Lord, Lord Williamson, said that after the war parties of young Germans came over here to study our industrial relations. Certainly they did. As a matter of fact, I sent them here under the authority given me at that time by the noble and gallant Field Marshal Lord Montgomery
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of Alamein. They learned a lot, I think, which has been of great value to them. Many of the younger nations of the Commonwealth also look to us for an example and guide in these matters, and I think that it is a pity that in this particular field we are not setting a better example than we are doing. So I find this Bill not a little Bill, but a very good and important Bill.
After all, is it not true that it at least breaks precedent in three important respects? In the first place, as was pointed out by the noble Lord who opened this debate, it introduces a drastic change and departure from tradition in that it recognises that industrial relations are not solely of concern to employers and to workers, but are also a concern of the community and therefore, maybe, of the Government. In the second place, it offers the worker a legal contract of employment, something he has never had before. Of course, many employers give their employees a contract and some measure of security. All employers, however, are not good employers. And, in any case, it is a new thing that they are now legally entitled to a contract which sets out not merely the period of notice but conditions relating to holidays, sick pay, pension rights and many other things, one of which I am going to deal with. In the third place, the Bill accepts the principle that the worker not only has rights but also has responsibilities, and this point, rather to my surprise, has not been touched on by any of the previous speakers.
Like the noble Lord, Lord McCorquodale of Newton, I feel after yesterday that I have to be very careful about referring to anything that was said in another place, but perhaps like him also I might paraphrase what was said by one speaker, which was roughly this: the people who drafted this Bill did not understand the mentality of the worker. If Bill Jones hears there is a better job going across the road he is not interested in a complicated Bill about periods of notice; all he is interested in is walking across the road and getting the other job. That may be so. But Bill Jones's interests, and indeed his employer's interests, are not the only interests involved. The interests of the community also are involved. As the Bill was originally drafted too long a period of notice was required from the

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worker. That has been conceded. But whether one week is enough to protect the interests of the community without any other qualifications, I am not entirely sure.
I will be very plain as to what I mean by that. In certain sections of industry, including one with which I am familiar, the contract of employment includes the provision that a man shall not withdraw his labour over a dispute while that dispute is still under discussion in the agreed machinery. That is a provision which, it seems to me, should be regarded as a good one by both employers and trade unions and one which should be made of general application. I hope that when the time comes for employers and trade unions to agree upon the terms of these contracts of employment they will think of that. I know quite well that I am putting my neck out a bit in speaking of this, but I do not think I shall be accused of being a strike breaker. Indeed, I once stood up for the right to strike to the extent of tendering my resignation. It was not accepted, and it seemed my offer was not even treated very seriously, but it was meant. And, moreover, the amusing thing about it is that the resignation was tendered to no less a person than the late and very lamented Mr. Ernest Bevin. I say that to excuse myself, as it were, for referring to this matter. Of course, the right to withdraw labour is a precious right and should never be withdrawn, but it is a right that should be exercised, surely, with responsibility and without wanton peril to the interests of the community.
There is just one other aspect of this matter which concerns not the worker but the employer. I have heard it said that provisions of this sort which seem to aim at limiting lightning or unofficial strikes are not any good; that you cannot legislate about these things. If there is a strike, when it is over the employer will be under great pressure and "No victimisation" will be the cry. Well, my Lords, why should the victim be the community? If this Bill becomes law, would it be right for an employer to flout the obvious will of Parliament and sacrifice the interests of the community by giving way to pressure of this kind? It does not seem to me it would be right.
The Bill was described by the noble Lord, Lord Williamson, as having been
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a very ragged Bill. It has perhaps a few ragged edges still. My attention has been drawn to two, one of which has already been mentioned by the noble Lord, Lord McCorquodale of Newton, namely, that the Bill apparently proposes to pay a man under notice more money for being sick and idle than for being fit and working. The other provision which seems to me a little dangerous is that in Clause 2(3). If an employer offers his workers more notice than he is required to do by the minimum laid down in the Bill he is apparently excused from the provisions of Schedule 2 as regards the level of payment he must make. This may be a matter for interpretation only, but it has been pointed out to me, and the Government may like to look at it, as being a loophole for an unscrupulous employer.
That is all I wanted to say to your Lordships on this subject. I think the Bill is a very important one and a very good Bill from the point of view of the community, and I think that is essentially so because it encourages the concept of responsibility towards the community, both among employers and among workers. I hope your Lordships will give it not only a modified welcome but a very warm welcome, as I do myself.
12.37 p.m.
LORD JESSEL: My Lords, my welcome to this Bill is somewhat lukewarm, as was that of the noble Lord, Lord Williamson, and my noble friend Lord McCorquodale of Newton, so I am in good company. I also agree with them that if the Minister of Labour had had more consultations with both sides of industry he would not have had to accept so many Amendments in another place. But it is only fair to say that he did accept them, and the result is a very much better Bill. Whether the overt acceptance of the right to strike is a good thing, I think is open to doubt. Of course, the idea is that it will result in a great diminution in the number of unofficial strikes; but that remains to be seen.
The general ground has been covered very thoroughly already and I want to deal with only one point, and that is a problem which has been pointed out to me by the engineering industry. Let us suppose that there is a strike in one factory which results in a shortage of material in other factories—and, as your

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Lordships know, this frequently happens in the motor industry. It is then often necessary for employers in the other factories to put their work people on short time or to lay them off completely. At present when this happens in the engineering industry there exists an agreement under which the workpeople affected are guaranteed either four days employment each week, or, if production ceases entirely, 34 hours at their basic consolidated time rate. I believe similar agreements exist in several other industries.
But if the employer takes the view that owing to shortages of material there will be no work at all for his people for many weeks, what is he going to do? At present, in those circumstances, he can give his work people one week's notice or one week's pay in lieu of notice, and terminate their employment. Under the terms of the Second Schedule of this Bill, this will no longer be possible in every case, because employees covered by the Bill are entitled to the statutory period of notice prescribed in Clause 1, and they will have to be given two weeks' notice or four weeks' notice according to their length of service. It is only in respect of employees with less than two years' service that one week's notice will be possible.
I can, of course, think of other situations, apart from strikes in factories supplying materials—for example, transport strikes, or a strike in an electricity supply industry—which can result in factories having to cease or curtail production. Here an employer would be in exactly the same position. Only those employees with less than two years' service could he get rid of with a week's notice. I thought I would mention this on Second Reading so that the Minister should have time to consider it, because I propose putting down an Amendment on the Committee stage.
12.42 p.m.
LORD AMPTHILL: My Lords, I rise to support the Second Reading of this small Bill. I have listened with the greatest possible interest this morning to the speeches made by noble Lords, and there is really nothing much that I can add. I may say that I found much to agree with in the speech of the noble Lord, Lord Williamson; I found much to agree with in the speech of my noble
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friend Lord McCorquodale of Newton; but, most of all, did I find myself in sympathy with the speech made by the noble Lord, Lord Robertson of Oakridge. Therefore my support of this Bill, like his, is largely unqualified. I believe the Bill will do something—perhaps only a little, but something—to improve human relations in industry for the working people and, as Lord Robertson of Oak-ridge has said, in the community.
As a member of the Council of the Industrial Welfare Society, I am much aware not only of what our own Society is doing but of what others are doing in this field. I am also much aware of the number of inquiries which the Industrial Welfare Society receive, particularly from the smaller firms but even from some of the bigger and more progressive firms, asking the advice of the Society on how to handle this or that problem of human relations. Also, as Lord Robertson of Oakridge mentioned, the Industrial Welfare Society is doing a great deal to spread sound ideas which we believe in, in this country, far afield in the Commonwealth and even elsewhere. From all these sources one can read much and study much on this subject of human relations in industry and the community at large, but, by and large, I believe that it really boils down to two words: courtesy and consideration.
When I think of the word "consideration" I remember my early naval training, fifty years ago, at the Royal Naval College, Dartmouth, when we were taught "The men must have their dinner hour". I will not pursue this intriguing theme because it is approaching the time when your Lordships must have your dinner hour. I had hoped that my noble and gallant friend the First Lord would perhaps pipe us to dinner, but unfortunately, if I read my papers aright, he is abolishing the bosun's call and we are going to rely on loud speakers. I do not know what happens if the fuzes blow.
To return to the Bill, the main principle embodied in it is the right of both employer and employee to a minimum period of notice. Courtesy and consideration apart, we all know, probably only too well, the feelings of insecurity caused by the fear of the "sack" at literally minutes' notice. These feelings can, and should, be alleviated by the giving of adequate notice to an individual. Of course, nowadays dismissals arise often

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from redundancy for one reason or another. I must say that I regret that this Bill does not also deal with the question of redundancy. Similarly, the employee has to give seven days' notice. I think that is a good provision to embody in the Bill. It is part of the "courtesy and consideration" and, after all, the withdrawal of labour for any reason is not merely a question of profit or loss to the employer. The employer in his enterprise has undertaken wide commitments and contract; and all sorts of responsibilities to the community at large, and I think, therefore, he is entitled to some notice. I believe that the minimum periods laid down in the Bill are fair and reasonable.
In many cases progressive firms are already approaching that sort of point, and I do not think this statutory adoption will present any special difficulties in most industries—gat any rate not those with which I am familar. In my own industry a year ago we agreed with the trade unions an increased period of notice for people with 20 years' service or more. I must say that I have great sympathy with the noble Lord, Lord Williamson, in preferring direct negotiations with the trade unions and keeping the Government out, whichever Government it may be.
However. I should like to point out that this Bill is silent about the minimum period of notice to be given to or by employees with less than 26 weeks' service. My own company's rule on the subject is as follows—perhaps your Lordships will permit me to read it:
"Your engagement during the first month of employment will be from day to day, and may he terminated by the company or by you at the end of any day. After one month's employment you must give the company one week's notice, to run from any day, before leaving the company's employment, and similarly the company will give you one week's notice before discharge."
It occurs to me that the silence of the Bill on this particular question could give rise to the wrong impression among employees with less than 26 weeks' service—namely, that the contract that they had entered into at the time of their engagement (that is, to give seven days' notice of resignation) was invalid if it goes beyond statutory requirements. Clause 1(3) provides that either party can waive his right to notice on any occasion. It also provides that the clause shall not be taken to prevent either party
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from accepting a payment in lieu of notice.
I have always understood that an employer has the right at present, without committing any breach of contract, to pay wages in lieu of notice, and I think that this right should be specifically reserved in Clause 1(3). We all know that in most cases where an employee is dismissed, or even has given notice, it is infinitely preferable for all parties that the notice should not be worked out. I am a little doubtful about subsection (6) of Clause 1 where the employer's right to summary dismissal for gross breach of factory rules is preserved, but I am even more concerned that the right of suspension should be preserved. Many employers prefer suspension from work for a very short period where there has been a breach of factory rules or misconduct to using the much more serious practice of dismissal.
I should like now to refer to Clause 4. My friends and I interpret the phrases "terms of employment" and "terms and conditions of employment" as relating solely to contractual terms of employment. I think it is very important that there should be no room for misinterpretation of this clause. To the layman, at least, "terms and conditions of employment" might seem to embrace benefits that are received not of right but as privileges over and above the contractual terms of employment. In a sense, these are Committee points, and I will not waste further time on them, but I think I have given enough examples.
I should like now to turn to Schedule 1 and Schedule 2, in which there are some rather loose drafting examples—for instance, "by arrangement or custom ". What is "custom"? It is not the custom to sit in this House on a Friday, but we are here; and there are one or two things like that which will have to be dealt with on Committee stage. If this Bill is to be a success there must be no room for dispute or for the necessity to bring in lawyers. The noble Lord, Lord Williamson, mentioned his own fear in regard to this matter. My friends and I have discussed it, and we have real fears that there are still points in the Bill which need tidying up if we are to avoid these ghastly disputes which aggravate and disturb otherwise good relations in our factories.
12.55 p.m.
LORD SHACKLETON: My Lords, all our debates on industrial affairs in this House are, I think, good ones, and I say that having listened to most of them and heard noble Lords like Lord McCorquodale of Newton, Lord Ampthill and Lord Robertson of Oakridge on other occasions. We expect a degree of agreement between us that we should like to think existed in industry; and it is quite clear that my noble friend Lord Williamson and the noble Lord, Lord McCorquodale of Newton, are very close together. Unfortunately, however, industry in practice does not reflect what I would frankly call the progressive views of noble Lords in this House on these matters. I intend to speak briefly. This has been a good debate, and we always enjoy hearing the noble Lord, Lord Carrington, who introduces anything with which he has to deal with rapidity, clarity, efficiency and all the desirable qualities. Of course, I disagree fundamentally with him when he says that it is a short but important Bill. It is a short but unimportant Bill. Nor does it reflect the practice in the most progressive firms. In fact it fails to do this.
I wish to deal with two main points, because some other interesting points I feel will be more efficiently dealt with in Committee. First of all, the proposals are clearly not good enough as a standard for a progressive firm, and what one is always afraid of in legislation of this kind is that people will tend to regard a minimum as a ceiling. It is also a little difficult to discuss the Bill without going into the redundancy question, and I was very interested in the remarks by Lord Layton and the interesting reference he made to the European situation. In many respects we are sadly falling behind European standards, not only in this matter but in other aspects of welfare.
If I may touch on redundancy, I would say that most progressive firms in this country give one week's notice for every year of service, and if it is a good contract—and this is the case in my firm, where anybody with over five years' service can have a six months' contract—it will add up to over a year. But even that will not make up for the really shattering disaster this represents to long-service employees. This is unavoidable, to some extent, in industry, because technological changes
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take place and individual firms or nationalised bodies must have regard at some stage to profitability. Until we have proper transferred pension arrangements—this is not relevant to the Bill, but it is relevant to the subject—and a much wider understanding of this matter, we are not going very far.
I understand, however, that this Bill is not to be regarded as the last word on redundancy. If it is to apply to the conditions that should be enforced by good employers, it is again not good enough. I and a number of employers think that once a man has been employed, say, for five years it ought to be virtually contrary to fundamental policy to terminate his services. It may be that it is necessary to establish some degree of review or control, and this calls for greater refinement of management than is yet possible; but the time ought to come—and there are firms that apply this—when, after a period, employment is permanent, unless there is some really serious falling-off. If there is serious falling-off, then the highest authority in the firm ought to be sought before termination of service. I also feel that after five years a longer notice period than a month is desirable. One other point is that many firms make redundancy payments in a way in which the payment does not rank for tax, and therefore the week's pay may well be higher in this respect, especially if it is an ex gratia arrangement. I suppose when we have formal redundancy arrangements such payments will be taxable. That is a point of some interest.
I should like to turn to the position of the employer. There is no doubt that this Bill adds once again to the troubles of the employer in interpreting legislation. I handed this Bill over to one or two bright people in my office and said, "How will this affect my firm?", and I found they made a number of misinterpretations. I may say that I have the advantage, as has any large organisation, of expert legal advice in the firm, and we shall no doubt eventually get it right, but I think a large number of people will not realise for a long time that the piece of paper that is handed to them is not a written contract, but is merely a statement of terms and does not have any contractual significance. I hope the Government will give some attention to advice on interpretation, though here

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again bodies of employment associations, trade associations and trade unions will undoubtedly bear the main burden of interpreting these particular clauses.
There is one small point. I see that in a latter clause of the Bill the Conservative Government's curious prejudice on the subject of families comes in again, as it did in the Shops and Offices Bill. I really do not see why, when people employ members of their own family, ordinary protective provisions of this sort should not apply to them. It was only two days ago that the noble Baroness, Lady Summerskill, had some encouragement from the Government about making the statutory position of married women in regard to property rather better. If the Government are prepared to see that it is necessary there—and all history teaches that it is necessary—I cannot see why we must have this ridiculous clause always excluding husbands, wives, sons arid daughters.
My Lords, I cannot say that I am too enthusiastic about the Bill. There is an interesting conflict which has arisen, which it is suitable to discuss, and that is the point of view of my noble friend Lord Williamson, as compared with that of the noble Lord, Lord Robertson of Oakridge. Doubtless we shall have more opportunities to discuss the rôle of Government and the rôle of the outsider. There is no doubt that most progressive employers and trade union leaders prefer to settle their problems themselves. How far the Government might have proceeded in this legislation, in relation only to particular industries—those industries, for instance, in which wages councils exist—and might have sought to do this through wages council-type legislation, I do not know. My Lords, certainly we shall not hold up this Bill. If there is time, we hope to improve it a little further.
1.3 p.m.
LORD CARRINGTON: My Lords, as your Lordships know, there is another important debate due to take place at two o'clock, and I think your Lordships will forgive me if I do not answer in great detail all the points which have been made, though, of course, I will look into them very carefully. On the whole, I do not think I can complain about the reception this Bill has received, although the temperature varied a little
1526
from one side to the other; I should have put on a light summer overcoat in the case of the noble Lord, Lord Williamson, and a Palm Beach suit in the case of the noble Lord, Lord Robertson of Oakridge. But, on the whole, I think your Lordships agreed that this will be a useful Bill.
The noble Lord, Lord Williamson, and others of your Lordships, complained that there has been inadequate consultation. But, of course, both the T.U.C. and the British Employers' Confederation were consulted in the summer of 1962 about the general principles that might be incorporated in a Bill of this kind. Since then there have been many further discussions with these bodies as well as with outside interests, although, of course, it is perfectly true that they were not consulted jointly on the National Joint Advisory Council. Of course, when introducing legislation no Government can ever win, because if you introduce a Bill which is so perfect that you cannot amend it in any detail then the Opposition complain that you are rigid and will not take their advice about anything, but if you introduce a Bill on which you are prepared to accept Amendments from both sides of the House you are told that the legislation which you have introduced was insufficiently conceived and badly drafted, and that you should not have brought forward legislation of that kind. So you cannot win. But I think it would be true to say, as my noble friends Lord Jessel and Lord McCorquodale of Newton said, that the Minister of Labour and his Parliamentary Secretary were prepared to accept Amendments on the Committee and Report stages of the Bill in another place.
My Lords, I, too, was very glad to see once again the noble Lord, Lord Layton, taking part in debates in this House. He said—and I was glad he said it—that he thought the Bill would do good. He largely confined his remarks to the problem of redundancy, and he will, I am sure, have heard what I said in my original speech, which was that the Government are contemplating measures to improve measures to meet the problems of redundancy. The Minister of Labour is at the moment discussing with representatives of employers and workers in both the public and private sectors of industry on his National Joint Advisory

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Council, what measures we can take to deal with these problems; and, as I have said, it is quite on the cards that legislation will be introduced later on.
I noticed what my noble friend Lord McCorquodale of Newton said about the introduction of a simple leaflet. I think the noble Lord, Lord Shackleton, opposite, also took the view that this was a complicated Bill and that there might be some advantage in introducing a simple leaflet explaining its provisions. I can, of course, give no undertaking of that kind without consultation with my right honourable friend, but I certainly will look into the suggestion, as I will look into the anomaly which both he and the noble Lord, Lord Robertson of Oakridge, raised about the question of sickness benefits. Perhaps we might leave these matters to a later stage of the Bill.
My noble friend Lord Jessel was good enough to tell me before the Second Reading that he was going to raise a point about laying off workers in a factory affected by strike action taken by other workers. The preliminary view—and we can discuss this again at a later stage—is that collective agreements very commonly provide for guaranteed wages for workers who have to go on to short time or have to be laid off for any reason. These agreements usually provide for the guaranteed wage to be suspended if the short time or laying off is due to certain specified circumstances, including, almost invariably, strike action by other workers in the same establishment or, in some cases, anywhere else. The notice provisions of the Bill will not affect the right of employers to lay off workers temporarily without notice in circumstances where the contract of employment permits. A temporary lay-off of this kind can be distinguished from termination of employment, and the Bill applies only where termination is concerned. But this is only a preliminary view and, as I say, perhaps we might discuss this question at a later stage.
My noble friend Lord Ampthill, in his interesting speech, made one point in which he suggested that, because the Bill was silent on the question of notice after a month's employment, it might be considered that the Bill itself made the contract void. But, of course, all the Bill is doing, as I understand it, is to lay
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down certain minima, and in no circumstances would the sort of contract that he has outlined be void. As regards his other points, perhaps it would be better if I waited until the next stage of the Bill, when we can clear these smaller points up.
Finally the noble Lord, Lord Shackleton, in his speech made one or two interesting observations, and ended up with his usual speech about families and the attitude of Her Majesty's Government to families and family businesses. My noble friend Lord Newton, who, I am glad to say, is to assist me on the Committee stage of this Bill, is the expert on the Government's case on families, and I feel that it would be most unfair if, at this stage, and at ten minutes past one, I were to make his speech for him. So perhaps there again we might wait until the next stage of the Bill. I agree very much with what the noble Lord, Lord Robertson of Oak-ridge, said in the course of his speech. I think it is the duty and the right of the Government to legislate in this sort of field. I believe that this Bill, short though it is, will bring our national practice up to the better standards of the good employers. I therefore commend it to your Lordships and ask that you give it a Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.
[The Sitting was suspended at 10 minutes past one and resumed at 2 o'clock.]

MATRIMONIAL CAUSES AND RECONCILIATION BILL
2.0 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—(Lord Shackleton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AIREDALE in the Chair.]
LORD SILKIN LORD SILKIN moved, to insert as a new Clause 1:
Additional grounds for divorce
".—(1) A petition for divorce may be presented to the court either by the husband

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or by the wife on the ground that the parties to the marriage have separated and thereafter have lived apart for a continuous period of at least seven years immediately preceding the presentation of the petition, and there is no reasonable probability of cohabitation being resumed.
(2) A petition may be presented on the ground aforesaid (in this section referred to as the ground of separation') notwithstanding that the separation was brought about by the action or conduct of one of the parties, whether constituting desertion or not, and notwithstanding that there was in force between them at any material time a decree of judicial separation or an order having effect as such a decree or an agreement to live apart.
(3) A decree of divorce shall not be pronounced on the ground of separation if it appears to the court that by reason of the conduct of the petitioner, whether before or after separation began, or for any other reason it would in the particular circumstances of the case be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree on that ground.
(4) Without prejudice to subsection (3) above, the court may refuse to pronounce a decree on any petition on the ground of separation until the petitioner has made such provision (if any) for the maintenance or benefit of the respondent and any child to which section 26 of the Matrimonial Causes Act 1950 applies as the court thinks proper in the circumstances of the case.
(5) Where petitions for divorce presented by both parties to a marriage are before the court, the court shall not, upon either of those petitions, pronounce a decree on the ground of separation if it can properly pronounce a decree upon the other petition on any other ground; and for the purposes of this subsection an answer praying for divorce shall be treated as if it were a petition for divorce.
(6) Subject to the provisions of this section the court, if satisfied on the evidence that the case for a petition presented on the ground of separation is proved, shall pronounce a decree of divorce, and if not so satisfied shall dismiss the petition; and section 4 of the said Act of 1950 (except so much of subsection (1) as requires the court to inquire into the facts alleged and any counter charge) shall not apply to such a petition."
The noble Lord said: I beg to move the Amendment standing in my name on the Paper. This is a matter of very great importance, and one which, judging by the unusual attendance that we shall presently see in this House, has aroused a good deal of interest. It is a matter on which this House is always at its best—when discussing moral, equitable subjects. We are particularly pleased to see a very full Bench of right reverend Prelates, including the most reverend
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Primate—an unusually full Bench—although I would imagine that they have come much more to bury me than to praise me. Nevertheless, I welcome their being here, and I will certainly listen with the greatest interest and attention to what they have to say, because I think we shall all agree, whether we are in accord or not, that they have a point of view which ought to be expressed in a debate of this kind.
We are all in agreement about one thing: that we wish to maintain the sanctity of marriage, and that we desire the happiness of our people in married life. I imagine that there are quite a number of people who will not agree with what I am going to put forward, but I would ask them to accept the fact that, in putting forward these views—and this also applies, of course, to those who support me—we are quite as sincere in our view as those who are opposed to us. I hope we can discuss this subject on that level, without impugning the sincerity or the motives of either side. My Lords, with that introduction I am afraid I am going to ask for your indulgence, because I toyed with the idea of making a very short speech—
THE EARL OF LONGFORD: Hear, hear!
LORD SILKIN: I know my noble friend would prefer that—but I came to the conclusion that this is an important matter, it is a long and complicated Amendment, and that I ought to deal with it fairly fully.
This conception of a marriage being voidable at the end of seven years of separation is, of course, not a new one. It was, so far as Parliament is concerned, introduced in a Bill by Mrs. Einene White in 1951, but she subsequently withdrew the Bill on the assurance that a Royal Commission would be set up to look into the whole question. This Commission has in fact sat—it sat for four years—and reported. The Report is available, and I imagine a great number of your Lordships have read it. Then there was a Bill introduced some months ago in another place by Mr. Abse, the Matrimonial Causes Bill, which included a provision similar to the one I have put down. I think he agreed, as the Bill proceeded, that his own language was not entirely satisfactory, and there was incorporated

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on the Second Reading an Amendment to his provision, which was very similar to the one that was down, and is in identical terms, I think, to the one I have down as an Amendment. On the Report stage of the Bill, Mr. Abse appears to have got cold feet, because he withdrew this clause with a view to getting agreement on the rest of his Bill. The rest of the Bill, with which we are not concerned at this moment, provides, broadly, for reconciliation, and for enabling parties to get together again for a short time without prejudice to their rights. I am not dealing with that at this stage: but, in the hope of saving the rest of his Bill, Mr. Abse withdrew this, I think, important and vital clause.
I come now to the Amendment. It is a long Amendment with a considerable number of subsections; but, broadly speaking, it provides that where a husband and wife have been separated and thereafter have lived apart for a continuous period of seven years or more, and where there is no reasonable probability of their ever coming together again, then either party may petition for a divorce.
LORD BOOTHBY: My Lords, may I interrupt the noble Lord for one moment on a point of clarification? It is clear, is it not, that the court must satisfy itself that there is no reasonable chance of reconciliation?
LORD SILKIN: Yes, of course, that is so; but the Amendment itself contains a considerable number of restrictions on that, and I want to say a word about them. Of course the court has to be satisfied, as the noble Lord, Lord Boothby, has said, that there is no reasonable possibility of their coming together again, just as it has to be satisfied that they have been separated continuously for seven years or more.
LORD HAWKE: My Lords, may I ask the noble Lord to clarify a matter there? The court has to satisfy itself upon some future action of two parties. It presumably can only take their own word for it, There is no other method.
LORD SILKIN: This is no different from any other matter that comes before a court. The court hears evidence and the court makes up its mind on the evidence presented to it. The petitioner
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will make his case, and if he does not make his case then, of course, the court has the right to reject it. But these are among several safeguards that I have put down. For instance, in subsection (3) the conduct of the petitioner can be questioned. A decree will not be pronounced
"if it appears to the court that by reason of the conduct of the petitioner, whether before or after separation began, or for any other reason it would … be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree on that ground".
So there would be no question of a person acting in an improper way with a view to getting a divorce without the judge having an opportunity of expressing his view.
Then there is subsection (4) of the Amendment, which provides that no decree shall be made until provisions satisfactory to the court for the maintenance of the respondent or child of the marriage have been made. That applies particularly, of course, in the case of a husband petitioner against a wife. Further, where the petitioner has been guilty of adultery he or she (because we have to recognise that it is not only the husband who commits adultery) will have to ask for the discretion of the court after a full disclosure; and it must be obtained. I submit that it will not be easy to surmount all these conditions and that a divorce will not be granted as a matter of course. The judge will have to be satisfied on all these matters before he grants a decree.
In view of what has been said I would suggest that no sane person would embark on marriage in the expectation of getting an easy release at the end of seven years by instituting proceedings. I do not think we need fear that this particular fact will loosen the marriage ties. Indeed, it would be much easier for a person who wanted to get a divorce not to wait seven years but to embark on a process of cruelty, desertion or misconduct and virtually force the other side to take the proceedings.
BARONESS HORSBRUGH: Would the noble Lord allow me to interrupt him?—I did not follow him. If the other person, say, in this case, the wife, disapproves altogether of divorce, is not the whole point of this that the husband might be cruel and he might desert her, but still—and this is the point of difference over

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this particular Amendment—having said she is not in favour of divorce, she is compelled to be divorced?
LORD SILKIN: That is a very pertinent remark; but I would ask the Committee to let me make my case. Obviously, I have not overlooked this point; it is a pertinent one and in due course I shall reach it. I am at the moment in the course of putting my case to the Committee. Later I will deal with some of the difficulties and objections that may arise.
This clause would give a chance to hundreds of thousands of couples, who are at present living in a state of "unmarriage", to start a new married life, and would thus help to stabilise the marriage institution and reduce the number of unmarried people living this kind of life. It would, particularly, enable husband and wife to remarry where they have separated by mutual agreement. In cases where individuals have been separated for seven years or more, they are, as the Committee knows, barred from taking proceedings for divorce because the separation has been by mutual agreement; and they are barred for all time. Moreover, there is the question of illegitimacy. I know that some noble Lords do riot like this argument, but it is a fact that some 40,000 children are born every year to parents who are cohabiting but are not married. It has been estimated that there are something like 200,000 children to-day under 16 years of age who are the result of these unions. If this Amendment were carried it would enable the parents, where the divorce is granted, to marry and to legitimise their children; and this' I think is a very important object of the Amendment.
Now I should like to come to the aspect with which the noble Baroness wants me to deal. What are the objections to what seems a sensible and sane principle in the public interest if we believe in the institution of marriage? The first is that this Amendment introduces a new and undesirable principle: that a petition may be presented by the guilty party; that divorce may be obtained against the wishes of the innocent party. I think that is the point that the noble Baroness was making: that we are creating a new principle by departing from the idea of the matrimonial offence which, at present, is supposed to be the
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sole ground for divorce; and that this will have a serious effect on the institution of marriage. All these objections, in my view, come logically and understandably from those who, on religious or other moral grounds, are completely opposed to divorce. But I find it difficult to understand such objections from people who accept the principle of divorce. And it has been the law in this country for three quarters of a century, and is now an accepted factor in our social life.
I would ask the Committee to realise that divorce is not merely a matter of a guilty party and an innocent party. That may be so in law; but in general, where a marriage has broken down, I would ask the Committee to consider whether there is necessarily an innocent and a guilty party. Is it always that one party is black and the other white? It is generally conceded that something like 75 per cent. of the divorces are in fact collusive. I know that should not be so and, in the presence of the noble and learned Lord, Lord Hodson, I should hesitate to say that he has any knowledge of it—of course he has not. But it is the fact; and I can assure him that the majority of divorces are, in fact, collusive, in the sense that both parties agree to it. If there is a defence, the respondent does not put it up, because he or she wants the divorce as much as the other party.
Moreover, since this is going to be partly a question of femininity, I would say that at least half the divorces are instituted by women—by wives against husbands. It is not the other way. Then where the petition is on the grounds of adultery, it is the fact that in a great many cases (I hesitate to say the majority) the petitioner has to go to the court and ask for discretion on the grounds of his or her own misconduct; and that plea is generally granted. They have to make a full disclosure and the court, before granting the divorce, must take into account the fact that the petitioner has himself or herself been guilty of misconduct. I would ask the Committee to say who is the guilty party in such cases, in which both parties have to accept the fact that they themselves have committed misconduct.
There is another ground for divorce. A husband or wife may bring a divorce petition against his or her spouse on

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the ground of incurable insanity. Is that a matrimonial offence? I hope that no one would argue that becoming insane is an offence. Nevertheless, it is a ground for divorce. Broadly speaking, on all these grounds for divorce it is the view of the community that the marriage has broken down. There can be no real marriage where one party is cruel to the other, or one party becomes insane, or where there is desertion.
Then there is the question of the imposing of divorce on an unwilling spouse after seven years' separation. A spouse may be unwilling for a variety of reasons. He may have a conscientious objection to divorce. That is recognised and accepted in my Amendment. Subsection (3) provides that that is a factor which a judge can take into account. My Amendment also recognises that the conduct of the petitioner may be so bad in all respects that it would not be right to give him a divorce.
THE EARL OF LONGFORD: My Lords, may I ask my noble friend, for clarification, where it is recognised that a religious scruple, for example, should be taken into account?
LORD SILKIN: My Lords, there are no words about religious scruples, but there are these words
"…. it would in the particular circumstances of the case be harsh and oppresive to the respondent or contrary to the public interest …."
As the noble Earl knows, this is a matter which was discussed a great deal in another place and it was generally recognised that this was a factor which should be taken into account. It was a matter of finding the appropriate language, and I understand that the Solicitor General in another place accepted that these words covered religious scruple. If there are no legitimate grounds for a respondent's objection to a divorce, why should not a divorce be granted on these grounds? After all, we recognise that there are spouses who are spiteful, dog-in-the-manger-ish, who want to get their own back, vindictive; and if there are no grounds of conscience for objecting to a divorce—and the hardship point is dealt with in subsection (4) of my Amendment—why should not the other party, however he has acted in the past, unless he has acted very badly in the opinion of the judge, have an opportunity
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of happiness by marrying again in the future? Is it so much worse to have been separated for seven years than to have committed one act of misconduct upon which a divorce is obtainable?
Even if this is a new principle, I would remind your Lordships that a number of new principles were accepted in the 1932 Act—it is usually called the Alan Herbert Act. Parliament accepted the principle that in future divorce would be available on entirely new grounds—for example, on grounds of desertion and cruelty. The law of divorce has had to be changed with the times, and it will continue to have to be changed. If it is desirable that this particular form of Change should be made, then I would submit to the Committee that the fact that this is a new principle should not deter us from agreeing to it.
There is an Amendment on the Marshalled List in the names of the noble and learned Lord, Lord Hodson, and of my noble friend Lady Summerskill. The purpose of that Amendment is that a divorce should not be granted on these grounds except with the consent of both parties. On the face of it, that would seem to me to be accepting the principle of my proposed clause—that is, that there should be divorce on the ground of permanent separation for a period of seven years—and that if my Amendment were accepted, that would be acceptable. That is how it appears to me in form. I would only say about the Amendment that, if the noble and learned Lord were prepared to add to his Amendment that such consent is not to be unreasonably withheld, then I think we should all be in complete agreement on the matter. But I gather that we are not going to discuss his Amendment to my Amendment to-day; that there will be a straight vote on the question of whether or not this Committee is in favour of the clause as it stands, and that the noble and learned Lord's Amendment will be moved at a later stage if it becomes necessary. I would say that subsection (3) deals with the question of unreasonably withheld consent, because, if all the conditions of the subsection are satisfied, there would be no reasonable ground left for objection.
I am far from saying that there will not be a few cases which will be hard cases and which cannot be dealt with by

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my Amendment, but they will be very few indeed, and they will be far outnumbered by the persons who will benefit if the Amendment is accepted. I move this Amendment, sincerely believing that it will strengthen and enhance the marriage institution, and that it will give new hope and life to many thousands of men, women and children and will remove the stigma of illegitimacy from a large number of completely innocent people. I beg to move.
Amendment moved—
Before Clause 1, insert the said new clause—(Lord Silkin.)
THE DEPUTY CHAIRMAN OF COMMITTEES: I understand that the Amendment to the Amendment is not moved.
LORD SHACKLETON: As Member in charge of the Bill, may I say that it is our hope to-day to complete the debate on the new clause only and that we should not expect to take any further stages of the Bill. After discussions between the noble and learned Lord, Lord Hodson, my noble friend Lady Summerskill and myself, it was agreed that it would be for the convenience of the Committee to have a straight debate on the clause as it stands. This, of course, will not deny the noble and learned Lord the opportunity either of speaking, to any particular argument he may have on his Amendment or, if the clause remains on the Bill after to-day's debate, of moving his Amendment. Of course, if the clause is out, he will not want to proceed further with it.
THE DEPUTY CHAIRMAN OF COMMITTEES: That may be so, but my duty is to call Amendment No. 2 at this stage.
2.30 p.m.
LORD HODSON: After consultation with the noble Baroness, Lady Summer-skill, who is my staunch ally in this battle, and also with other Members of your Lordships' House who are of other opinion, I have decided not to go further with the Amendment to the Amendment, because I think, and we all think, that this would really confuse the issue. The issue is a straight one. We all understand where we are. If we may take it that the Amendment to the Amendment is withdrawn, I will, if I may proceed, with my speech.
THE DEPUTY CHAIRMAN OF COMMITTEES: Then Amendment No. 2 is not moved, and the question before the Committee is that Amendment No. 1 be agreed to.
LORD HODSON: The issue, as I said just now, is a simple one, and sooner or later we shall have to come down to earth. I think that a good many words have been used—with all respect to my noble friend Lord Silkin—which really do not help very much. The real issue in this case is: are we going to accept the finding of the Royal Commission, which sat and laboured for about four years and at the end of it all came to the conclusion that if we are to have divorce the basis upon which divorce should be granted should be the matrimonial offence? That decision was arrived at by a majority of eighteen to one. I should like to take this oportunity to pay tribute to my noble and learned friend Lord Morton of Henryton, who for those long, and perhaps dreary, years presided over the deliberations of that Commission. The members were men and women drawn from all sorts and conditions of life; they heard evidence from all sorts of people, and that was the conclusion they reached.
I should, in order to be honest, say that after they had done that they considered the opposite theory. For, after all, there are only two theories alive on this problem—namely, are we going to act on the matrimonial offence, or are we going to act on the breakdown of marriage theory? That is the fight. On the breakdown of marriage theory, notwithstanding the conclusion which the Royal Commission had reached by eighteen to one in favour of the matrimonial offence, they were divided. That strikes me, on the face of it, as rather inconsistent; but that is the position so far as the Royal Commission left it.
The grounds for divorce which are material are adultery, cruelty and desertion. I have to accept the point made by my noble friend Lord Silkin that that principle has been broken into by this: that since 1937 it has been open to a spouse to get a divorce on the ground of the incurable insanity of the other spouse. But that is really because the other spouse is incurably ill in a particular way, and you can divorce her. That, I think, is contrary to the principle that

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I have stated, but it is the only inroad upon that principle which has so far been made. I, and those who think like me, are anxious that no further inroad should be made. We say, having, I hope, the same ideals as those who have an opposite opinion, that the institution of marriage should, so far as possible, be maintained. In my opinion, this proposal would involve a further great blow on that institution—and I say "further great blow" because each increase in the grounds of divorce not only increases the number of divorces but, contrary to the expectations of those who advocate more grounds, increases the number of legal separations as well; and the number of illegitimate children has increased, too. One would have thought, if the argument put forward on the other side were correct, that easing the situation in favour of those who wanted divorce would produce a smaller number of legal separations in magistrates' courts and a lesser number of illegitimate children.
Having made those assertions, I should try to justify them by statistics, though I am as well aware as all your Lordships are that with statistics one can cheat, and I do not want to do that. I take them from the speech of the President, who is a man whom I think we all respect. He is an experienced politician as well as being the head of the Division which now has to deal with these cases; he has access to the relevant figures and would be the last man in the world unfairly to select them. One has to keep clear of periods when exceptional factors are at work. A great war will increase the number of divorces; changes in legislation will increase the number; and an addition to the number of Judges will also increase the number. So statistics have to be carefully chosen. But this is what the President said:
"In every one of the five years 1958 to 1962 there was an increase in the number of divorce petitions filed. They rose from 25,584 in 1958 to 33,818 in 1962."
These figures are not quite the same as those given by the Solicitor General in another place, but I am afraid I am unable to explain the differences. This year, the President said, the figures are up again on the comparable period last year. In the years 1955 to 1962 (except for one when a special procedural factor was at work) there was a steady increase
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in the divorce decrees made absolute. They rose from 22,000-odd in 1958 to 28,000-odd in 1962.
Then I come on to the argument that is sometimes put forward that separations will decrease as divorce increases. The figures show that after 1923, when women first were enabled to get a divorce on the ground of adultery alone, there was a rise, not a fall, in the number of new maintenance and separation orders, both in absolute numbers and expressed as a percentage of married couples. The same is true of the period corresponding to the rapid rise in divorce petitions to which I have already referred.
Then there is the argument from bastardy. No doubt there are some cases where children born of extra-marital unions could be legitimated, but, viewing society as a whole, greater facilities for divorce have been accompanied by more illegitimacy. Here I must quote from the Registrar General's Report of 1960. He said:
"In recent years there has been a noticeable increase in the number of illegitimate and premaritally conceived legitimate maternities"—
I apologise for the long words—
"and also of the relevant rates…while the legitimate maternity rate for all ages under 45 was 14 per cent. higher in 1960 than in 1952 … the illegitimate maternity rate has risen by 50 per cent. between 1952 and 1960"
and
"the rate for 1960 exhibits a sharp rise above the 1959 rates."
The figures were 28,000-odd in 1959 and 43,000-odd in 1960. In 1961 this rise was sharper, there being 49,000-odd illegitimate births in that year. These figures, the President pointed out, are the more startling when one bears in mind the increasing knowledge and practice of contraception. So much for statistics.
LORD SHACKLETON: Before the noble Lord leaves the statistics, can he give us the actual figures of judicial separations?
LORD HODSON: I should have thought that the judicial separations were very few. The separation orders I was speaking about I have in the speech of the President, but I have not copied them out. I have seen them, and the figures showed a rise which is rather surprising. It is surprising that there should be a rise in separation orders—and I do not mean

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separation orders in the technical sense, but the maintenance orders made in magistrates' courts over the years.
Where does the opposite view lead? Does it not lead first to this: that logically there is absolutely no necessity for any judicial intervention in divorce at all? If you are going to talk about the criterion being the breakdown of marriage, who is better able to decide that than the spouses themselves? Why is a Judge a better man for that than the spouses themselves? Or if it be said that we must have somebody, why select a Judge to determine whether or not the marriage has hopelessly broken down? I know it is said, "Oh, well, we are not going quite so far as that. We are only talking about seven years' separation." But the objective, surely, is to substitute the criterion of the breakdown of the marriage for the matrimonial offence. And this is only the beginning. In conversation with those who hold the opposite view to myself, I think that they are quite prepared to admit this: that all this stuff about matrimonial offences is, if I may borrow a word which was used very effectively in this House by the noble and gallant Field Marshal (who I see in his place), Lord Montgomery of Alamein, all poppycock. We do not need to bother with that; just find out if the marriage is broken down and that is good enough.
The Russians are a logical people, and in the early days after the Revolution I remember a Russian lawyer giving evidence in our courts to the effect that marriage, like birth and death, was just a fact of life, like other facts, and there was no particular formality required for its beginning or its ending. But I believe that they have found since then that that was an unfortunate way of running their country, and that the family require protection by, at any rate, registration, and that some restriction on the de-registration of marriages was found necessary.
I have already, on Second Reading, expressed my objection, to which I think I ought to come at once, to this particular proposal, but it is not necessary to say very much. The point was very sharply and shortly put by the noble Baroness, Lady Horsbrugh, this afternoon, and, indeed, by the noble Baroness, Lady Summerskill, at Second Reading: that this is really a rich man's charter.
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It is a husband's clause and it is going to be available only to well-to-do husbands. These so-called safeguards are quite illusory. How is the woman who is the wife of a poor man to be compensated financially for the loss which she has to suffer by enabling the husband to go off with another woman and start a new marriage with her?
And why, I ask, apart altogether from financial considerations, which have already been emphasised, and will no doubt be emphasised again, should a woman be dragooned into divorcing her husband? I do not mind whether she has religious objections or other objections, but I am supposing that she married the man when they were both young and that she intended to stick to him. He is ageing—and I speak of anybody over 45 as ageing; he leaves his faded wife and goes off with a younger woman. I am being laughed at; but while that is, of course, a special case, it is not an unusual one; and it is a case which I think was envisaged also by the noble Baroness, Lady Summerskill, in her speech on Second Reading. That is what very often happens. Why should this wretched woman be told that she has to divorce her husband? Or, indeed, why should she be told that she has to go to court and explain why she will not divorce him? People do not like coming to court; and least of all do they like coming to the divorce court—they hate it. Yet these unfortunate women are to be told that they must come and explain why they will not divorce their husbands. Moreover, according to this Amendment which the noble Lords have put forward, they are told that if they can satisfy the court that it was all the other person's fault then they must get a divorce. So the judge is going to be asked to try something which happened seven years ago, which is a little rough on the judge and on the parties who are supposed to dig up in their memories the quarrels they had seven years before the proceedings.
I do not want to delay your Lordships, because I know that there are a great many others who wish to speak; but I feel that I ought to say something about the illegitimate child. I must accept that in this country—though not I think so much in other countries—there is some

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stigma attached to illegitimacy. The absence of a father is, of course, a handicap; but none but a fool could possibly cast stones at a man because he was born a bastard, any more than because he had red hair, since he could not have had anything to do with the circumstances of his birth. It does not seem to have troubled William the Conqueror much. I know that he put out the eyes of citizens whom he took at Alençon because they hung hides of beasts on the walls of the town, thereby indicating the humble birth of his mother, the daughter of a tanner. But what annoyed him in this action was the reference to the humble birth of his mother and not his own bastardy.
Attention must, I agree, be paid to the argument that some children may get legitimated and may have formal parents allied in matrimony who will not be so allied to-day. I know very little about this from a sociological point of view. I have made such inquiries as I can among adoption societies and organisations of that kind, and perhaps I may quote from a book by Miss Virginia Wimperis, a lady who is a qualified sociologist and knows a great deal about this subject. In her book, The Unmarried Mother and her Child she has written:
"Divorce could be made easier, so that more of the parents who now set up unofficial families could marry and have legitimate children instead. It is quite possible that this would do more than any other single factor to reduce the illegitimacy rate…. If, however, divorce were made easier or allowed at the instance of one partner, whatever the other wished, the stability of many marriages would be undermined and the happiness of many other children—the existing and future children of marriage—imperilled. Nearly every marriage has at least some moment of stress when for a brief while the partners rely almost solely on their vow and intention of permanence and society's insistence that marriage should endure. Many good marriages would founder in the absence of this support."
I ask your Lordships to vote against this Amendment.
2.46 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, it is known to everyone that the Churches have definite beliefs about marriage and divorce, and it has been suggested (though not here to-day) that there is a wish on the part of churchmen to impose those beliefs upon the law
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of the country. The truth is this. While the Churches have their beliefs and standards which they urge their members to follow, and teach that they can follow with the help of God's grace, they accept the fact that a great many citizens do not share their beliefs and that this is reflected in the divorce laws of the country. However, the Churches are concerned with what is likely to be good and right for the country as a whole, and it is from that concern that I, for one, express my views about the new clause now before us.
We have the problem before us now, the problem concerning divorce: because there is something very wrong in the country, and this has been growing. Too many marriages break down. There are too many strains in families; too many illicit unions, both before and after marriage. Why is this? It is largely because of the many tensions about sex and marriage to which so many people, especially, perhaps, young people, are liable. I welcome wholeheartedly the greater openness about sex which exists to-day; for sex can be a good and beautiful thing, and the wrong kind of hush-hush attitude about it can do harm. Yet there is in much of the population a preoccupation with sex, a lack of discipline about it and so many temptations to incontinence on all sides, especially as the physical dangers of incontinence seem not to be so great as they once were. Hence, the background from which marriage is approached by many people is a confused one, and too many couples enter marriage with the scales already weighted against their making a lifelong success of it. The status of marriage is undermined in the minds of so many of the people, and because its status is undermined the tendency increases for couples to approach it without enough understanding and dedication to its true meaning. That is the background to our questions about divorce. I would urge that, while we should view this question with great sympathy for those in hardship through broken marriages, we should also view it from the angle of the status of marriage for those who approach it.
So I come to the new clause moved by the noble Lord, Lord Silkin. The plea is made that it will remove hardship from many whose marriages have broken down, and that it will remove hardship from children at present illegitimate.

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These are important pleas, and I will come back to them, because it is impossible not to have great sympathy with distress of any sort. But I would plead that we consider this other question: what effect will the clause have upon the status of marriage, its essential meaning and definition for those who approach it or are trained for it? And this is a grave question. Divorce after seven years separation, if there is no consent, can involve injustice; and if it is a matter of consent it alters, by reflex implication, the meaning of the marriage covenant. It makes the words "till death us do part" mean in effect "until we ourselves decide that we are tired of one another and agree to end it". At present both the church marriage and the registry marriage are one in stating and implying the intention by the parties to enter a lifelong covenant. It will be very hard to say this is really so if the principle of this new clause is established.
But, my Lords, what is being said on the other side? It is said that at present people whose marriages are broken down are driven to commit a matrimonial offence in order to get a divorce. This is sometimes true, and it is an evil state of affairs. But I think the alternative proposal is a greater evil; that is, that with the necessity of specific offences put on one side there is created an honourable respectable way of ending a marriage—namely by separation or consent. I agree with the nine members of the Royal Commission who said:
"There can be no more subtle temptation to divorce than the belief that there is a wholely blameless way of ending a marriage".
Again, it is said that the passing of this clause will bring to an end the number of illicit unions. It will indeed turn a number of what are now illicit unions into second marriages; and happy ones, too. I appreciate that. But will it reduce the number of illicit unions which come into existence? No, my Lords; that would seem very improbable. The availability of this new ground for divorce will not deter people from entering into illicit unions, for people will be encouraged to do so, secure in the knowledge that after the statutory number of years they will be free to marry. It would also facilitate the designs of a person who had no scruple about breaking up someone else's marriage. If a
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woman wanted to entice a husband away from his wife she would be in a stronger position to do so under this new clause, as she would know that eventually a divorce could be forced upon the innocent wife. And that is perhaps the most alarming of the new possibilities which the clause would create. I believe that these considerations weigh very heavily against the rightness of this clause.
I refer now to the plea on behalf of illegitimate children who, if the clause were passed, would have a chance of becoming the legitimate children of a married home through their father marrying their mother. It would do that. But it would be at the expense of the father's first partner and the children of the first and married union. The easier it is made for the second woman to get regularly married to a man, the more likely she is to take the risk of living with that man until she can get married to him. It is therefore not at all unlikely that more people would be injured by the operation of this new ground for divorce than would be helped by it. Ts it right to try to legitimise children by divorcing someone else?
I have set out the case against this clause, as I see it, with, I hope, due and real sympathy to the motives and feelings behind it. In a letter to The Times yesterday it was asked whether the case of the churchmen who oppose the clause was based only on dogma or on sociological considerations. I would say that the considerations which I have been putting to your Lordships are indeed sociological considerations concerning the deep wellbeing of society. But as to dogma, this is a word which arouses prejudice so let me use the word "belief". In this matter the Churches are not asking to impose their belief on those who do not accept it, for churchmen have already accepted that there is a divergence between their belief and the State's law on divorce. But other people besides Churches have beliefs, and there is still a common ground between them; and it is a gain for this country that wherever a marriage is conducted it is affirmed to be a lifelong covenant. And we have our terrible problems largely because the status of marriage is weakened and the approach of so many people to it is wrong. Do not, my Lords, weaken this status further. Let me put

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it thus: do not, out of motives of compassion, which all of us must feel, cut at the ground of compassion itself. Do not try to meet the hardship of some in such a way as to weaken the security of the many.
My Lords, this is not to say that I am content with the present law on divorce and the operation of the divorce courts. When the recent statement by a number of Church leaders in this country ended with the words:
"We are anxious to examine any measures for reducing the hardships which would not sap the foundations of marriage"
we meant what we said. It is very difficult to see what can be done, but I am concerned that we should try. Is it not, for instance, worth while asking for further examination of the word "illegitimate"? Is it necessary for all purposes—for instance, for the purpose of bequests—that there should be the present distinction at all?
Again, if it were possible to find a principle at law of breakdown of marriage which was free from any trace of the idea of consent, which conserved the point that offences and not only wishes are the basis of the breakdown, and which was protected by a far more thorough insistence on reconciliation procedure first, then I would wish to consider it. Indeed, I am asking some of my fellow churchmen to see whether it is possible to work at this idea, sociolologically as well as doctrinally, to discover if anything can be produced. In Belgium there is a provision for what the law of that country calls divorce by mutual consent. I have been studying the Belgian law, but the procedure in the Belgian law is so hedged about by stage upon stage of reconciliation procedure that it is far removed from divorce by mutual consent as we understand it in our discussions in this country. Indeed, I wonder whether, for our purpose, the title of the Belgian procedure does not rather mislead. Let us examine every possibility of helping the legitimate and, if we can, of improving our divorce laws. But do not let us undermine what is not only the belief of the Churches, but the meaning of marriage as one of the bases of our society.
3.1 p.m.
LORD MORTON OF HENRYTON: My Lords, I seldom address your Lordships and I shall be brief; but as I was the Chairman of the Royal Commission on Marriage and Divorce I thought that, in fairness to my colleagues, I ought to state their views and arguments shortly by way of summary. The Commission had wide terms of reference, but in fact it considered fully the matters arising on this Amendment, and we heard evidence from many responsible bodies and from people with special knowledge of the circumstances, either from social workers or otherwise. I am not, of course, suggesting that we necessarily arrived at the right conclusions, but we did take a good deal of trouble. The Commission were by no means against changes in the law, because we made many suggestions, and no fewer than 69 of them are, I think, part of the law now, wholly or in part. But the Commission firmly rejected by 14 votes to 4 the proposal which is now before this Committee.
I hope I may be forgiven for quoting just three short paragraphs from the Report—I cannot suppose that your Lordships have all read them—which will put the point, in a few words, much better than I can put it at this stage
"To vest in a husband or wife the right to divorce a spouse who ex hypothesi had committed no recognised matrimonial offence and who did not want a divorce would result in great injustice. It would, for example, allow a man who had committed adultery or had been cruel to his wife to leave her and subsequently to divorce her against her will. This would violate a principle which has been long-established in the law—namely, that a man shall not be allowed ' to take advantage of his own wrong'."
That is exactly what is being suggested under this proposal.
The paragraph continues:
"The wife would have a divorce forced upon her. She might have religious or conscientious objections to divorce. In any case, whatever her objection might be, whether more or less reputable, she had married on the footing that, provided she did not give her husband ground to divorce her, she would retain the status of wife for life, with all that implies "—
LORD CHORLEY: Might I intervene, to ask the noble and learned Lord whether he would not agree with me that subsection (3) of the proposed Amendment covers the point that he has just made, and was probably put there for that reason?
LORD MORTON OF HENRYTON: I do not agree with that at all, and I propose to turn to that subsection in good time. Paragraph (xviii) says:
"Nor can we agree that it would be possible to ensure that adequate financial provision was made for the first wife and family. They would usually be bound to suffer if the husband married again, since there are very few men who can afford to support two families, and the man's natural impulse would be to look after the wife and family with whom he was living. It is not easy to make sure that the wife and children are supported when the husband is merely living with another woman and when the wife's claim is at least paramount in law; but their position is much less secure if a divorce has given the husband a second wife and family with a legal right to maintenance. In such cases the court is usually faced with the situation that there is not enough money to go round …"
Paragraph (xix) says:
"The strength of this objection was recognised by a metropolitan magistrate of wide experience who was very sympathetic to a ground of this type, in the interests of the children of illicit unions. He said ' when I was thinking this over last night I wrote … these words: "This is probably too idealistic and divorced from reality". In other words, having thought it over for twelve months and bearing in mind, so far as my own court is concerned, that most of the husbands cannot afford to keep one wife and rely on national assistance, this proposal, I think, would only he applicable to people of substance'."
I come now to subsection (3). If a wife is going to rely upon this subsection as a safeguard, the burden is on her to prove by evidence either evil conduct on the part of the husband (putting it shortly), or certain circumstances which render it harsh and oppressive to her, or contrary to the public interest, to pronounce a decree. If one looks at it from the practical point of view, the wife is required to go through the ordeal of giving evidence. That may cover private and personal matters extending over a large part of the married life. Further, there is the uncertainty that in each case the matter rests on the discretion of the judge. I am sure that the discretion would always be exercised with great care, but it is quite clear to anybody, I think, that it depends on the way the judge happens to look at the particular circumstances. It is not a matter of law: it is a matter of seeing what the facts are and of deciding upon them. I submit that for the wife to be put through the ordeal and to have to submit to this uncertainty is unfair. She
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wants the husband only to abide by a lifelong contract which he has made and which he is now trying to break.
3.8 p.m.
LORD GLADWYN: I speak with the greatest diffidence, and it was with the greatest diffidence that I yielded to the request of the noble Lord, Lord Shackleton, to become one of the sponsors of this new clause. I suppose, therefore, that I ought, so to speak, to declare my interest—in other words, to tell you why I dare to intervene at all in this debate. In the first place, I am a complete layman: I am not a lawyer, and I am not particularly versed in divorce or any other law. I am the child of a broken marriage, however, and my personal experience suggests that it would certainly have been in the interests of the family, and, I should have thought, in the general interest too, if the clause which we are putting forward to-day became the law of the land. I am also a humble, but a sincere, member of the Church of England.
Therefore, it is with the greatest reluctance that I say anything to-day which may perhaps be taken as departing in any way from what has just been said by the most reverend Primate as the leader of the Church to which I belong. But though, of course, the Church has the right and the duty to pay the greatest attention to the institution of marriage, on which our whole social system largely rests—that is indisputable—and though monogamy is rightly, as I think, prescribed both by our Church and our State, I doubt whether the rules governing the conduct of monogamy in our modern society should be approached altogether from a religious point of view. I rather think that in that particular assertion I have the support of the most reverend Primate himself—in his remarks about dogma, for instance. I think we ought, therefore, to regard divorce primarily as a social problem on which all who have thought about the matter at all are fully entitled to express a view—some more entitled than others, like the noble Lord who has spoken last—but all entitled to express a view in the light of their own experience.
The Emperor Justin II at the end of the 5th century, we are told by Gibbon:
"yielded to the prayers of his unhappy subjects and restored the liberty of divorce by mutual

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consent; the civilians were unanimous; the theologians were divided; and the ambiguous word which contains the precept of Christ is flexible to any interpretation that the wisdom of the legislature can demand."
That seems to me to be the point, if I may respectfully say so. Parliament, as the supreme expression of the national will, should from time to time examine our social laws in order to see whether they truly respond to the needs of an ever-changing society.
It seems to me to be no accident at all that, not long after the convulsions of the Napoleonic wars and the industrialisation of this country, the first great Divorce Act was passed in 1857. What may have been well adapted to an agricultural nation of conservative habits was not necessarily well adapted to the age of steamships and trains. Nor, I think, was it an accident that the next important advance on the question of divorce was after the First World War, in 1937, with the passage of the great Herbert Bill. The Second World War has perhaps changed our society, rightly or wrongly, even more than the first, and now is no doubt the moment to bring our law into harmony with what I am persuaded the bulk of our population, if it were clearly explained to them, would regard as simple equity.
Therefore, I should like my congratulations to Mr. Abse to be added to those expressed by the noble Lord, Lord Silkin. It seems to me that Mr. Abse has deserved well of the community in piloting the Bill under discussion to-day through another place, but, as we all know, this was at the cost of having to abandon what I regard as the central feature of his Bill—namely, the clause regarding seven years' separation, the substance of which my colleagues and I urge your Lordships to reinstate in the Bill. In common with them, I believe that this clause, if it ever becomes law, will rectify—or partially rectify—a great social injustice: namely, the labelling as illegitimate of what are estimated to be some 200,000 children, the offspring of what are, in effect, second marriages, though they cannot be so regarded by the law as it now stands.
It is quite true that adoption of this clause will mean a slight departure from the alleged basic principle of the present law, namely, that (apart from madness, non-consummation of the marriage
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and one or two other special cases) divorce can be obtained only as a result of the commission by one spouse or the other of a so-called "matrimonial offence"—that is, adultery, cruelty, desertion and so on; and then only if the offended party wishes to petition and does not decide to condone the offence. But, as we all know, the great majority of present-day divorces in practice rest on that very mutual consent which the law expressly debars. Thus, the present law, as it seems to me, is a mockery and a sham, and whether in these circumstances it really safeguards the holy state of matrimony is open, I believe, to considerable doubt. I therefore suggest that a small departure—it may be said that it may lead to other departures, but this is not necessarily so—from the principles of the present law is not necessarily a bad thing in itself.
The idea that its adoption will open the floodgates and result in a stream of divorces among people who would otherwise not separate seems to me to be an extraordinary delusion. All the adoption of the present clause would do would be to permit, subject to many safeguards, some of which were put forward by Lord Silkin, the legal divorce of people who for many years, often for as long as forty years, have in fact been divorced. The plain fact is that in modern conditions you cannot force people to live together against their will and that in most cases, rightly or wrongly, no moral stigma nowadays any longer attaches to them if they find, for one reason or another, that they cannot do so.
At the same time the Church and the law both assert, rightly, that monogamy is desirable. It is right that one should take this view if one gets married, and that the institution of monogamy should as far as possible be defended. I would not for one moment dispute that. It must not, therefore, be made easy for either spouse to leave the other merely because of incompatibility—though, admittedly, it is very easy to do exactly that to-day if only the feeling is mutual. But to the layman it seems rather curious to assert that if it is shown to the satisfaction of a court (and we must assume that our courts are presided over by learned and responsible men) that the couple have not lived together for no less than seven years—in other words, when it is clear

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beyond all reasonable doubt that they will never reunite, whatever may be said or done—legal validity should not, if it is desired by one party, be granted to a new and what may perhaps be called a de facto marriage.
Apart from anything else, if the deserted spouse—usually, I think, the wife—is supported by her husband, as she should be, the mere conclusion of a second marriage of the husband after a separation of at least seven years will not lessen his liability, or indeed his ability, to continue such support. Nor will the court, under our present clause, be entitled to grant a divorce unless it is satisfied that such support will be forthcoming. If it is not satisfied, the man will not get divorce. Thus the economic position of the deserted spouse cannot be worse under the present clause, and might even be better, since the errant spouse, faced with the possibility of obtaining his freedom, might be persuaded by the court to give more than he had so far been giving—if, indeed, he had been giving anything at all. I know that there may be certain technical difficulties in certain rather special circumstances as regards pensions, but I am assured—and I myself am not an expert—that these can be overcome.
Neither would the moral position of a deserted wife be unfavourably affected. That has been asserted, and I cannot see why it should be. For if, as she very well might be, she is deeply religious and believes in the indissolubility of marriage she could continue to believe in it; there would, after all, be no obligation on her to remarry. Her position would be the same. All she would lose would be the right (and this was mentioned by Lord Silkin) to veto the happiness of her erstwhile partner by insisting that the marriage-breaker shall never be able to confer his name, or title, on the lady who has succeeded her in his affections. On the whole, this possible disadvantage would hardly seem to correspond to the social disadvantage of preserving 200,000 technical bastards, with all the incentive to delinquency which this necessarily involves.
The notion that a divorce imposed on a faithful but abandoned wife would reduce her social status by conferring on her that of a "divorced person" seems to me to be irrelevant in our society. I
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cannot believe that any such "innocent party" would be likely in such circumstances to be struck off the list on any major social occasion. As I said at the beginning, I am not a lawyer, nor, I fear, am I especially devout. I myself believe, however, strongly in monogamy, even though men are frail and there are perhaps only a few of us who have been so fortunate as never to be tempted to err, which, if we may believe our Saviour, is scarcely different from erring. But I am profoundly convinced that it is by example rather than by law that we can best secure the married state, and indeed the family. Nevertheless, the law is necessary, and it is very desirable that it should be fair and known to be fair. It is also desirable that it should if possible, on balance, advance the sum total of human happiness.
By voting for our Amendment this afternoon your Lordships will be securing both of these admirable ends. Nor need you have any apprehension that existing marriages in future will be ruined by the additional proviso which is urged. On the contrary, a number of marriages which are now permanently and irreparably ruined, whatever we may say or do, will be balanced by an almost equal number of marriages which are not now allowed to have any legal existence. One would certainly have thought that, from the general point of view of marriage, this was not a debit but a positive gain.
For all these reasons, I trust that, having consulted your consciences which in this matter should be your sole inspirer, your Lordships will vote for something which, apart from any other consideration, is, I think, calculated to bring self-respect and happiness to many British families while not seriously adding—even if adding a little—to the miseries occasioned by broken marriages which, unfortunately, will always be with us, however much we may improve or try to improve the present law.
3.22 p.m.
BARONESS SUMMERSKILL: I propose to oppose this Amendment. I have listened to my noble friend Lord Silkin and the noble Lord, Lord Gladwyn, who support this Amendment, and I think that those of us who have listened carefully have realised the grave weakness of

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both of their arguments; and that is, that they have not given sufficient thought to the matter. Both of them have adopted an absolutely superficial approach and have not recognised the fundamental problem which is involved in this matter. In the first place, my noble friend Lord Silkin made a naive assumption when he asked why, if Members did not approach this on a theological basis and at the same time supported marriage, they were opposing this Amendment? He said that he could not understand people who supported divorce opposing this Amendment. I stand here knowing very little of theological dogma, and I am certainly not opposing the Amendment on theological grounds. I oppose it, as I shall explain in a minute, on grounds which I believe are so fundamental that any Parliamentarian here, who is proud of our form of civilisation, who believes in a stable marriage, who believes that the family unit is the very foundation of our State, should certainly oppose this Amendment.
I say this about the noble Lord, Lord Gladwyn—and I say it with all respect. He rose here in a very brave way, I thought, and said something which very few men would have said. I have never heard of a man saying it before in either House. He said, "I come to support this Amendment; first, because I am a layman and, secondly, because I am a child of a broken family." I would just say this to him. The first thing that a Parliamentarian learns is that hard cases make bad laws. One should never try to argue a case from a special problem.
LORD GLADWYN: The noble Baroness must admit, however, that, since I have had that experience, it is perhaps my right, and even my duty, to express my view.
BARONESS SUMMERSKILL: I agree. I realise that he has this point which has prompted him. Probably if he had not had that experience he would not have yielded (that was another of his words) to the noble Lord, Lord Shackleton, in speaking on it. I realise that that is what prompted him. But I also have a right to say, as a Parliamentarian, that the fact that one has had an unfortunate experience in life, which makes it difficult to be objective, is no reason why one should
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support a measure which may have very far-reaching effects. I would also say this to him: when he talked about the advance in divorce, that was surely a misnomer. In this context should one use the word "advance"?
On the question of illegitimate children, he appealed to noble Lords to help the illegitimate children. I propose to prove to this House that, if this measure is introduced, the number of illegitimate children in this country will probably increase, rather than decrease. I believe that, just as my noble friend Lord Silkin and the noble Lord, Lord Gladwyn, have taken rather a superficial view, many others have taken a limited view. They have believed that by compelling a husband or wife to submit to divorce, they would, as I have already said, relieve the lot of an illegitimate child.
LORD SILKIN: I do not want to interrupt the noble Lady, although I was interrupted a good deal. But I should like to assure her that I have given a great deal of thought to this subject; and I have had long professional experience of this matter. I have given my views, and, however imperfect they may be—and I am sure they are in the eyes of the noble Lady—they are at any rate not superficial.
BARONESS SUMMERSKILL: I should have thought that, in a debate where we are exchanging views, a Member of this House had the right to sit back and form an opinion after a speech had been made. I find that a debate does not serve a useful purpose if one sits back and does not criticise the opponent. Surely my noble friend must realise that we are on different sides. He has put an Amendment on the Order Paper and I am opposing it. Therefore he must not expect me to stand up here and say what a nice man he is. The noble Lord, whenever I criticise his judgment, becomes quite personal about it. But he must not. I am saying—and it is very difficult if one is interrupted just when one is opening one's case—that in my opinion this superficial view is wrong; and I am opposing this Amendment because of the more serious far-reaching effects.
If it is established (this has already been said, but I want to develop this point) that a divorce can be secured after seven years of marriage, come what may,

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the stability of marriage itself must suffer. In my opinion, if this point of view were accepted it would gradually effect a change in attitude, the attitude of our teenagers and our young people, towards the institution of marriage. The next generation could well argue, "Why seven years? Those old fogies established seven years. Why not five years? Why not three years?".
I would say—and I am hesitant about doing so, because my noble friend at the back may criticise me—that there is an entirely different attitude by a man and a woman towards marriage. I agree with my noble friend Lord Hodson, whom I have the honour to support, that this is a man's Bill. This is a difficult thing for me to say in a House of this kind, because one almost might think I was trying simply to put the woman's point of view. The case I am going to put now is not simply that of a woman who is trying to hold her man for economic reasons. I am not saying this because it pays a woman to oppose this Bill—because, after all, the man is her breadwinner, and to allow a younger woman to seize him and take him away is against her interests.
For that reason I am hesitant in emphasising the woman's point of view, but I must say this—and in this House there are many men who will agree with me—in the institution of marriage there are 50 per cent. men and 50 per cent. of women, and the approach of the two sexes to marriage is entirely different. The word "stability" is very easily bandied about, but may I just say what stability means to a mother in marriage?—and my case here, which I am going to develop, is the case of the mothers of this country. A woman experiences complete biological fulfilment when she becomes a mother, and her maternal instincts dominate her thinking and dominate her actions and her attitude to marriage. Her urge is to protect her offspring; and I do not need to remind noble Lords that the instinct of self-preservation, which is the strongest instinct in us all, when there arises a matter of danger to a woman's children is forgotten by the mother. We saw it in the war: we saw it during the bombing; we see it in any fire in the country where children are involved. A mother's instinct to protect her children is so great that her first instinct, that of
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self-preservation, disappears, and she is there to protect her off-spring.
Now she does not need to be advised by a psychologist to know that a threat to her marriage and to her home will jeopardise the wellbeing of her children: and that is why she is like a tigress in protecting her home. She will tolerate persistent ill-treatment from her husband rather than risk the break-up of her home. Have noble Lords ever read of any case in the newspapers where a man has tolerated the most appalling ill-treatment by his wife rather than leave his children? Therefore, this seven-year clause, this compulsion clause, as I call it, if it imperils in the smallest degree the institution of marriage, is totally opposed to the interests of mothers. If noble Lords will go with me so far, and if they will say that something which is opposed to the interests of the mothers is opposed to the interests of the State, and if we believe that the security of the family unit forms the very foundation of our civilisation, then I ask the Committee to oppose this Amendment to-day.
The bond of family may be strongly or very lightly felt by a man. I am not judging him by that: this is a biological matter. We are all subject to our ductless glands. It is not his fault: it is his approach to marriage. In exactly the same way, his approach to other things is different from that of a woman because his instincts are different. Therefore, we must recognise that the bond may be less strong in a man. Surely, it is primarily for the benefit of the children that men and women live together. I agree a man may feel he wants a change, but, nevertheless, the woman, whatever she begins to look like, is as strongly intent upon keeping her family together as if she were newly-married.
Now I come to the question of illegitimate children, because time after time we have read in the newspapers that this Bill must be supported for the sake of the illegitimate children of the country. But what of the children born in wedlock? I am not talking, of course, of the children of the family where the man has gone off to live with another woman. But what of the children in wedlock, and their happiness? Have we no responsibility to them? Why have those who keep talking about illegitimate children not talked about children

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in wedlock? To amend the law in this manner is to make a separation of seven year tantamount to divorce, and it would encourage the irresponsible man, after some years of marriage, to seek another woman. He has improved his financial position, with the help of his first wife, and, therefore, his eligibility to some women has increased. Henry VIII, as he grew older, felt entirely the same. I mention Henry VIII because two or three noble Lords have already gone back in history. He felt entirely the same: a spoilt king; a spoilt play-boy. Why should he be faithful? Anyhow, family meant nothing to him. He was not a practitioner of divorce. Marriages of which he grew tired were brought to an end by annulment, or by the swifter method of execution. He did not have to worry about a Bill of this kind: he knew how to deal with his women. He looked around and said, "I want that one; I like the look of her. Off with the other's head!"
This clause will remove the detriments which might prevent a woman from having a liaison with a married man, because this clause will ensure her respectability and her legal safeguards. It will put the hallmark on her respectability in a number of years. It will enable a married man to propose marriage to another woman with the only reservation that the engagement will be prolonged. I am told that in some cases in America a married man and a married woman, neither of whom have obtained divorces from their respective spouses, get engaged, anticipating a divorce in a short time. Are we going to establish the same standard of behaviour here? This clause proposes to establish not polygamy, but successive monogamy, without there having to be given any reason but a change of mind when taking a fresh partner.
Surely, far from making it easier for a man or woman to flout their obligations, consideration should be given to strengthening the bonds for a number of years after the arrival of children. Children need a mother and father because they are inexperienced and need protection, and now that we are considering extending the school-leaving age the longer will they need protection. Marriage is not an institution which concerns simply the likes or dislikes of two
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people. Who of us here does not at times quarrel with our partner? Do we then say, "How much nicer if we had somebody to agree with us"? Why should the desires of one partner of a marriage be satisfied at the expense of the other partner and the children? All efforts made to remove a parent from a child mean a deprived child.
The promoters of this Bill, as I have already said, express great concern for children of illicit unions, but I think one should be permitted to show even greater concern for the children of legal marriages. After all, it is regrettable that illegitimate children have to face this obloquy, but the acceptance of this clause will encourage more men to father such children. I hope that the noble Lord, Lord Gladwyn, who spoke with such sincerity, and who has been convinced that this will almost solve the problem of illegitimate children, realises that, far from that, this clause will give much greater opportunities to people to have illegitimate children.
LORD GLADWYN: I did not say, with all respect to the noble Baroness, that it would solve the problem of illegitimacy: I said it would help to rectify a great social wrong.
BARONESS SUMMERSKILL: I appreciate that, but the great social wrong is illegitimacy. My point is that this will increase the rate. The illegitimate children he is thinking about may have their problems solved, but, by introducing this clause, more illegitimate children are going to be born.
Now on this subject of children it is well known that the children of divorced parents are brought to psychiatrists or come before the courts emotionally unstable, a misery to themselves and to the community. Let us remember also, when we are thinking of illegitimate children, the emotional and unstable men and women who can never adapt themselves to their environments during the whole of their lives because their parents have separated and they have felt insecure. The fact is that the divorce rate is increasing. The publicity given to divorces of the middle and upper classes in this country tends to encourage others to live "down to the Joneses". It seems that after a divorce the community, the divorce courts and everybody become concerned about what should happen to

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the children of the marriage. This is the time to show concern—in Parliament—to ensure that legislation should not be introduced which is liable to undermine marriage. You increase the divorce rate and you increase the number of illegitimate children. And I want to emphasise that.
My final point is on the economics of the problem. I would say to the noble Lord, Lord Gladwyn, that he has been misinformed about this point. Perhaps he is a little out of touch with the economics of the woman who is separated or, indeed, divorced. We are told that the divorced wife, he innocent party, will receive maintenance. How many men can support two families? That is precisely why my noble and learned friend Lord Hodson said that this is a rich man's Bill. If a man cannot support two families, the wife and children of the first marriage will suffer. The noble Lord, Lord Gladwyn, spoke about maintenance. Does he not realise that an irresponsible man can take a second wife, as is suggested in this Amendment, and for the first month or two he will be paying maintenance to the first wife; then he finds that he no longer has the money to pay at that rate? Then he is hauled before the judiciary, and the judge or magistrate must ask himself, "What shall I do? Shall I send this man to prison? If I send him to prison he is not working, he is not making any money. He can neither pay his second wife or her children nor give even a small contribution to the first wife".
LORD GLADWYN: Really, the point is what has been happening for several years. Let us say the man has been unofficially married to another woman. Presumably he has been supporting the first wife all that time. The mere fact that he is legitimising the second union does not alter the position. He must go on supporting his first wife. He has already had to do so; otherwise he does net get the divorce. The situation is not changed.
BARONESS SUMMERSKILL: I speak more in sorrow than in anger. This is the psychology of the thing I would say. When a man lives with a woman, and his first wife may well be in the same neighbourhood, he pays the first wife maintenance because the last thing he
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wants is trouble; and the woman he is living with does not want trouble either. The situation changes entirely when he is married to the second woman and she is in possession; and the first woman (of whom she has no doubt been jealous and on whom she is anxious to vent her spite) has to beg for her maintenance allowance. Then the serious things happen that I have described. The first wife does not want to make trouble; she does not want to see the affair in a local paper. But, finally, because he has no money, she goes to court; and the magistrate then has to ask himself, "Shall I send the man to prison? Because if I do he is not working and is not making money." That is the economics of the problem.
LORD KENNET: May I ask the noble Baroness whether she has never known such a situation arise during separation with regard to alimony?
BARONESS SUMMERSKILL: I am talking about this as a doctor who has worked among the poor. I was qualified in 1924, and I have seen many women in this position and heard their difficulties, told to me in consulting rooms where, of course, one always observes their confidences. I speak with some authority; and that is my authority.
On the economic problem I do want to remind noble Lords that the innocent woman who is divorced loses her national insurance benefits. She loses her Service pension if there is one; she loses any pension attached to her husband's work; she loses everything; and, of course, during the years she has helped to establish her husband the law has not permitted her to save one penny in her own right when he goes off to the next woman. I am going to introduce a Bill later to change that position. This is the woman who is divorced without her consent. I hope your Lordships will not hastily vote for this Amendment; but seek to help the small minority where the husband or wife do refuse consent to divorce. We may otherwise be causing untold damage. Finally, my I say what I said in the beginning: to those of your Lordships who are here because you know of a hard case I say: do not be moved by that; remember, as I said, that a hard case makes a bad law.
3.46 p.m.
LORD BOOTHBY: I shall not detain your Lordships very long, and far be it from me in this House to appear as a defender of Henry VIII; but I should like the noble Lady who has just spoken to remember that if, in fact, Henry VIII had not got "fed up" with Catherine of Aragon we should not have had the benefit of Queen Elizabeth I. So history certainly takes strange turns. I had prepared what I thought myself was an able and powerful speech, but, unlike the noble Lord, Lord Silkin, I decided after listening to your Lordships, to curtail it right down to the bone. The speeches I have heard have been so good on both sides and so cogent and, if I may say so, in the case of the most reverend Primate, so imbued with sympathy and compassion, that I find it difficult to make up my mind; and I am sure all the arguments have been put now as clearly as they can be on both sides. I was also much impressed by the economic case made out by the noble Baroness who has just sat down.
I come back to the fact that this Bill is, by design, concerned primarily and rightly with the welfare of children. Mr. Abse made that perfectly clear from the beginning. There are, as the noble Lord, Lord Silkin, said, 200,000 illegitimate children under the age of 16 who are being brought up at the present time in the homes of parents who are unmarried—but these are, nevertheless, homes; and that is what "gets me a bit". I cannot think that this is a desirable state of affairs. I believe that the answer is to legitimise as many children as possible and, therefore, to allow many more marriages to take place; and, despite all the statistics that can be brought—and most of them are hypothetical—I still believe the passage of this clause would bring benefit to more people than those who would be penalised. I cannot help feeling that. I think it is desirable that in the case of those many homes—and there are thousands of them in this country—where there are what we call illicit unions but with children, it would be wise to recognise that they are homes, they are families.
The noble Lady spoke a great deal about the family unit and the danger of families no longer being together but
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separated. But, in fact, in these cases—cases that will be covered by this clause—they are no longer family units. They are no longer together. They are, in fact, separated and have been for seven years—for seven long years. It is a long time; and on top of that the judge must be satisfied—and the noble Lord made that quite clear—that there is no hope of reconciliation.
I think the noble and learned Lord, Lord Hodson, summed up the whole of this argument. What we have to decide about, when it comes to the vote, is whether the breakdown of marriage or matrimonial offences should be the cause of divorce. That is the issue and that is the final decision we have to take. A matrimonial offence involves an innocent and a guilty party. We all know in our hearts that many, many cases of divorce—I should say the majority—have now become a charade. They are absolutely make-believe. I have a friend who was divorced some years ago for a very good reason—I shall not give his name to the noble and learned Lord, Lord Hodson. He obtained his divorce by obtaining the services of a lady, and for the payment of an extra £2 above the normal charge he obtained the services of a lady who played bezique. He told me somewhat mournfully some time afterwards that, despite the fact that they played bezique, it was the longest night. A divorce can be obtained by these methods and it is done every day. In many of the cruelty cases, by agreement, the cruelty can be invented.
BARONESS HORSBRUGH: Suppose the wife of the noble Lord's friend, who played bezique at the cost of an extra £2, did not want to divorce him. At the present moment she can tell him, "You can go on playing bezique if you like, but I won't divorce you."
LORD BOOTHBY: I agree with the noble Lady that that is the fact, but in this case the lady wanted the divorce, so all was well. The game of bezique, though long, had a satisfactory conclusion from both their points of view. But this is a real point of principle. I want to emphasise that what we have to decide is whether divorce can come about as the result of the breakdown of marriage—and can it be said after seven years of

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separation, with no chance of reconciliation, that a marriage has not broken down?—or must it come about solely by means of a matrimonial offence committed by one side or the other? On balance, after great thought and not entirely superficially, I assure the noble Lady, I have come to the conclusion, reluctantly, that the breakdown of a marriage is an even greater cause, and certainly a more valid one, than a casual offence by one or other party to a marriage.
3.54 p.m.
THE LORD CHANCELLOR: My Lords, I should like, if I may, to say a few words in this important debate. I should like to make clear at the outset, as did my right honourable and learned friend the Solicitor General in another place, that I am not seeking to express any views on behalf of Her Majesty's Government. I would say a few words about some of the issues that have been raised and, in particular, on some of the observations of the noble Lord, Lord Boothby. He has drawn attention to the case of his bezique-playing friend. I simply reject out of hand his allegation that that type of false case comes frequently before Her Majesty's Judges in the Divorce Court. However, as my noble friend Lady Horsbrugh pointed out, that is beside the point in relation to the proposed clause, because there obviously there would be no suit for divorce unless the other party had wanted it.
The real issue raised by the Amendment is whether, without there being any matrimonial offence, after a period of time, stipulated in this clause as seven years, an innocent party, who does not wish to be divorced and who wants to preserve the sanctity of the marriage contract, can be divorced against his or her will and wish. The noble and learned Lord, Lord Hodson, in his powerful speech, said, and I think rightly, that the real issue here lies between the proposal that divorce should be granted only on the establishment of a matrimonial offence and the proposal that it should be granted where a marriage had broken down in fact, without any prospect of a reconciliation. I agree that that is the real issue behind this Amendment. The noble Lord, Lord Boothby, also expressed this view.
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While it is true to say that our divorce laws are based on the principle that divorce should be granted only on the establishment of a matrimonial offence (to which there is one exception at the present time, in relation to insanity) it may be—I do not know—that it would be possible to devise another system where divorce would not be dependent upon the establishment of a matrimonial offence but upon the fact of the breakdown of the marriage. But that is not our system. That is not the system which this Amendment proposes. What this Amendment proposes is to graft upon our existing law a proposition based upon the fact of the breakdown of marriage. I must say that I think the result would be very illogical and difficult to defend, for this reason: there might so easily be a case where a man seeks to obtain a divorce on the ground of adultery or cruelty, or something of that sort, and after a long-fought-out case his petition fails. He knows that he has only to wait, and at the end of seven years, under this clause, he will get a divorce. I am speaking personally in expressing this view.
If the real reasoning behind the Amendment is that a divorce should be granted on the basis of the breakdown of marriage, why seven years? If that is the basis on which our law should depend, why should a divorce not be obtainable when it is somehow established that a marriage is permanently broken? I think that there is a great deal of force in the argument, which has been put forward in this debate, that if this Amendment is carried, the seven-year period will not last for very long.
Attention has been drawn to what are called the safeguards in subsection (3). On these I should like just to make these observations. A great deal is left to the discretion of the judge. He has to consider whether, in the particular circumstances of the case, it would be harsh and oppressive to the respondent. The respondent who does not wish to be divorced, and in respect of whom there is no ground for a divorce, would have to come forward and establish that, but there is no guidance given to the court as to the basis on which it should operate in determining whether, in the particular circumstances, it would be harsh and oppressive or contrary to the public interest. There is no indication of the

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factors which would be taken into account in considering what is the public interest in this particular connection, and of what guidance should be given to the courts when the respondent to a petition under this clause says that she will not consent on religious grounds, which are sincerely held. Ought not guidance to be given by the proposers of this clause about whether the judges who have to deal with this matter will take that kind of objection into account in determining whether or not, in the circumstances of the case, it would be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree?
It has also been put forward that there is the safeguard of the provision made in subsection (4) for the maintenance of the wife who will be divorced under this new clause. We can argue about that a great deal. I think that there is great force in the argument that only people with considerable means would be able to avail themselves of this clause.
LORD SHEPHERD: In the event of a man's obtaining a divorce under the proposed Amendment, and if he marries again, where does his responsibility in law lie? Must he provide for the maintenance of his first wife, even though it is at the expense of the woman he has married after divorce?
THE LORD CHANCELLOR: I am not going to give an answer to that at such short notice, except that I would point out that it does not really relate to this, because, if the noble Lord looks at subsection (4), he will see that
"the court may refuse to pronounce a decree on any petition on the ground of separation until the petitioner has made such provision (if any) for the maintenance or benefit of the respondent and any child to which section 26 of the Matrimonial Causes Act, 1950 applies as the court thinks proper in the circumstances of the case."
I am on that broad point. One does not know, of course, quite how the court would interpret that subsection, but it would appear probable that the court would say that they were concerned to see that the first wife should continue to get adequate maintenance. But the point made by my noble and learned friend Lord Hodson was this: that whereas a rich man might be able to meet the requirements of the court on one or more
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occasions, a man of little means would not be able to do so.
The point I want to draw attention to is this: that, whatever is done by the court there (and this relates to the economic grounds on which the noble Baroness touched at the end of her speech), I do not see how in any way under that subsection provision could be made for the woman who may survive her husband, and who would, if this petition had not been presented and succeeded, have been entitled on his death to a widow's pension, either under the National Insurance scheme or under a private pensions scheme. That she would lose inevitably on the decree being made under this clause. But that is an economic view. I would say, if I may, to the noble Lord, Lord Gladwyn, that you cannot brush these difficulties aside by just describing them as technical. They are very real problems which we ought to consider if this clause is added to the Bill.
LORD GLADWYN: Is it not a fact that the law in Australia, which is substantially the same as the present Amendment, has been satisfactorily applied there without any difficulty at all?
THE LORD CHANCELLOR: I am not sure how they apply it in relation to pensions and particular pensions of this kind. But the real argument put forward is whether there should be, first, a matrimonial offence, or whether the law of divorce should be based on the breakdown of the marriage. The argument put forward on the latter has been based largely on the sad situation of those whose marriages have broken up, and have been broken for a long time, and who want to regularise their position and, if possible, the position of their progeny. It is an appealing case, and one which must be regarded with great sympathy. At the same time, one cannot ignore, and perhaps at present one cannot accurately assess, the consequential effects of a provision of this kind on existing marriages and the existing tendencies which are now current among our population.
I have thought it right—I hope your Lordships will not think I have spoken for too long—to make a few observations in relation to this clause. We are not

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confronted here with a clear-cut issue: should we reject divorce based upon matrimonial offence and go over to a system, if one could be devised, of saying there could be a divorce on the fact of the breakdown of marriage without any prospect of reconciliation? But what we are being asked to do is to graft part of the latter system after seven years have elapsed on to the existing inconsistent system of the law of divorce based on matrimonial offence.
LORD CHORLEY: I should like to make one or two observations in reply, particularly, to the speech of the noble and learned Lord the Lord Chancellor. He made two points to which he attached particular importance. First of all, he said that it was illogical to deal with this problem by going over, so to speak, to the breakdown of marriage theory, because the whole of the divorce law otherwise was based upon the penal doctrine. That, no doubt, is illogical up to a point. But law reform proceeds largely by illogical steps of this kind. The introduction into our law of the insanity point, which, after all, is within his recollection as it is within mine, was a step of exactly that kind, and I think everybody has agreed this afternoon that that was a very salutary reform.
The other point he made was that the safeguarding subsection, subsection (3), gives no guidance to the Judges as to how they are to operate it. The noble and learned Lord must know quite well that there are literally dozens of Acts of Parliament which give the Judges general powers of this kind. They proceed in the typical British way by empirical methods, building up a doctrine by means of which they deal with matters of this kind. I could give many instances. Take the case of the suspending of a motorist's driving licence: it is to be suspended unless for good cause the court decides otherwise. What could be more vague than that? Yet the Queen's Bench Division over the years since this provision was introduced has developed clear doctrines which enable it to be administered by the courts. That can be done perfectly well in this case by the able Judges who administer the law.
There are many things that one could say about this matter, and I would say them, even at the risk of being described
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as superficial by the noble Baroness who sits in front of me, but I appreciate that your Lordships are anxious to get to a Division, and I will add only this. It seems to me that the present system is a thoroughly dishonest one, and it is absurd to suggest that there is not a great deal of collusion going on. The parties know perfectly well that by collusion they can get a divorce. Is not this one of those fundamental dishonesties which is at the bottom of all the trouble with which our society is confronted at the present time? We have a case like the Profumo case, and we say that the morals of the country are crumbling. But if you bring the community up on this sort of basis that is exactly the way in which you get the situation in society in which cases like the Profumo case can happen. I suggest it is up to us this afternoon to sweep this away and to establish an honest doctrine.
LORD MESTON: I should like to say a word or two on this important matter. I am not taking an easy view of marriage at all: in fact, I think that every divorce is a tragedy, especially if there are children. There are two aspects of marriage. One is the religious aspect which is the dominant one and which I trust will always remain dominant. The other is a purely factual aspect. If you have two people who have not been living together for seven years and who never intend to live together again, then, from the common-sense points of view, the marriage has actually broken down and the religious aspect has entirely disappeared. I am sorry to say such a thing and I have no doubt that the most reverend Primate will not agree with me, but I cannot help it. I have said worse things in my life and I am still alive.
What distresses me is that no one seems to consider what actually happens in practice in these cases. You have two people who have been living apart for seven years. In a large number of cases they have formed other unions and have created numerous illegitimate children. In my view, illegitimacy is one of the most terrible misfortunes that can befall anyone. It is much worse even than the tragedy of divorce. And if only these two people were allowed to be divorced by taking advantage of this proposed Amendment, then you would find, after they had married the parties

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with whom they had been living, that the illegitimate children would be legitimated. I understand that is the position to-day.
THE EARL OF LONGFORD: Would the noble Lord press that argument very much? Would the amended clause say that the guilty party would get a divorce against the wishes of the innocent party only if he proved that he had illegitimate children?
LORD MESTON: I would not restrict this clause at all. I quite appreciate that the noble Earl, Lord Longford, is opposed to me and, quite frankly, I am opposed to him on this matter, although I have great admiration for his work in other fields.
The question which must always arise is: what about the widow's pension. The Lord Chancellor will throw me out if I say that he has been ventilating a canard. But, upon my soul! obviously, one of the very first things a Judge in the High Court would have to do would be to get into touch with the administrative power and see what they could do about the pension. There is not the slightest reason why a wife who is divorced under this clause should not obtain 75 per cent. or 100 per cent. of the widow's pension should the man predecease her. These are very simple matters which can all be considered in due course, and I hope that we shall all take a different view of this matter and put an end to marriages which have broken down and which are, in fact, in many cases, the cause of illegitimate children and a matter of public odium and contempt.
4.13 p.m.
THE EARL OF IDDESLEIGH: I sit on a county children's committee, and among my charges are many children, both illegitimate and legitimate. I have no knowledge that the illegitimate children among my charges are any less happy or do any less well than the legitimate children in county care. But I do know that all children deprived of a normal home life are profoundly to be pitied and I do know that the legitimate children who come into our care arrive there because their parents have disregarded the obligations of matrimony.
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I am opposed to this clause not only on the doctrinal grounds which have been so well expressed by the most reverend Primate, and which at this late hour I will not repeat, but also on the practical grounds that, as divorce is made easier, so the people, very often young people, who are to-day getting married will get married without that intention of forming a permanent union which is necessary to a true marriage. Day by day the bride and bridegroom read in our papers of the divorce of this or that famous or glamorous figure in national or international life. It must inevitably affect their view of the permanence of marriage. To-morrow, I suppose, a large number of young people will go to the altar. What will be the effect on the marriage of those young persons if they read the headline, "Lords approve easier divorce"? It is easy enough to see their comment: "What! even these stuffy old Peers! It cannot be wrong." It is because these easy divorce laws are undermining the very foundations of marriage that I am opposing this new proposal. What would happen under this clause? Up to now a man could not be certain of getting a divorce, whatever he did, unless his wife would co-operate and help him. Under the clause, if it were adopted, he could be reasonably certain of getting a divorce after seven years. And do not think that those seven years will be spent in celibacy.
THE LORD BISHOP OF EXETER: I have no argument to advance in opposition to this proposed new clause, but I should like to say a word or two to indicate that the arguments advanced by the most reverend Primate are arguments with which all of us on these Benches are in complete agreement. I should like also to underline three of them. The first is that there is, and must be, an element of injustice in this compulsory divorce. I do not see how it can be denied, and I see no reason to elaborate the argument further. The second is that we believe that although it is the intention and desire of those who promote this clause to cure unhappiness, it is our conviction that the way in which they propose to cure that unhappiness will, in the end, produce much more unhappiness.
We believe that, because we believe that once it is established by law that

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a marriage can be brought to an end either by mutual consent of both the parties, or even by a single unilateral act of will of one, you strike a grave blow at the stability of marriage and thereby run the risk of creating far more unhappiness than this clause would cure. You will strike at the happiness of ordinary marriages for the reason so skilfully deployed by the noble Baroness, Lady Summerskill. It is an argument which I call the fear of the ageing wife. Women age more quickly than men, and lose their sexual attractiveness sooner; and wives, as they age, are subjected to the fear that they may not be able to retain their husbands. If this clause were approved their fears would be immeasurably increased. That is our main argument.
I was glad that the noble Earl, Lord Iddesleigh, said something about these illegitimate children whose unhappiness has promoted this clause. I thought that I had a blind spot about illegitimacy and that I was the only person in England who never quite understood why it is held to be such a hardship. In spite of these illicit unions with which this clause is concerned, do children under sixteen, in fact, before they have to apply for a birth certificate for some job, know that they are illegitimate? I have no reason to suppose that my own parents were not married, but I never saw their marriage lines. Is the situation really so desperate for these illegitimate children as is made out? Except for that, I reiterate that we on these Benches are wholeheartedly in opposition to this proposed clause though fully recognising the sincerity with which it has been moved.
LORD KENNET: I wish to take two minutes of your Lordships' time to try to adduce doubts about two statistical statements which have been made in the debate. The first was from the noble and learned Lord, Lord Hodson, who said that each easing of the grounds of divorce increases the number of divorces in this country. It is certainly true to say that the grounds have been eased, and that the numbers have been increased. But there is another possible cause, and that is the fact that the financial burden of obtaining a divorce has been successively lowered. It is very hard to decide whether the increase in the total number is more due to the easing of the grounds or the lessening of the financial burden.
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Secondly, my noble friend Lady Summerskill made great play with the fact that children of divorced parents go to psychiatrists and come up in court, and generally turn out to be incapable of leading their lives without help. But this, I think, is to bias the matter. If I am right—and there is a great deal of evidence to show that I am—it is the children of separated parents, which includes divorced parents, who are affected in this way. The factor which predisposes to delinquency, or any other sort of personal or social disorder, is the sheer absence of one parent or the other, not the presence or absence of a state of marriage between them.
That brings me to my main point. I am perplexed. I have listened carefully to this debate, and I have tried to make up my mind what it is that this ageing woman, mother of several children, loses if we agree to this Amendment. She does not lose her husband—she lost him seven years before. She does not lose her children: for, obviously, in any such divorce custody of the children would be given to the innocent party over whose objections the divorce is granted. Her property and money? Well, the man in the case is as rich or as poor as he was before. If he was able to support a legitimate wife and mistress he would also be able to support a legitimate second wife and first wife. It is true, as the Lord Chancellor told us, that the first wife would lose his pension rights, and it certainly seems to me that some cure should be found for this situation, in which a woman may be tempted to bastardise her husband's children for the sake of his pension. And I am sure many do it. I should welcome subsidiary legislation following this Bill, if the Amendment were passed, but I do not think that that gap in it is sufficient cause to reject the Amendment.
Then there is the wife's belief. I do not believe that she would lose her belief in such a case. If she believes that marriage is absolutely indissoluble by any human agency, it does not matter to her whether the court decrees the marriage at an end or whether it does not. If the marriage resides solely or principally in her intimate conscience and relationship with God it will continue, and in her eyes the second wife, though acknowledged by the State, will never be more than the husband's mistress.

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Lastly, what is it becoming for us to do in this House? We have this Amendment before us, and to a certain extent, the eyes of the country, I suppose one may assume, are on what we dc. What proportion of us are divorced? I have the figures here: Lords of Appeal, none; Barons, 15 per cent.; Viscounts, 21 per cent.; Earls, 22 per cent.; Marquesses, 26 per cent.; Dukes, 30 per cent. They were the lucky ones. Life Peers, Macmillan creation, 3 per cent.
BARONESS SUMMERSKILL: Baronesses?
LORD KENNET: I believe none. No distinction was made by the un-sex-conscious investigator who produced these figures. As I say, they were the lucky ones; they were not held back by a spouse who refused to brim: suits when required, if that was the way round it was. I think that it would not become a House composed in this manner to resist any rational proposal for a slight widening of the grounds of divorce.
THE EARL OF PERTH: I know that your Lordships are most anxious to divide on this clause, and I will keep you only one minute or two. But I feel strongly, after listening to all the arguments, that what we are really discussing to-day, as the noble and learned Lord the Lord Chancellor said, is whether this Amendment would not make a complete mockery of marriage. My reason for saying that is that what would be introduced would be an entirely new principle, which is that you carry on with the marriage for as long as you desire it. It is true that it is disguised at the start by the reference to seven years, but that is really the heart of it.
On theological grounds, clearly this is bad or wholly objectionable. But let us look at it from the social angle. In fact we should not think of it in terms of what happens after seven years, but what happens at the start. For young people who are going to come together, the marriage ceremony could go something like this: "Will you live together for as long as you desire it?" That is what it would come to, in essence, if we passed this Amendment. And the sequel to that would be the end of our social system, great unhappiness, more divorces, more
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broken marriages, more illegitimate children. If you want to see an example of that you have only to look at what happened in cases like the Scandinavian countries, where illegitimacy, I understand, is up by some 500 per cent. I hope we shall not be thinking in technical terms, but let us look at the heart of it and turn down the Amendment.
THE EARL OF GOSFORD: May I ask the noble Earl to look back to his own marriage? Does he sincerely think young people go into marriage—remembering what was in one's mind at that time—thinking, "I can get out of it after seven years".
THE EARL OF LONGFORD: I am afraid I disagree with the noble Earl. I suppose 30 per cent. of Dukes went into marriage in a fairly light-hearted spirit. But one point is, if marriage was going to be undermined in this way people would go in with a less solemn spirit. It is the long-term effect with which we are concerned; that is the point the noble Earl must grasp. We are gravely concerned how people will go into marriage if, in future, they know they can get out of it whether they are the guilty party or not.
Reference has been made to the theological point of view. Certainly with many religious leaders present I am not qualified to discuss that. But I should like to say this: that many of us of various denominations believe that when we marry we are entering into a contract sanctified by God and indissoluble. That view is very widely held. There are others who do not hold that point of view. The long-term, practical consequences of what you might call divorce by consent have been stressed by many speakers. But I cannot understand anybody with a heart to feel—and that applies to all my colleagues and I imagine all noble Lords, certainly someone like the noble Lord, Lord Kennet, and other speakers—can seriously justify, on reflection, one aspect of this clause, the aspect that will enable a guilty man to dispose of an innocent wife. That is what is going to be permitted. It would be opposed to any sort of ethical code, whatever you like to call it, utilitarian, humanist or Christian. This is something to me positively disgusting, to confer this power on a guilty man who will come forward and claim, because he

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has got illegitimate children, or might have some at some time or other, that he must be allowed to put away this woman. I cannot tell the noble Lord how revolted I am by this aspect, if we pass the clause: we pass it with that aspect very prominently in our minds. I must not say more but I really cannot say less.
LORD MESTON: Can the noble Earl, Lord Longford, tell us, instead of being revolted, what is the factual position of two people who have not lived together for seven years and never intend to live together again?
THE EARL OF LONGFORD: The answer to that is fairly obvious; they are living in a state of separation.
LORD SHACKLETON: I think the time has come when we should divide, would only say, very quickly, that I personally, as the Member in charge of this Bill, am very grateful to the Committee for the moderation it has shown. I should like only to correct two points. First of all, I would dispute Lord Hodson's statistics on divorce. I have figures which could tell a different story, but I do not think either set of figures is significant to the argument.
The second point I must make clear—because there seems to be an impression that in rejecting the idea of grounds for
divorce other than for matrimonial offence the Royal Commission were against this proposal—is that it was, in fact, the proposal of half the members of the Royal Commission, nine, who suggested what the Lord Chancellor was objecting to, which was that in addition to the matrimonial offence the fact that the marriage had broken up should also be grounds for divorce. Admittedly, they added certain conditions, such as the consent of one of the parties; and I would suggest to the Committee that they should, if they in fact are inclined to this view, pass this Amendment to-day. We can then consider the noble Lord's Amendment to it on Report stage, to give the right of consent, which was what aroused the anger particularly of my noble friend Lord Longford. We shall then achieve what those of us, I am sure we are all agreed, sincerely believe to be an important means of easing great unhappiness and sorrow—we shall be able to advance towards that. But I will not advance any further argument. I think the time has come to vote, and I hope that we shall at least keep this matter open by passing this Amendment to-day.
4.36 p.m.
On Question, Whether the proposed new clause shall be there inserted?
Their Lordships divided: Contents, 31; Not-Contents, 52.

CONTENTS

Archibald, L.

Grantchester, L.

Lucan, E.

Boothby, L.

Harmsworth, L.

Margesson, V.

Burton of Coventry, B.

Harvey of Tasburgh, L.

Meston, L.

Chorley, L.

Huntingdon, E. [Teller.]

Monson, L.

Cranbrook, E.

Jellicoe, E.

Moyne, L.

Effingham, E.

Jessel, L.

Sainsbury, L.

Francis-Williams, L.

Kennet, L.

Shackleton, L.

Fraser of North Cape, L.

Latham, L.

Silkin, L.

Gladwyn, L.

Layton, L.

Strang, L.

Gosford, E. [Teller.]

Listowel, E.

Stuart of Findhorn, V.

Williams, L.

NOT-CONTENTS

Albemarle, E.

Dilhorne, L. (L. Chancellor.)

Lichfield, L. Bp.

Ampthill, L.

Douglas of Barloch, L.

Longford, E.

Auckland, L.

Ebbisham, L.

Lucas of Chilworth, L.

Brain, L.

Exeter, L. Bp.

MacAndrew, L.

Canterbury, L. Abp.

Forstor of Harraby, L.

McNair, L.

Carnock, L.

Furness, V.

Milverton, L.

Chichester, L. Bp.

Hailsham, V. (L. President)

Monsell, V.

Clwyd, L.

Hawke, L.

Montgomery of Alamein, V.

Cohen, L.

Henderson, L.

Morton of Henryton, L.

Cowley, E.

Hodson, L.

Ogmore, L.

Craigmyle, L.

Horsbrugh, B.

Perth, E.

Craven, E.

Howard of Glossop, L.

Rathcreedan, L.

Cromartie, E.

Iddesleigh, E. [Teller.]

Robertson of Oakridge, L.

Denham, L.

Ilford, L.

St. Aldwyn, E.

St. Edmundsbury and Ipswich, L. Bp.

Sandford, L.

Soulbury, V.

Shepherd, L.

Summerskill, B. [Teller.]

St. Just, L.

Shuttleworth, L.

Winchester, L. Bp.

Samuel, V.

Somers, L.

Resolved in the negative, and clause disagreed to accordingly.
LORD SHACKLETON: My Lords, I beg to move that the House do now resume.
Moved, That the House do now resume.—(Lord Shackleton.)
On Question, Motion agreed to, and House resumed accordingly.

MARRIED WOMEN'S SAVINGS BILL [H.L.]
BARONESS SUMMERSKILL: My Lords, if I may detain your Lordships for one moment, I beg leave to introduce a Bill to give to a wife half of what she saves on housekeeping. I beg to move that this Bill be now read a first time.
Moved, that the Bill be now read 1a.—(Baroness Summerskill.)
On Question, Bill read 1a, and to be printed.
House adjourned at nineteen minutes before five o'clock.