Lords Sitting of 14 June 1966

Preamble
Reassembling after the Whitsun Recess, the House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Wakefield

LORD ROWLEY
The Right Honourable Arthur Henderson, Q.C., having been created Baron Rowley, of Rowley Regis in the County of Stafford, for life—Was (in the usual manner) introduced.

LORD STOW HILL
The Right Honourable Sir Frank Soskice, Q.C., having been created Baron Stow Hill, of Newport in the County of Monmouth, for life—Was (in the usual manner) introduced.
The Lord Bethell—Sat first in Parliament after the death of his father.
Several Lords—Took the Oath.

RACE RELATIONS LEGISLATION
2.58 p.m.
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether it is their intention to introduce legislation to strengthen the provisions in the Race Relations Act against racial incitement and to amend the Act in order to include provisions against discrimination in unemployment and housing.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the Government are studying the effectiveness of the Act, which has been in operation for only a few months. If we find that it ought to be amended or extended we shall not hesitate to introduce the necessary measures, although it is right to warn your Lordships that there are considerable difficulties in dealing with these matters by Statute and there is no prospect of amending legislation this Session.
LORD BROCKWAY: My Lords, while welcoming that statement, and appreciating the new spirit in the Home Office on this issue, may I ask my noble friend whether that consideration includes the provocations which took place before the outrages in the Jewish synagogues, and whether the evidence which has been brought before the Race Relations Board

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regarding discrimination in employment and housing is also being considered?
LORD STONHAM: My Lords, I can give an unqualified assurance on both those counts. On the first, however, both my right honourable friend the Attorney General and the Director of Public Prosecutions have considered all the incidents to which my noble friend referred, but came to the conclusion that there was not sufficient evidence to secure a conviction. On the second part of my noble friend's question, with regard to housing, we realise that this is one of the key and most important points in respect of integration. As my right honourable friend the Home Secretary has already said, this matter is receiving the most close and careful consideration.
LORD BROCKWAY: But, my Lords, does not the fact that the present law does not allow prosecution for this incitement against the Jewish race indicate that there is a need to amend the law?
LORD STONHAM: My Lords, I do not accept that the present law does not allow prosecution. I merely said that the incidents of which we have so far received notice would not, in the opinion of my right honourable friend the Attorney General, have permitted successful prosecutions. I would add, for example, that one of the alleged offenders is not at present in the country; that has a bearing on it. But I assure my noble friend that this matter is receiving the most close and careful consideration, and I would ask him to accept that we are no less anxious about it than he is. And, remembering that it took my noble friend thirteen years of hardwork to put this measure on the Statute Book, I am sure he will agree that we are entitled to a few months to see how it works.
LORD FRASER OF LONSDALE: My Lords, are not the British people, by tradition and sentiment, among the most tolerant in this matter? Does it not contribute better to understanding for all the various peoples who live here not constantly to call attention to minor episodes, but to let the good sense and welcoming attitude of the British people work its way?
LORD STONHAM: My Lords, I would agree that the British people are
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among the most tolerant in the world, but I could not agree with describing the burning of the Jewish synagogues for racial or religious reasons as a minor incident. I would only add that I think the position is that there is no one in your Lordships' House who does not share a hatred of racial incitement or racial discrimination. Our problem, however, is not hatred of it, but how to deal with it in a Statute.
LORD SALTOUN: My Lords, in considering future action will Her Majesty's Government perhaps remember that the most certain way of getting two dogs to fight is to hold them nose to nose and try to restrain each of them? The Race Relations Act may very well have a similar effect upon men, who are not unlike dogs.
LORD STONHAM: My Lords, the noble Lord, I am sure, is right; and not for the first time. But the position is that we are making progress in many fields. Integration is working particularly, for example, in employment. When we were discussing the Bill which is now the 1962 Act there were some 37,000 Commonwealth immigrants unemployed; now there are fewer than 7,000. It is movements like this which show the results of the patient work which is being done.

INDUSTRIAL STANDARDS
3.2 p.m.
LORD DRUMALBYN: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what decisions were reached at the EFTA Council meeting held in Bergen on May 12 and 13 regarding industrial standards.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (LORD BESWICK): My Lords, Ministers representing the member countries at the Bergen meeting of the EFTA Council adopted a recommendation made by the United Kingdom that efforts to secure early agreement on standards in the

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appropriate European and international organisations concerned should be strongly supported, and every effort made to ensure that these standards are adopted nationally without deviation.
LORD DRUMALBYN: My Lords, may I ask the noble Lord how much further this carries matters? Was this not already being done? And what additional effort is now being made to secure greater uniformity of industrial standards, certainly among European countries?
LORD BESWICK: My Lords, first I think it is generally agreed that the resolution, which is accepted by the member States, will carry things further forward, in so far as each member Government will now be required to give a political directive to its respective national-standard bodies to ensure observation of the standards adopted by the international bodies to which I referred. As for the securing of Continent-wide standards, I think that what the noble Lord probably has in his mind is the possibility of the European Community countries having separate standards, and it seems to me that any tendency in this direction will be averted, if we can get the adoption throughout the Continent of the standards already laid down by CEN, CENEL and the other international bodies.

CENTRAL AFRICA
LORD ALPORT: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether any approach has been made to Dr. Banda to enlist his good offices in the task of achieving a constructive solution for the major problems of Central Africa.]
LORD BESWICK: My Lords, as the noble Lord knows, informal talks between British and Rhodesian officials are now being held in Salisbury. Whilst recognising the noble Lord's interest, Her Majesty's Government believe the course they are now pursuing offers the best hope at present of achieving a constructive solution of the problems of Central
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Africa. We are, of course, in close touch with Dr. Banda in connection with a number of matters of mutual interest.
LORD ALPORT: My Lords, will the Minister remember the unique position which Dr. Banda occupies in the politics of Central Africa, in view of the independent role which he has adopted since Malawi's independence, and his very great knowledge of the interests of the various regions of that part of Africa?
LORD BESWICK: My Lords, I do not think anyone who knows that part of the world, who knows Dr. Banda, and who knows him anything like so well as the noble Lord does, would disagree with what the noble Lord says. He has a part to play, but at the present time talks are pursuing on an informal basis and 1 think it would be better to see the outcome of those talks.
LORD SEGAL: My Lords, would my noble friend agree that Her Majesty's Government's very generous loan of £7 million to Malawi was in part due to the strong attitude of Dr. Banda towards Central African problems?
LORD BESWICK: My Lords, I should not like to say that. I am sure that the deep feeling of Dr. Banda for this country does not depend upon that particular loan.

SELECTIVE EMPLOYMENT TAX AND CHARITIES
LORD SALTOUN: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they have any statement to make on the impact of the pay-roll tax on charities.]
LORD SHEPHERD: My Lords, I regret that I cannot add to what I said on two previous occasions on this matter. But my noble friend will have seen that the Chancellor of the Exchequer received a deputation from the National Council of Social Service and the Churches Main Committee last Friday, and he reaffirmed that it was his intention to provide charities with relief from the effects of this particular tax.
LORD SALTOUN: My Lords, I wish to take this first possible opportunity of thanking Her Majesty's Government for a concession which relieves charities from a situation in which many of them had reason to fear for their own continuance. I wish particularly to thank the noble Lord, Lord Shepherd, for the sympathetic way in which he received my Questions at the end of the last Session, and for his good offices which I am sure were in the background. Although I in no way have a mandate to speak for charities, 1 know that nearly all charities agree with what I have just said.
LORD INCHYRA: My Lords, may I, on behalf of one of the charities concerned, the British Red Cross Society, echo what the noble Lord has said, and express our gratification at the decision which Her Majesty's Government have reached?
LORD SHEPHERD: My Lords, I must say that I, and I think the Government, are rather overwhelmed by the generous response on the first day after the Whitsun Recess. I will see that the comments of the two noble Lords are conveyed to my right honourable friend the Chancellor of the Exchequer.

MALAWI REPUBLIC BILL [H.L.]
3.8 p.m.
Order of the Day for the Second Reading read.
LORD BESWICK: My Lords, I beg to move that this Bill be now read a second time. The Bill is a short one, and I think it will be generally agreed that it is non-controversial. The Malawi Government have announced their intention that Malawi shall become a Republic within the Commonwealth on July 6, 1966, exactly two years after attaining independence. The change of status will not come as a surprise to your Lordships, as the Malawi Government's intentions were made known in the Press in July, 1965, and the change to a Republican State follows the pattern set by other African countries who made similar changes after a short period of monarchical constitution. As a matter of interest, the new Republic of Malawi will be the twelfth State to become a Republic within the Commonwealth.
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In consequence of Malawi's forthcoming change of status, she will cease to be part of Her Majesty's Dominions, and as in previous cases it is necessary to secure that the operation of our law in relation to the Republic will not be affected by Malawi's change of status. As convention requires, Malawi sought the agreement of other Commonwealth Governments to her remaining in the Commonwealth, despite the proposed change to a Republican Constitution. All replies have now been received and all are favourable. The change of status is, of course, a matter entirely for the Malawi Government to decide. But your Lordships will appreciate that, as Malawi will cease to be part of Her Majesty's Dominions, it is necessary to enact this Bill to ensure that Malawi will continue to be treated bye British law' as a Commonwealth country. Thus this Bill is really a technical measure, designed to regularise British legislation.
Your Lordships will have noticed that the Bill has been drafted to be effective retrospectively. This is because, although it is hoped that the Bill will pass through all its stages before July 6, 1966, I believe it is—my noble friend the Chief Whip will correct me if I am wrong here—the only Bill which will have reached that stage by that date, and the provision for retrospective effect means that it will be unnecessary to convene a Royal Commission for this Bill alone, and that consent will be able to be given to it, along with other Bills, towards the end of July. I hope that will meet the general convenience of all concerned.
Clause 1 provides that the operation of the law of the United Kingdom as it applies to Malawi—and, incidentally, the law of the Channel Islands and the Isle of Man—will not be affected by the fact that Malawi is now a Republic. This clause will not apply generally to the law of British dependent territories, but only to Acts of the British Parliament and Orders in Council made under such Acts which extend to such territories. This is the common-form provision in such cases. At the Malawi Congress Party Conference held in October, 1965, the proposals for a Republican Constitution were unanimously adopted and Dr. Banda was unanimously nominated as the Party's candidate for President. Last month Dr. Banda was elected by Parliament as the

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first President-designate of Malawi under the Republican Constitution, and I am sure that all noble Lords will join me in extending to Dr. Banda, representing the Government and people of Malawi, our sincere wishes for their continued progress along the path of peace and economic development. My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a.—(Lord Beswick.)
3.12 p.m.
THE DUKE OF DEVONSHIRE: My Lords, I am sure we all join with the noble Lord, Lord Beswick, in wishing Malawi every success in her new constitutional set-up. As the noble Lord, Lord Beswick, has said, this is no new departure for Commonwealth countries. It follows on a pattern set by India after that tremendous Commonwealth Prime Ministers' Conference held in April1949, as a result of which India became a Republic and yet remained within the Commonwealth. Perhaps it is too obvious a thing to say, but this set the whole pattern for the modern Commonwealth. As the noble Lord has said, Malawi is now the twelfth country to follow India's example.
All political Parties in this country fully understand the motives which make Dr. Banda and Malawi desire to take this step, and we appreciate that in doing so they intend no disloyalty to Her Majesty the Queen or to this country. Indeed, during the debates in the Malawi Parliament when the legislation necessary to turn Malawi into a Republic was being debated, Dr. Banda went out of his way to pay a tribute to Malawi's days as a Monarchy, and said:
"During that time, our ties of friendship with Britain have been cemented and strengthened."
So we may take it that in taking this step no disloyalty or lack of friendship to this country is being shown.
Under Dr. Banda Malawi has been a staunch and understanding friend of this country. Indeed, it has been a loyal member of the Commonwealth. Its role, and Dr. Banda's role, has not been an easy one to pursue, but certainly he has earned the friendship of this country by his pragmatic and realistic attitude to the problems facing his peoples. He has set an example which might well be
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followed all over the Continent of Africa. Certainly we on this side of the House accept this Bill. We greet it with complete understanding, and we wish Malawi and Dr. Banda every success in the difficult and troublesome years they may have ahead.
3.15 p.m.
LORD OGMORE: My Lords, I should like to join the noble Duke, the Duke of Devonshire, in wishing the State of Malawi well and in hoping that Dr. Banda will be spared for a long time to lead his country in the undoubtedly difficult times ahead. On these occasions we usually say a word or two beyond the strict contents of the Bill, because we are conscious of the important problems facing countries like Malawi. So far as many of us are concerned, we have a soft spot for Malawi, partly because it was discovered, so far as the Western World is concerned, by Dr. Livingstone—although, as the noble Lord, Lord Tweedsmuir, once pointed out, so far as the people of Malawi were concerned it was not in fact discovered, because it was known to be there all the time. But so far as the outside world is concerned, Dr. Livingstone—that great man—was our first contact.
Then it was developed in a very interesting way by the Church of Scotland, which for many years ran not only the religious life but also the economic life of the country. If anyone comes to me with ideas about development, I always put to them the case of Malawi—or, as it used to be called, Nyasaland—because Nyasaland has faced just about the most difficult task one can possibly imagine. The noble Duke mentioned that the role of Malawi has been no easy one. That is an understatement. Until quite recently, its only export was the export of men, who went to the mines in the Rand, in Rhodesia or to the Copper Belt in what is now Zambia. Just lately, the cash crops in Malawi have been extended. They now grow and try to sell tobacco, cotton, sugar and vipyatung. Unhappily, however, the tobacco crop, although a good one last year, was subject to the low prices of tobacco; and vipyatung, like so many other commodities from developing countries, is always at the mercy of artificial substitutes produced with the aid of a high subsidy by the developed nations.

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The effect of U.D.I. (or I.D.I., as the noble Lord, Lord Beswick, usually likes to call it) has, of course, been great on Malawi. Previously, as I have explained, the economy of Malawi was tied in with that of Rhodesia, and now that there has been a break I can sympathise very fully both with Dr. Banda and with Malawi. If we could get a word from Lord Beswick as to the present position it would be very interesting. For instance, we know that there are common services. The airways and the railways are common services: they were jointly owned by the three territories. Now, of course, they are to some extent separated, which must mean considerable problems for those who own them. We ourselves have some interest in all this because we make to Malawi a subsidy of £5 million a year. That is to help that country balance its budget; so we are not uninterested in its economic development.
A country like Malawi is one of those countries for which the United Nations Development Decade was particularly intended. Your Lordships will remember that a few years ago we had debates on the United Nations Development Decade, and that great things were said to be going to come of it. This Decade was going to help places like Malawi to balance their budgets, and to produce economic development on a great scale. Unhappily, half-way through the Decade, as we now are, far from the United Nations Development Decade having produced great resources for places like Malawi, the average rate of growth of the developing countries is even less for the five years than it was before. I am not in any way implying anything against the United Nations or against those who are running the Development Decade. We know that Mr. David Owen is one of the Joint Secretaries and is an admirable man. He is one of the few senior British officials in the United Nations and is an admirable international secretary. If there were no Development Decade, the situation would be worse than it is now. But it is disturbing when we think of places like Malawi. In fact, the rate of growth in this half-decade is less than it was before. In the world at large the situation in the developing countries is not good: two-thirds of humanity are still living below the
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poverty line. The populations are multiplying before economic development is catching up.
Unhappily, to some extent the measures that are taken by the developed countries work to the detriment of the undeveloped countries. The fact is that nearly all our plans, the technological plans in the developed parts of the world, are intended to do away with employment. We see masses of statistics in which we are told that 2·75 of a man is necessary to produce, say, dolls-eyes or some other product in this country, as compared with, say, 1·95 of a man needed to do the same in France or somewhere else. The whole gearing of the technological development in the developed countries is intended to reduce the number of men performing actions, whereas in the undeveloped countries they want more work for more men. There has been very little application or effort or thought applied to this problem.
Further, as I have so often said in your Lordships' House, it is extremely unfair on these countries when from time to time the developed countries compete with them by producing artificially, and with high subsidies, goods that arc in competition with their primary products: for example, beet for sugar, and, from Africa, substitutes for rubber, sisal, pyrethrum and vipyatung. And whenever there is any balance-of-payments problem, the first thing the developed countries do is to clamp on tariffs and barriers of one sort or another to prevent the goods of the undeveloped countries from coming in. In other words, very often what little effort is applied by the developed countries, is applied in the way of aid; and that aid is more often than not aid for the manufacturers, for the industries of the developed countries, and is not really applied to the needs of the poor people of the undeveloped countries.
There is one other point and it is one concerning Dr. Banda. Dr. Banda has his feet very much on the ground. He has tried very hard to see the whole problem of Central Africa in a realistic light and, as he is right on the doorstep of the problem, I think his views of the situation should be taken far more to heart than those of others many thousands of miles away. Lately, however, Dr. Banda is said to have been considering making a

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new capital, at a cost of some £20 million, 200 miles from Zomba. This has been widely alleged in the Press and it was mentioned in one of this week's Sunday papers. Knowing Dr. Banda, I feel that there is probably some exaggeration in these reports. He is a realistic man who knows very well the problems before his country. He is alleged to be engaged in this way with some financiers from London.
So far he has avoided many of the worst follies, the ambassadorial Cadillacs and the "Odeon" Embassies of which some of these new countries have been guilty. In many cases I am afraid that we in the West do not set them a very good example in this respect; and this applies not only to ourselves but to other countries who flaunt increased public expenditure at overseas stations and in the United Nations. But Dr. Banda has avoided that. From these Benches, may I say that we wish him and his country every possible happiness and success in the days to come.
3.27 p.m.
LORD ALPORT: My Lords, if I say, as I do, that I welcome this Bill, I cannot avoid the rather uneasy feeling that I am expressing sentiments which might appear to be derogatory of the Sovereign or, at any rate, of the institution of Monarchy. I can assure your Lordships that that is not the case. But I must confess, having done my best to study these problems of the transference of power over a number of years, that it is my view that there are great advantages, both from the point of view of this country and from the point of view of the Commonwealth country becoming independent, that, except in the case of an Anglo-Saxon country, the transition should be from dependence to a republic.
We in this country are very familiar with the constitutional forms employing the authority of the Sovereign, the Queen. They are understood by public opinion here, whether they are used in relation to Parliament, in relation to the legal system or in regard to the general official relationships in this country. But they are not so easily understood in an African, or, for that matter, an Asian, country. A good many misunderstandings and a good deal of antagonism, so far as Great Britain is concerned, has continued after independence because of
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a misunderstanding of the constitutional position of the Sovereign, of the Queen, in relation to the post-independence Constitution of the country concerned. I think it has been a disadvantage, as I have stated, both to Britain and to the newly-independent country that transition direct to a republic has not taken place.
Your Lordships may think, perhaps, that it is late in the day to be making this point, but I believe I am not misrepresenting him, or anyone else who has had practical experience of these matters, when I say that my noble friend, Lord Head, after his period as High Commissioner in Nigeria, stated that he had come to the same conclusion. I think that, on the whole, the most natural and effective process of transference of power took place in the case of Malaya. It will be remembered that on that occasion the Governor, or High Commissioner as he then was, Sir Donald MacGillivray, left the country on the day before independence was declared. Immediately subsequent to that day the Yang di-Pertuan Agong was enthroned as the Constitutional Monarch of Malaya. The transition was natural, straight and direct. I think the same thing is true of the transition in the case of Zambia.
There may be other occasions for the transference of power that lie ahead of us. We know there are still a few small Commonwealth countries that will choose to become independent. I think that the noble Lords responsible for the constitutional discussions which may be undertaken with regard to their independence should consider whether in fact they should not incorporate in those discussions arrangements whereby the symbol of sovereignty immediately after independence should not continue to be the Monarchy here. These, as I say, would not be understood in a country like, for instance, Basutoland, although indeed the circumstances there, in view of the Paramount Chiefs, may be different from those in other countries where we have been negotiating independence.
My Lords, what I have said in the case of Malawi does not in any way detract from the great services which have been rendered to it, both before and after independence, by the present Governor-General, Sir Glyn Jones. I know very well that when he leaves he and his wife

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will leave behind them not only a great reputation but also part of their hearts. When this transference takes place as is signified in the Bill before us, I hope that it will not be regarded, either by the Government or by public opinion here, as being more than what it really is—a formality. As the noble Lord, Lord Ogmore, said, the country will continue to be dependent to a very large extent upon help from outside of a financial form and probably of a budgetary character for a good many years to come. I hope therefore that so far as is possible, and so far as our resources permit, Her Majesty's Government here will continue to give that assistance to Malawi.
It is true that the country is small, and I suppose in the scheme of things would be regarded as not a very important country. But it is so sited in Africa as to be a link covering the whole of East, Central and South Africa and is therefore of the greatest importance to those parts of Africa where we still retain a close interest. The security and stability which Dr. Banda has been able to maintain during these last years is of the utmost importance in that part of that troubled continent, and we can assist the people of Malawi in maintaining that stability and a progress which undoubtedly also has been made by continuing the generous support which has characterised our relationship since independence took place. I therefore welcome this Bill, my Lords, and I hope that in doing so I have made my reasons clear.
3.32 p.m.
LORD BESWICK: My Lords, I must first thank the noble Lords who have spoken for the unqualified way in which they have been able to welcome this Bill. It is most gratifying that in each case the noble Lords were able to pay tribute to Dr. Banda, and I am sure that the kindly and sympathetic words which they used will be appreciated by the new President of Malawi, not least because they come from such informed sources.
The noble Lord, Lord Ogmore, made reference, as did the noble Lord, Lord Alport, to the difficult economic situation which faces Malawi. I was asked if I had anything to add to what has been said on this point. I should just say, of course, that the Bill is to make provision
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as to the operation of the law in relation to Malawi as a Republic in the Commonwealth, and therefore, strictly speaking, any consideration of the economic situation there is not in order, or at least it would not be in order in another place. But I would say that I agree with what has been said about the difficulties which are to be found in this small and comparatively poor country. I think that nothing emphasises the difficulties which face this Republic more than the paragraph to be found in the Monckton Commission Report in which it was said that, since the proclamation of the Protectorate in 1891, twenty-eight Nyasaland Africans have completed courses of higher education. We have left that country with only twenty-eight Africans having completed courses of higher education. It is true to say that, of those twenty-eight, only two were qualified as medical practitioners and half that number of qualified medical practitioners is now represented by the President of the new Republic. That is a sobering thought which should lead us on to consider deeply the responsibility which we must still have towards this country.
The difficulties so far as material resources are concerned have been exaggerated by this break-up of the Federation. The whole economy was orientated around Rhodesia and in 1964 40 per cent. of its imports came from Rhodesia. There has been the problem of trying to build up new sources of supply, especially of course since I.D.I. to which the noble Lord, Lord Ogmore, made reference. Dr. Banda has loyally supported the policy of the United Kingdom Government in relation to Rhodesia, but we have realised that it has been quite impossible for him to embark on a policy of total sanctions in view of his dependence upon Rhodesia. However, I understand that he is trying to find new sources and gradually to change the pattern of trade. This is being done, but it presents difficulties. These difficulties, stemming from the break-up of the Federation and arising from the illegal declaration of independence in Rhodesia, have meant that expansion and development has not taken place as rapidly as one would wish. I am given to understand, although I have not the figures at my disposal, and have not been able to check the statements made by the noble Lord in his speech, that the revenue is

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now buoyant and that progress is taking place.
The noble Lord, Lord Ogmore, asked about the proposal for a new capital in Malawi. I have no information about the contact between Dr. Banda and the finance institutions in the City, but as the noble Lord himself said, Dr. Banda has his feet firmly on the ground and I think that in this matter it is his judgment which may be relied upon. It is not for us in this country to pretend to say what is best so far as this project is concerned. If there are two viewpoints on the matter, the decision on the course to be taken must be left to Dr. Banda.
The noble Lord, Lord Alport, if I may say so, made some very sensible and wise remarks about the merits of one constitutional form and another as they relate to the Heads of States. I am sure that what he said will be studied carefully and given the weight it deserves. I am grateful for the manner in which he gave us the benefit of his knowledge and experience in these matters. With all that, I hope it will be possible for us to agree to a Second Reading for this Bill.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

VETERINARY SURGEONS BILL [H.L.]
3.40 p.m.
Report of Amendments received (according to Order).
Schedule 1 [Provisions as to the Council]:
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): My Lords, I beg to move the first Amendment standing in my name on the Marshalled List. This Amendment represents a slight re-drafting of the one originally put down at Committee stage by the noble Lord, Lord Drumalbyn. I am most grateful to him for calling attention to this point, and I am glad that he recollected a similar matter when he was at the Scottish Office. The Amendment will enable the Council of the Royal College, when-even it might be appropriate, to alter the scheme for the conduct of the election of elected members of the Council, provided that the Privy Council agree. I think your Lordships will agree that this is a most useful provision to include,
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and one that makes for economy of effort and efficient administration. I hope, therefore, that your Lordships will accept this Amendment.
Amendment moved—
Page 20, line 31, at end insert—
(" . A scheme under the last foregoing paragraph may be amended by the Council, but no amendment of the scheme shall have effect unless approved by the Privy Council.").—(Lord Champion.)
LORD DRUMALBYN: My Lords, I should like to thank the noble Lord for the consideration that he has given to this matter and for the elegant form of the Amendment which he has now moved. I am most grateful.
On Question, Amendment agreed to.
LORD CHAMPION LORD CHAMPION moved to add to the Schedule:
". The additional elected members of the Council required to bring the number of such members up to twenty-four shall be elected before, and shall come into office at, the annual general meeting of the College in 1967.
. Of the persons elected members of the Council at the election of such members in 1967 one shall retire in each of the three next following years, being—

(a) that one of the successful candidates who at that election received the smallest number of votes and remains a member by virtue of being so elected, or

(b) if two or more such candidates received an equal number of votes, the candidate who has been registered on the register for the shortest period or, if two or more such candidates have been registered for a shorter period than any other but for the same period as each other, one of them chosen by lot.".

The noble Lord said: My Lords, I beg to move the second Amendment standing in my name on the Marshalled List. As I promised during the Committee stage, I have put down this Amendment to cover the rather complex transitional arrangements made necessary by increasing the number of elected members on the Council from 20 to 24 in Clause 1 of the Bill. In asking the noble Lord, Lord Drumalbyn, not to move his Amendment on this matter, I explained that there were various ways of moving from a system where five members retire each year to one where six go.
Briefly, the method we have chosen is, first, in 1967 to elect an additional four members—that is, a total of nine members—to bring the number up to 24.

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Then, in each of the next three following years, one of the six members to retire will be one of those elected in 1967. He will normally be the one with the smallest number of votes at that election. If, however, two or more have the same number of votes, the choice falls on the one who has been on the register for the shortest time. Should it then happen that two or more have been on the register for the same period of time as each other, one would be chosen by lot. It is at this point that I detect the influence of the noble Lord, Lord Drumalbyn, for in the last resort we get back to where he began—choice by lot. The Amendment embodies the transitional procedure favoured by the Royal College. Once again I invite your Lordships to agree to the Amendment standing in my name.
Amendment moved—
Page 20, line 36, at end insert the said new paragraph.—(Lord Champion.)
LORD DRUMALBYN: My Lords, again I should like to thank the noble Lord. I have no doubt at all that he has chosen a better method to deal with this matter than I could have done. As I explained at an earlier stage, the method I suggested was put down largely because it was easier to draft in that way. I do not think that it matters very much which way it is done, because if a member of the Council is still acceptable he can be re-elected in any case, and it would not really matter very much how we dealt with the retirement procedure.
There is one small point about which I am still not quite clear—that is, what happens at the 1966 elections? It may be that they have already taken place but if they have not there will be a slight difficulty because of the terms of Clause 1(2), which requires 6 members to retire, instead of 5 as previously.
LORD CHAMPION: My Lords, I hate to admit that I am not quite sure about the point which the noble Lord has put to me. However, if there is any difficulty arising out of this, I will certainly put it right at a later stage. I do not think there is. But I am not sure on this point. I think it is best to be frank with the House about this rather than to "waffle".
On Question, Amendment agreed to.

MATRIMONIAL HOMES BILL [H.L.]
3.45 p.m.
Order of the Day for the Second Reading read.
BARONESS SUMMERSKILL: My Lords, I beg to move the Second Reading of the Matrimonial Homes Bill. I have had sufficient experience of this House and of another place to be aware that, in the field of social reform, the British prefer to proceed by stages; and the Bill before your Lordships to-day is one step forward in a field of reform which I hope commends itself to the House. Furthermore, I am well aware that, before Parliament approves a measure such as I have described, it wishes to be assured that the matter under consideration has been fully examined already by some authoritative body. I can give the House the assurance that the Bill before it to-day embodies provisions which give substantial effect to recommendations made by the Royal Commission on Marriage and Divorce which examined this problem very fully, and sat for four years from 1951 to 1954.
We are all familiar with the grave housing shortage to-day and the difficulties which confront a wife who has been deserted by her husband to find accommodation for herself and her children. The main object of this Bill is to help this woman who, in most cases, has given her services over the years to the family without any entitlement to a share of the family income. May I emphasise this point? Over a long married life a woman has no right to make substantial savings from the house-keeping money which she handles. Therefore, when a marriage breaks up and she loses her home her situation is precarious. No doubt the House will be surprised to learn that a deserted wife and her children are denied the right to stay in the home, because the wife appeared to possess this right before the recent decision in the case of the National Provincial Bank v. Ainsworth, in 1965. May I say that I am glad to see in his place the noble and learned Lord, Lord Cohen, who knows so much about this case, and I hope that later the noble and learned Lord, Lord Denning, will join us, because he also is fully aware of what has happened in this field in recent years.

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Prior to this decision, the Denning Convention, as it was called, stemming from the Bendall v. McWhirter case in 1952, established that a deserted wife left in occupation of the home belonging to her husband had an equity to remain there, and this equity would prevail against any third party who later might acquire the property with knowledge of her position. Generally speaking, a purchaser of registered land is bound only by encumbrances which are registered as land charges. An exception is made for overriding interests which include the rights of every person in actual occupation of the land.
In the Ainsworth case, the Court of Appeal held that a deserted wife's equity was an overriding interest. The House of Lords, however, reversed this decision, holding that a wife's rights in relation to the occupation of a home belonging to her husband were purely personal rights, flowing from her status as a wife. This, they argued, did not confer upon her any equity which was capable of binding a subsequent purchaser of the property. Therefore, as the law stands to-day, a deserted wife can be evicted from her home by a person to whom her husband has sold or given the property, unless the transaction is a mere sham.
Their Lordships who heard this case in this House expressed some reluctance in arriving at their decision, for they recognised, as I have already said, that this left the wife in a precarious position. The noble and learned Lord, Lord Cohen, and the noble and learned Lord, Lord Upjohn, suggested that consideration should be given to implementing certain recommendations in the Report of the Royal Commission on Marriage and Divorce, to the effect that if one spouse has left the other in the home, he or she should not be able to turn out the other without an order of the court; and further, that a spouse's rights of occupation in the home should be registered as a land charge in order to afford protection to a purchaser.
I can assure the House that this would not be done in any arbitrary fashion. The circumstances of the husband's leaving, the conduct of the husband and wife, and their respective means, would be taken into account by the court in exercising its discretion on any application by the husband to obtain possession of the property. Furthermore, the recommendation pro-
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tects not only a wife, but a husband who is left in occupation of a home belonging to his wife. There might well be cases where it would be reasonable that the husband should be entitled to continue to live in his wife's house if she has deserted him; for instance, if he has young children in his care.
I have one fault to find with the recommendations of the Royal Commission, and I hope I shall have the support of the House in this matter. They protect only a spouse who has been left in the home. They do nothing for a husband or a wife who has been driven from the home by the conduct of the other. In such a case a husband or a wife who has been constructively deserted ought to be able to apply to the court for an order restoring possession of the home. The Royal Commission's recommendations embodied in Clause 3 also make provision for dealing with the occupation of the home after a decree of divorce, nullity or judicial separation: and I shall say something about that later.
I propose to comment briefly—and I promise your Lordships that I shall be as brief as possible—on each clause, but before doing so I should like to express my deep gratitude to those who have given me their expert assistance in helping me to draft this Bill. It is a Bill full of technicalities which it has not been easy to draft. Whether it is in order or not, I should like to express my gratitude to Mrs. Edie, who is a wonderful draftswoman. I am delighted to think that we share the same name in a different form.
Clause 1 provides that a spouse who is not legally entitled to occupy a dwelling house is to have the right, if in occupation, not to be evicted except by leave of the court; and the right, if not in occupation, to re-enter and occupy the house with the leave of the court. Subsections (2) and (4) give the court wide powers, on an application by either spouse, to enforce, restrict or terminate the rights of occupation, having regard to the conduct of the husband and wife and the needs of the family. For example, the court may direct the spouse who owns the house to give up one part of it to the other spouse; it may except part of the house from a spouse's rights of occupation, particularly a part used for the other's business; it may impose on

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either husband or wife obligations as to the repair and maintenance of the house or the discharge of any liabilities in respect of it. It may be that a wife by her conduct has driven her husband from a home belonging to him. The court might refuse to allow her to stay there unless she has young children in her care and cannot afford other accommodation. The court may make an order for only a limited period and subsequently review the whole matter in the light of new circumstances.
Subsection (5) provides that where a spouse is entitled under this clause to occupy the home, any payment made by him or her in respect of rent, rates or mortgage and other outgoings is to have the same effect as if made by the one legally entitled to occupy the house. Furthermore, it requires either spouse's occupation to be treated for the purposes of the Rent Acts as possession by the other. Subsection (6) enables the jurisdiction conferred on the court to be exercised by the High Court or a county court. Subsection (8) states that the Bill is to apply only to a house which has been a matrimonial home, and that the rights of occupation are to continue only so long, as the marriage subsists and the other spouse is legally entitled to occupy the house.
Now we come to Clause 2(1). This provides that where a spouse is entitled to occupy a dwelling house by virtue of an estate or interest, the other's rights of occupation are to be a charge on that estate or interest so as to be binding on all persons who subsequently acquire the property. The clause thus restores to a deserted wife the equity to remain in the home which she was thought to possess before the decision in the case of the National Provincial Bank v. Ainsworth. In order to avoid injustice to an innocent third party, the charge will not be enforceable against a purchaser for value unless it is registered as a land charge.
Subsection (2) of Clause 2 provides that such right will come to an end on the death of the other spouse or the termination of the marriage, unless, in the event of some matrimonial dispute, the court sees fit to direct otherwise. The purpose of this provision is to give the
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deserted wife, in certain circumstances only, protection against eviction from her husband's house on his death. Subsections (3) and (4) deal with the effect of a spouse's rights of occupation on a third party who acquires an interest in the property subject to that spouse's charge. The third party is to be treated as if the other spouse's interest had been transferred to him. Under subsection (5) these rights will also come to an end where the spouse entitled to the house becomes bankrupt or dies insolvent.
The Bill does not give the wife a charge where the husband holds under a statutory tenancy, because such a tenancy, like a licence, is not transferable. If the tenant dies, his wife, if living with him at the time of his death, will have a right to succeed to the statutory tenancy. If the marriage is terminated by a decree of divorce or nullity, the wife will have a right to apply under Clause 3 of the Bill for the statutory tenancy to be vested in her. The general rule with regard to the priority of equitable interests is that an earlier interest prevails over a later one. If a house is already owned by a husband subject to a mortgage at the date of the marriage or at the date of the commencement of this Act, the mortgage will have priority over the charge for the wife's rights of occupation. The charge created by Clause 2 will be binding on third parties who acquire an interest in the house, but a purchaser for valuable consideration will be bound only if the charge is registered as a land charge. All this is set out in more detail in paragraph 3 of the Schedule.
Subsection (6) makes a charge in respect of a spouse's rights registrable under the Land Charges Act 1925, and such a charge will be void against a purchaser unless it is registered before the completion of the purchase. No doubt noble Lords are aware that there are five classes of land charges, known as A to E. The charge under this Bill will be a sixth class; namely, Class F. Subsection (7) requires the registration of a spouse's charge to be effected by registering a notice or caution under the Land Registration Act 1925, for it would, of course, defeat the object of the Bill if the purchaser of registered land had to inspect the land to see whether the vendor had a spouse in possession with rights of occupation under the Bill.

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Clause 3 makes provision for the case in which the dwelling house is occupied by one spouse under a tenancy to which the Rent Acts apply, or under a statutory tenancy, and the marriage is terminated by a decree of divorce or nullity. In such circumstances the court may, before the decree is made absolute, make an order transferring the tenancy to the other spouse. This gives effect to paragraph 697 in the Royal Commission Report, of which copies are obtainable, I believe, in the Printed Paper Office. If noble Lords would care to read that paragraph they will see why the Royal Commission came to this decision. An application for the transference can be made not only by the spouse who has obtained the decree but also by the spouse against whom the decree was pronounced.
Subsection (3) of Clause 3 deals with the case where a statutory tenant dies and the tenancy vests in his widow or a woman member of the tenant's family who has been living in that accommodation for a certain period. However, Section 13 of the Rent Act 1965 now permits a second succession. Where a husband's statutory tenancy is transferred to his wife and he was the original statutory tenant and not a successor, his wife will step into his shoes and it will be possible to have a first succession on her death and a second succession on the successor's death.
Subsection (4) leaves it to the Court to decide whether or not the spouse in whose favour an Order is made is to be responsible for any outstanding liabilities in respect of the house.
Subsections (5) and (6) are, I think, self-explanatory. Subsection (7) lays down that where a husband holds the matrimonial home under a tenancy to which the Rent Acts apply his wife will be able, on the dissolution or annulment of the marriage, to ask the Court either to continue her rights of occupation under Clause 1 or to transfer the tenancy to her under Clause 3.
My Lords, I have tried to explain this Bill in a short time, but I am quite sure your Lordships realise that there is a good deal of detail, although simple detail, which I could have used to elaborate it. I hope that at least I have made it clear that there is nothing revolutionary in this Bill. I would remind the House
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that in Canada and the United States of America the homestead laws protect the deserted wife, and in many European countries community of property gives her security. But I am afraid that Britain lags behind in this respect. The United Nations Commission on the Status of Women made a recommendation which has been adopted by the Economic and Social Council which includes the provision of statutory matrimonial regimes affording women equal rights with respect to separate or common property during marriage. Therefore, I hope your Lordships will support this limited measure and, by so doing, recognise the valuable contribution which the woman in the homemakes to our society, and that at least in return she and her children should not be denied the security of that home in the event of her marriage proving unsuccessful. I beg to move.
Moved, That the Bill be now read 2a.—(Baroness Summerskill)
4.5 p.m.
LORD DERWENT: My Lords, I am sure we are all grateful to the noble Baroness for the clarity with which she has explained this Bill. To the layman such as myself, it is a somewhat difficult Bill in its drafting, as are all legal matters. I am not one of those who think that men and women should be equal in all circumstances, but I agree with the noble Baroness that at any rate so far as the matrimonial home is concerned they should have equal rights. I say straight away that we on these Benches support the principle underlying this Bill, and I hope your Lordships will give it a Second Reading. I am speaking before various noble and learned Lords, because if I say anything which is nonsense they will be able to put it right. In any case, they will be able to explain two difficulties which I find in the contents of the Bill.
I do not wish to say anything about Clause 1. As I read it, this clause appears to me to be correct. There is one matter in Clause 2 about which I am not altogether happy, and that is in subsection (1). This is a subsection whereby, if I may use the words of the noble Baroness, the equity in the property is given to the other spouse (we have to say it in those terms because the owner of the property may be the husband or

27
the wife) at whichever is the latest of the following dates: the date when the spouse so entitled acquires the estate or interest, the date of the marriage, or the date of the commencement of the Bill when it becomes law. As a layman, I cannot see the necessity for this. It seems to me that when it comes to the disposal of property it may well create certain difficulties. In spite of all we read in the newspapers, the ordinary marriage goes along very well: we are dealing here with marriages in which estrangement occurs.
Why is it necessary at this early date to provide for the other spouse's right to an equity in the property? It seems to me that the proper moment to provide for that is at the moment of estrangement, and I should have thought that it would prevent difficulties if when the moment of estrangement or argument arises, it were possible for either spouse to go to the county court for an order. I can see difficulties arising in certain cases where, when both the husband and wife agree to the disposal of the property, it might in certain circumstances be difficult for the purchaser to find out whether he had any absent right in this property. If I am wrong about this, I hope that one of the noble and learned Lords, or the noble Baroness, will put me right. It seems to me that the trouble with subsection (1) is that it comes into effect before it is needed, and possibly too early.
The other clause I am a little unhappy about is Clause 3. I think it is drafted in too wide terms. Before going into the circumstances may I, instead of going through all the clause, read to your Lordships what the Explanatory Memorandum says about this clause? It explains the object of the clause very clearly in simple words which even I can understand, and that is not always the case with an Explanatory Memorandum. It says this:
Clause 3 makes provision for the case in which the dwelling house is occupied by one spouse under a tenancy to which the Rent Acts apply or under a statutory tenancy and the marriage is terminated by a decree of divorce or nullity. In such circumstances the court may, before the decree is made absolute, make an order transferring the tenancy to the other spouse or, as the case may be, substituting the other spouse as the statutory tenant.
So far as I can see, circumstances can arise under the wording of this clause
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where for practical purposes the rights of the landlord or of the mortgagor can be done away with. This is the case where a divorce has taken or is taking place. It may be that the spouse who owns the property goes bankrupt, and one can even envisage certain cases where, knowing that one party or the other who owns the house is going bankrupt, between them they can arrange a divorce. So far as I can see, once the decree nisi is given, there is no possibility of recovery of any money owing at the time of the divorce by the bankrupt owner of the house, whether it is to the landlord or to the mortgagor. I cannot think that that is right. This is, mark you, money owed, perhaps for nonpayment of rent, it maybe some time before the divorce. No recovery can be made of the premises and, owing to bankruptcy, the whole tenancy is switched to the other spouse who has not gone bankrupt and you cannot collect the money previously owing. That is how I read the clause, and I believe I am right in reading it in that way. If I am, I think we shall have to amend this clause at the next stage of the Bill.
Apart from the points which I have raised, I think this is a good Bill, and I hope that the noble and learned Lords who are to speak to-day will deal with the matters I have raised so that I may be fully prepared for the Committee stage; and perhaps the noble Baroness will also deal with those points. I hope your Lordships will give this Bill a Second Reading.
4.13 p.m.
LORD WILBERFORCE: My Lords, I am very glad to be one of those to speak on this Bill from these Benches and to congratulate, as I am sure everyone would wish to do, the noble Baroness on the initiative she has taken in launching this reform in the Legislature. I am certainly one of those who agree with her that the position of the married woman in this country with respect to property is out of date, is out of line with many other countries, and needs to be brought into line in substantial respects. This Bill, in so far as it does that, is to be welcomed.
Perhaps I might be permitted to say two things by way of preliminary before coming to the Bill itself. The first is that it does point out in a rather striking and

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interesting way the difference, the dividing line, between cases where the law can be reformed by decisions of the courts and other cases where intervention by the Legislature is concerned. As the noble Baroness has said, this problem has been before the courts for a number of years and they did their best to solve the problem. There was undoubtedly some disappointment felt when your Lordships' House, in a Committee of which I was a member, decided in the Ainsworth case that that was not the right road and, as some of us thought, that the right road was that of legislation. When one looks at this Bill and sees the number of matters with which it had to deal in some detail—technical matters, the machinery provided and so on—one may well think that that approach was right and that this is a case for intervention by legislative enactment, which is of course the reason why the Bill is to be welcomed.
The second point is this. When the course of legislation is chosen it has the advantage over what can be done in the courts that those who promote legislation are in a position to investigate and inquire and research into the scale of the problem. Judges cannot do that, but before a Bill is presented that can be done. One wants to know before one legislates what the scale of the problem is, what the social implications of the changes are, where the shoe pinches without the legislation, and what the consequences of change may be. I must say I feel some doubt whether that process has been sufficiently carried out in this case. It is, of course, perfectly true that the Royal Commission on Marriage and Divorce investigated this subject, and there are some very valuable passages in their Report in which they examine the existing state of the law and make recommendations for change, but they do not, so far as I know, really go into the scale of the problem and tell us how many cases we are dealing with and how far-reaching are the difficulties which the Bill seeks to cure.
As has been pointed out, we are not concerned here with all wives, all married women; we are not even concerned with all divorced or separated wives. We are concerned with a limited class of persons who are deserted by the other spouse and left in precarious occupation of a matrimonial home. Not even
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all those cases require to be dealt with by legislation, because in the case where the house is held on a statutory tenancy, a protected tenancy, the courts have already found the means of dealing with the situation, and the position of the wife left in the house is reasonably secure. If one looks at the reported cases which the Courts had to consider before the case came to the House of Lords, one sees there were very few in which hardship could have been shown to result because this Bill had not been passed—probably two or three. That is not to say that such cases do not exist. Of course they exist and hardship, or a possible source of hardship, exists. But what one has to do in considering this Bill, I would venture to suggest, is to compare what one knows of the scale of the hardship with the nature of the remedy proposed, and that brings one to the Bill and what is suggested by it.
What it does in fact is to apply to all homes which are what is broadly called matrimonial homes the provisions of this Bill—and I take up the point made by the noble Lord, Lord Derwent, that it applies from the date of the marriage, because that is what Clause 2 says. And therefore at once one sees that one is committed to a very substantial course of legislative interference with property and the title to property. In that respect the Bill does, as I read it, a great deal more than merely to restore the law as it was thought possibly to be before the decisions of your Lordships' House. Those decisions dealt only with the case of a deserted wife and the equity she was supposed to have. But now we have, particularly in the provisions relating to the charge and to the registration of the charge, what I believe may be a serious fetter on dealings in property, and what will certainly, I would think, add to the expenses and complications of mortgages on houses and other dealings. It may also, by enabling registration to be made, give opportunities for pressure by one spouse against another.
The first question one is prompted to ask on this Bill is why it is necessary to go further than the Royal Commission on Marriage and Divorce did in their recommendations. The Bill in fact goes considerably further as regards registration provisions. If I may refer to the

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critical passage which is in paragraph 665, the Royal Commission Report says this:
"To give the deserted wife complete protection it would be necessary to give her a right, as against all the world, to stay on in the matrimonial home until ordered to leave by the court. The decisive objection to that course"—
I note the word "decisive"—
"…is the unsatisfactory and insecure position in which it would place third parties."
Then the Commission refer to the difficulties of a purchaser, and continue,
"On the other hand, to give the wife a right merely against her husband personally"—
that is on the lines of Clause 1—
"would be equally unsatisfactory in as much as she would then have no protection against her husband's disposing of his interest in the home to third parties."
Then they say, in the next paragraph—
"We have adopted a middle course."
What the Commission propose is set out in paragraph 685. After saying if one spouse has left the other in the matrimonial home he or she should not be able to turn out the other—that is, a personal right as between husband and wife not to be turned out—the Commission continue, in sub-paragraph (b):
"the other spouse should be able to apply to the court for an order restraining…that spouse from disposing of any interest in the home…or surrendering the tenancy;"—
then there are these words—"
"the order, when in restraint of the spouse disposing of any interest in the home or surrendering the tenancy, should be capable of registration as a charge on the land."
I venture to think that that picks up the point which was made by the noble Lord, Lord Derwent, that the Royal Commission suggested that there should be not registration of a right which would come into existence immediately after the marriage or the acquisition of a house, but only registration when the court has thought fit to intervene on the application of the deserted spouse and to protect her right to remain in the home. This is, of course, a less complete protection to the wife than the Bill proposes to give. It is, as the Royal Commission said, a compromise. But, as at present advised, I think that it may be a more satisfactory compromise between the protection one wants to give to the married woman and
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the difficulties which otherwise will arise if one gives the protection too widely—difficulties in the way of increasing legal costs, having lawyers in and delay.
Under the Bill as it stands, the position is that either the one spouse who is not the owner of the house will register his or her possible right to occupation immediately on the marriage, in which case, before any dealings with the house can take place—any mortgage or sale—the right of that spouse will have to be cleared off in some way (I would venture to throw in here the comment that one cannot get rid of a charge on the land charges register without employing a solicitor, so one has lawyers brought in at that point) or, if that is not done, if the right is not registered on marriage, then it will be done on the desertion, when the marriage threatens to break up, as one would think it normally would be. But such a case could be dealt with either under the existing law, because the court can grant an injunction to prevent ejection of a deserted spouse, or by adopting the Royal Commission recommendation; and one does not need to go so far as this Bill does in Clause 2.
For those reasons I venture to hope that as this Bill progresses, and as perhaps the noble and learned Lord the Lord Chancellor considers how far it is to be supported, reflection might be given to the question whether the charging provisions, Clause 2 and the Schedule, might not be changed or reduced so as not to over-legislate, not to give over-protection, not to cure one evilat the cost of creating another, which might be, and I think would be, extremely widespread.
Having said that, may I briefly refer to two or three other points which might perhaps be the subject of consideration later? I mention only the major points now, so perhaps the noble Baroness may consider them and deal with them in her reply, if she so wishes. When one looks as Clause 1(1) of the Bill one sees that a far-reaching right is given, in paragraph (a),
"a right not to be evicted or excluded from the dwelling house or any part thereof…"
That would seem to have this consequence: that a wife who is the owner of a house cannot turn the key on her husband, either in respect of the house or, as I read it, in respect of her bedroom, without obtaining the leave of the court,

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whatever matrimonial offences may have been committed by the husband. If she is not the owner of the house, then, of course, she is not fettered in this way. This seems a rather curious distinction. Then one has the converse case: that, as the Bill stands, the other spouse, not the owner of the house, is in a position to register a charge against the house without any desertion, or threat of desertion. That may cause a good deal of hardship to the person who is the owner of the house.
Of course, the answer is that all this is subject to the leave of the court, and the court can, and presumably will, deal with the matter justly as between the parties. But it takes time to get to the court; and it costs money. I would suggest that consideration might be given to enabling magistrates' courts, as well as the High Court and county courts, to deal with matters of this kind. They can deal with things more quickly, and more expeditiously in some cases, and as there may be a number of small matters between small people, it might be worth while bringing magistrates' courts into the machinery.
My Lords, the next word in Clause 1 which to my mind creates some difficulty—and it is one that I am sure will be present to the mind of the noble and learned Lord the Lord Chancellor—is the word "occupy". This word is the lawyers' bugbear, wherever it occurs. It is undoubtedly used in parts in line 5 in the normal legal sense of exclusive occupation, in the same sense as one uses it in connection with rateable occupation. But I am not sure that the word is so used in that sense in later context in the same clause, or, if it is, whether it ought to be so used. It seems to me that it might be advisable either to substitute, or to add as an alternative to "occupation" a right of residence in the house, so as not to create complications where two persons are in occupation, either of the house or of parts of it, and not to raise questions as to what the rights as between those persons, or as between them and third parties, may be. It is a difficult choice to make, but I have a feeling that, as drafted, the use of the word "occupation" only is likely to give rise to trouble.
Then in subsection (3), in paragraphs (a), (b) and (c), particularly paragraph (b),
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we find that the court is given power to require periodic payments to be made in respect of the occupation. That, of course, is necessary, for hardship would be created if there were no means of paying the rent or the mortgage payments; and there is a similar provision in subsection (5) in relation to repairs. That is quite sound, but I am left in some doubt as to what the nature of those payments is when the court makes an order for them to be made. Are they recoverable as a civil debt? Are they a condition which, if not continued, will remove the right to stay in the house? What is the nature of them? I feel that, whatever the answer is, it ought to be made plain in the Bill, otherwise there will be litigation and trouble about it.
I should like to raise one other point, a fairly small one, on Clause 2(5) where it says that where a spouse—that is, the husband—becomes bankrupt or assigns his property for the benefit of his creditors, then any rights existing under the early part of theBill—that is, the rights of the deserted spouse—shall determine. I wonder whether that does not go too far in favour of the husband and his creditors. It would not seem necessary to do more than give a protection to the husband and his creditors in so far as they require to be satisfied and leave intact the rights of the deserted spouse. It does not seem necessary in every case to go so far as to put an absolute and complete end to the deserted wife's rights if it is not necessary in order that the creditors may be satisfied.
I believe that the Bill can be a useful addition to the Statute Book, which no doubt will be subject to improvement in due course. The only plea I would make is that if improvements are to be made they will be in terms of simplification rather than the reverse, and in the direction of reducing the possibility of legal intervention in a number of harmless property transactions.
4.32 p.m.
BARONESS EMMET OF AMBERLEY: My Lords, I am very pleased indeed to be able to support the noble Lady in her endeavour to bring into being a much-needed modification of the law. Some years ago, with a Committee which had studied this matter in detail, and with the help of Mr. Howard Sabin of Hare Court,

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Temple, we drafted a Bill on the same subject. However, there was insufficient support in another place, and we were not able to proceed with it. Therefore, I am delighted that it should be brought up here in a more enlightened House, where obviously it will get a far greater measure of support. Lady Summerskill kindly supplied me with some background material which came into my possession this week, but it appeared to me to entail some complicated alterations in the law of tenancy and property which I personally have not fully digested, but two noble Lords who have spoken have already raised some points which did occur to me.
My interest in the subject dates back quite a long time when for some years I was Chairman of a domestic relations court. I remember many sad cases of deserted wives and children being turned out of their house, with nowhere to go. I disagree with the noble and learned Lord, Lord Wilberforce, when he says that there are only few such cases. I do not think we hear of those cases where parents take in the deserted wife and children. This is not really a very satisfactory solution. The shortage of housing, which still persists, makes the problem very much more acute.
The primary object of our Bill in 1951–1952, which was a simple Bill, was to ensure that the matrimonial home remained in possession of the spouse to whom had been awarded the custody of the children. The paramount necessity is that the children should have a home; that the children's interests should govern the whole of these alterations. Yesterday I was speaking to a Swedish M.P. who was visiting this country, and she told me that in her country this manner of proceeding in the case of a deserted wife and children has worked most successfully for the past ten years. It is taken as a matter of course. In Sweden, if there is some difficulty about the actual matrimonial home being retained, the husband is obliged to find another independent fiat or house for the wife and children.
It seems to me that the noble Lady's Bill has gone a good deal further than this, in that in it she suggests that either spouse, even if childless, should have the opportunity of going to court, as it were,
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to claim the home. I gather that in Sweden this is not necessary because, in that very advanced country, on marriage goods are held in common, and there is an equal division of goods if there is a separation or a divorce. The difficulty that the noble Lady is trying to overcome here does not exist in that country. I wonder whether we should not wait, before going as far as she has gone, until we can go even further and adopt the Swedish method. If I tried to put myself in the place of the judge in court, where there are no children I should find it very difficult to decide between one party and another as to who should have the home. After my experience as Chairman of a domestic relations court I have found, as no doubt have many experienced people, that where difficulties arise in marriage it is more often than not six of one and half a dozen of the other, and that it would require other outstanding bad characteristics on the part of one spouse or another to make a decision easily. Where there are children, of course that does not arise.
There is one other point which I should like to make, which I am sure has not escaped the noble Lady, but which I have not seen mentioned in the Bill. I remember that when I was dealing with these things, if a wife was given a separation and maintenance allowance she had to leave her husband's roof within three months or the order lapsed. It may be that if they went to court the house would be allocated to the wife, but in that event it might take quite some time for the matter to be settled. I do not know whether there is any provision that a sub judice case should not invalidate an order. Again, if part of the matrimonial home is allocated to the wife and part remains in the possession of the husband, where is the matrimonial "roof" she has to leave? That point also has to be covered.
Therefore, except for the complications which arise with regard to leasehold property, which have been touched upon already, the Bill has my strong support. If we come across troubles which are too great to solve on the property side, I hope that the noble Lady will consider going forward on the simple issue of the deserted spouse who has the charge of the children. I am very glad to support her Bill. I regret to say that at half

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past five I have to leave for a short while, but I hope to be here to hear the Lord Chancellor winding up.
4.38 p.m.
LORD LLOYD OF HAMPSTEAD: My Lords, I support the Bill as a valuable piece of legislation in a limited, but none the less important, area. I am sure that we all owe a debt to the noble Lady, Baroness Summerskill, for her energy and humanity in promoting this Bill, and also for the lucid manner in which she has presented it to us. I am glad to know that some members of the Law Commission and their staff have been able to render some assistance to the noble Lady in drafting the Bill, which I am sure has greatly enhanced its effectiveness. I should like to concentrate briefly on the principle of the Bill rather than go into some of the details which have been discussed by some of your Lordships and which perhaps are more appropriate for consideration in Committee.
The background to this Bill affords a remarkable illustration of the difficulties encountered in our legal system when judicial attempts are made to adapt well-established legal rules to meet new social needs. It is no secret that the creation of the right of the deserted wife to occupy the matrimonial home has been largely due to the legal learning and skill and also, if he will permit me to say so, the broad humanity of our present Master of the Rolls, the noble and learned Lord, Lord Denning, whom I am happy to see with us this afternoon, and whose speech will follow mine.
The rigid doctrine of the separate property of the spouses was established at the end of the last century by the Married Women's Property Act, and this legislation was intended to improve the status of the wife by ensuring the protection of her separate property. Unfortunately, it took no account of the fact that in our society a wife, at any rate among the less affluent sections of the community, has little or no property of her own. The husband is generally the principal, or even the sole, wage-earner in the family, especially where there are young children. This doctrine of the separation of property has placed a deserted wife whose husband is either the owner or the tenant of the matrimonial home in an exceedingly vulnerable position.
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Generally speaking, in a direct dispute between husband and wife the court could and can afford reasonable protection to the wife. If, however, the husband sells his interest in the home to some third person—even, as in one reported case, to his own mistress—the wife who may be living in the house with her children can be summarily ejected. No court order would be necessary for this purpose, because not even the new Section 32 of the Rent Act 1965 would apply, as presumably she would not be a lawful occupier within that section.
It was to meet flagrant injustices of this kind that some of our judges, and more particularly the noble and learned Lord, Lord Denning, strove to ease the rigidities of our property law to avoid so unjust a conclusion. They did so by establishing a new equitable right, or equity, in favour of a deserted wife, which would bind even the purchaser of the home, provided he had notice of the occupation of the wife. This was a remarkable development, appearing, as it did, to create a new proprietary right, and it aroused a great deal of discussion, debate and, perhaps, opposition. It was to some extent a field day for the lawyers; but in the meantime, at any rate, a considerable number of deserving wives and their children were afforded protection in regard to their homes.
One of the main complaints raised regarding this new right attempted to be created by our courts was that it led to uncertainty in regard to the incidence of property rights. For instance, the purchaser of a house might be under the necessity not only of investigating who was actually in occupation of the premises being sold but also, where the vendor of the house was a married man, of informing himself of the matrimonial relations of the spouses. A purchaser who discovered that the vendor was not living on the premises but that his wife was, might be put on inquiry as to whether the husband had in fact deserted his wife. This hardly seemed to be the sort of inquiry which a purchaser of an ordinary house could be expected to embark upon.
Be that as it may, as we all know, this House in its judicial capacity has now finally decided that this doctrine is not good law. Yet however much there may

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be said—and I am sure it is not necessary for me to add anything to the great display of learning by the learned Law Lords in that case—for the technical exposition of the law which the Judges in that case embarked upon, to demonstrate convincingly, I think, to many members of the legal profession that this right never did and never could exist under our law, the fact remains that during the fifteen years or so in which this right enjoyed a transitory and ephemeral life it undoubtedly did much to achieve justice between spouses and to protect a wife who had been deserted by her husband and who might otherwise have been ruthlessly deprived of her former home, without any real possibility, having regard to the housing situation as it has been for many years, of securing any adequate alternative accommodation.
The noble and learned Lord, Lord Wilberforce, has expressed some doubt whether we really know if there are a great many such cases. The answer may be that we do not; but surely we can all be satisfied that there are some such cases, and if there are some such cases of injustice—and there may conceivably be many, for the noble and learned Lord does not deny that possibility—surely it must be appropriate that we should introduce legislation to restore, and possibly improve, the situation as it had been laid down in these earlier cases now overruled. The Ainsworth case which overruled this doctrine is, perhaps, a classic illustration of the difficulty with which courts are faced when they try to deal with this sort of situation, because they are not able to take an overall view and deal with all the complexities that arise. Therefore, it seems to be preeminently a case to be dealt with by comprehensive legislation.
The immense advantage of dealing with this kind of problem by legislation is, in my view, sufficiently demonstrated by the provision in this new Bill which deals with the question of third parties affected by the right of occupation of the spouse created under Clause 1 of the Bill. Such a right under the Bill, as we have seen, is now to be registrable as a land charge, and if registered will bind even a purchaser of the legal interest in the dwelling-house. At first sight, and perhaps this is why we have heard some
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criticisms, the idea of a wife's being able to register her charge while still living contentedly with her husband, apparently in anticipation of some future breakdown of the marriage, may seem somewhat strange or even absurd. Indeed, from this point of view this Bill, as I would concede, goes beyond the recommendations of the Royal Commission on Marriage and Divorce, which simply suggested that where a wife had been left in the home she would have the right to apply to the court for an order. Then, if the court ultimately made an order restraining the husband from disposing of the house, that order could be registrable.
I gather it has been suggested by one or two speakers that it would be better to adhere to this principle put forward by the Royal Commission. With the greatest respect to those speakers, I would suggest that the present proposal is a better one, and I think there are various reasons for this. The first is the one which the noble Baroness, Lady Summerskill, mentioned, and that is that this Act applies not merely to the case of a wife left in occupation, but also to a case where the wife has been, for instance, put out of the house. But I suggest that there are other reasons, too. First, the right of the wife to occupy the matrimonial home is one which I submit ought to arise by reason of her married status, and not simply upon an act of desertion. It is something which ought to be inherent in the married position that a wife is entitled to occupation of the matrimonial home. That may be said to be a rather theoretical point, but the remaining points are, I suggest, severely practical.
The second point I would urge is that the right to register is a simpler, cheaper and more expeditious remedy than an application to the court as contemplated by the Royal Commission. Take, for example, the situation where a husband and wife have a serious row, as a result of which either the wife or the husband leaves the home. In that situation, of course, it may be that neither party will go to the length of taking legal advice, but if legal advice is taken—and I would remind your Lordships that if legal action of any kind is contemplated the probability is that legal advice would be taken—then under the Bill, if it becomes law, the solicitor, for instance, can advise the

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wife, "In view of the situation which has arisen, and in order to protect your future position, you ought to authorise me to go along and register your interest in the house, so that if your husband decides to dispose of it you will not be left out in the street". Under the Royal Commission's proposal, in every case you would have to make an application to the court, which would be a more complicated and expensive business and would seem to involve unnecessary litigation.
My Lords, the last reason that I would adduce in favour of the present proposal is that, under the Royal Commission's proposal, you can register only an actual order of the court, so that until an order has been made the wife is helpless to protect her position against third parties—and this may often involve bolting the stable door after the horse has departed. It seems to be suggested that the present proposal may be unjust to the husband in his capacity as a property owner, but I should have thought that there were two answers to this. In the first place, he can in any event apply to the court under Clause 1(2) of the Bill if he thinks that any injustice results, and the court has power to make any order, including rescinding the wife's rights under the Act. In any event—and this, I think, is a far more fundamental point—we are dealing here with the question of a home, of security for a wife and children, and I should have thought that the proper view to take was that this is a right which ought to take priority, precedence, over strict property rights vested in the husband.
My Lords, I should like to commend, if I may, the fact that the noble Lady, Baroness Summerskill, has made the Bill applicable to both sexes equally. One knows that she is a great supporter of the notion of equality of the sexes (although I imagine her battles are generally done on behalf of the feminine sex) but one is gratified to see that she has had the opportunity of doing battle on behalf of both sexes, and has suggested that this right should avail both men and women. It is interesting to note that, so far as I understand the law pre-existing before the House of Lords decision, the courts apparently took the view that the right was one which would avail only a deserted wife and not a deserted husband.
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I suggest, too, that this Bill is right in not attempting to tackle the problem of the contents of a house. It might well be said, "Why not deal with the contents as well as the house—the furniture, and so on?" I think the answer to that is that so many problems are raised in regard to chattel interests, hire-purchase, bankruptcy, bills of sale, and all the other problems, that it would probably have made this Bill far too complex, and I think the noble Lady is quite right to confine her attention to the house itself. As for the jurisdiction of the court, if I may say so with deference I entirely agree with the suggestion of the noble and learned Lord, Lord Wilberforce, that the magistrates' court should be used in this matter; and I should have thought, too, that there would be great value in applying to this type of issue the informal and cheap procedure under Section 17 of the Married Women's Property Act, which has been found so successful in dealing with disputes, regarding property between husband and wife directly.
The curious tale of the deserted wife's right which never was, despite repeated decisions in the Court of Appeal in support of it over many years, gives added significance, I suggest, to one passage in the Law Commission's first programme, which perhaps I may quote. They say:
"It is eminently desirable that the legal system should be capable of making a rapid remedial response to the defects exposed by judicial comment or otherwise in the course of the day-to-day operation of the law".
Consideration of the Ainsworth decision was one of the items appearing in the Law Commissioners' first programme, but I would remind the House that the Commission very rightly mentioned this matter in its appropriate context, as involving consideration of the whole field of family property law. In many other countries, instead of insisting on total separation of property, there are various special matrimonial property régimes, such as the typical case where all property acquired by the spouses during the marriage is treated as common property.
My Lords, it is obvious that there is a need to explore this whole problem, but it is a very extensive and difficult one. For my part, I am delighted to welcome the appearance of this Bill to

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put right what is on any view a manifest injustice, without waiting upon the much more complex legislation which would be required to place on a sounder and more sensible foundation the whole question of matrimonial and family property. I therefore warmly welcome the introduction of the Bill, and I hope that it will commend itself to your Lordships in all parts of the House.
4.58 p.m.
LORD DENNING: My Lords, I was sorry that my judicial duties prevented me from being present to hear the noble Lady, Baroness Summerskill, introduce the Second Reading of this Bill, but I should like to thank her most sincerely for having done so. Indeed, this is a field in which, for my sins, perhaps, I have been somewhat involved. It was nearly twenty years ago that a case came before me, as a Judge in chambers, in which a husband who owned a house had left in it his wife, who had an invalid child of 17 years of age needing her complete attention. That husband brought a claim for possession, saying that the wife had no right there. The Master thought it so plain that he ordered the wife and the child out. That case came before me, as I say, nearly twenty years ago. I declined to order her out. I held that it was a matter for the discretion of the judge—and that decision has never been challenged or quarrelled with since.
The next step was the case of a husband who held a statutory tenancy after the war, and who lived with his wife and family. He, too, left his wife in the house. He then arranged with the landlord that the landlord should give notice to quit and turn her out. There was no tenant there, and the landlord claimed to be able to turn out this wife and child. But in the Court of Appeal we held that, so long as the rent was paid and the wife was ready to pay the rent, the landlord could not turn her out. So we protected her there, both against her husband and against the landlord. Those decisions have never been challenged in the courts.
Then we came to the question which has caused this controversy. We had the case where the husband left his wife, went with his new mistress and transferred his house into the name of the new mistress
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and sold it to her. And the new mistress, having bought the house, sought to turn out the wife. I am glad to say that the judge who tried it refused. And we had the case where a husband left, sold the house to his brother and got the brother to sue the wife. Again, it was said, "The brother can get her out; she has no right against him". Again we refused to let the brother turn out the wife. Then a serious matter arose when a bank came in and lent money to a husband—and, of course, banks and their money have to be protected. However, when the bank sought to turn out the wife, we in the Court of Appeal declined to treat the bank as being in any better position than other purchasers. But I am sorry to say that we were wrong. We have been wrong all the way through. We ought to have let that mistress turn out the wife; we ought to have let that brother turn out the wife; and, of course, the bank turned out the wife. As this House has declared judicially, the law is that even though the purchaser knows exactly that the wife has been deserted, knows all about the situation when he purchases, yet the wife can be turned out. I am glad—and I hope that this House will be also—that this Bill removes this injustice.
Let me say how I welcome Clauses 1 and 2, which in substance affirm the previous law but very rightly and wisely do not confine it to the deserted wife. It is extended, as I believe we should have done if we had had the chance, to the deserted husband; and the provision is not dependent on fault but is quite general and gives the right to the court to allow the spouse to remain in the house during the course of the case; and allows it to apply against the landlord, too. Clauses 1 and 2 are much to be welcomed.
Clause 2 is, I think, the one which deals with the problem I mentioned, the question of the purchaser, the person who buys from the husband and seeks to turn the wife out. As I have said, the law is that even though he knows the wife is there and has been deserted, he can turn her out. What this provision says is that the wife will be protected if before this purchase she goes and registers her charge as a charge on the Land Register. My Lords, just think. This is why I have hesitated. Is the poor wife who has not resorted to lawyers and who

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remains in the house hoping that her deserting husband will return, always at hand, always likely to go to a solicitor and say, "Please register this as a charge on the Land Register"? Unless she does so, she has no protection. I welcome the fact that immediately after the marriage the wife can go along and register the charge. I would recommend strongly that in future all wives, whenever their matrimonial home is bought in the husband's name, immediately, without waiting for any trouble to arise, should go and register their right in case in the future something should go wrong with the marriage. Otherwise, as the Bill stands, it is only if the wife gets in her charge in time before the husband' lens that she is to be protected. Indeed, I would not agree, if I may say so, with the Royal Commission who limit it to the case that, after the husband has gone, she can go and apply to the court and get an order and then register the charge. Why wait until he has gone? Indeed, the steed may be stolen. He may have sold the house to the purchaser long before then.
If those interested in property rights insist that a charge shall be registered in order to protect the wife (for that is what it is), then I would say to all wives that, before there is any trouble at all, let it be automatic that whenever the house is bought in the husband's name the wife goes along and registers her charge, and then she will be protected. It ought to become a custom of the country. There is nothing wrong there. Why should a wife not have a homestead right? It should be there. If that became the understanding of the country, I would support this second clause, but I do not like the idea of the poor, ignorant wife, deserted by her husband, waiting at home for him to come back, when meanwhile he can go and sell the house to a purchaser who knows all about the situation, and if she has not registered then be can turn her out.
However, there it is. The remedy for that, if this Bill remains as it is, is for all wives, or husbands if the house is in the wife's name, to go and register their charge. There is nothing wrong with that. I do not think there is the slightest thing wrong in that; and everyone will be protected. It might well become a custom of the country. We then should have wives and husbands within their matri-
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monial homes properly protected and not liable to be ousted in these days of housing shortage at the whim of one of the parties when they did not deserve to be ousted. That is my one qualification on that.
There is one further Clause I will mention. This deals with the case where the husband and wife own the property jointly. We have had many cases in our courts where husband and wife jointly own the property; and if something we have held in the Court of Appeal is right, neither can turn the other out and neither can sell his interest to the other. That has been questioned by some noble Lords. It is said that one spouse of a joint ownership can sell his interest and compel a sale. I suggest that that matter might be covered by this Bill. As to the suggestion that there have not been many such cases hitherto, we in the Court of Appeal perhaps see a good deal of life. We have seen many cases. In the past the protection which the Court of Appeal has given to deserted wives has in many cases been valuable. Having said so much, I warmly support this Bill. I would have gone further and restored the Court of Appeal decision. I cannot do that, but I warmly support this Bill.
5.8 p.m.
LORD COHEN: My Lords, I did not intend to intervene in the debate, but I have been somewhat provoked to do so by what I regard as an attack on those who sat in the Ainsworth case. I am unrepentant as regards that decision; but, equally, I am grateful to the noble Baroness for introducing this Bill. I may have—I do not say I shall have—some criticisms to make on details when it reaches the Committee stage. I am grateful to the noble Lord, Lord Derwent, for his comment on the second clause, because the point that worries me a little is this: I do not think we ought to make it too difficult for a husband, when he is looking for a matrimonial home, to borrow money. I am not entirely happy that if the Bill goes through as it is drafted it will not become increasingly difficult to persuade banks and building societies to advance money for the purchase of matrimonial homes if they are likely to be faced with trouble in the event of a breakdown in the marriage. I hope that the noble Baroness will be able to remove my fears. But, subject to that comment, my chief object in intervening was to

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express my gratitude to her for following up a suggestion which was, after all, made in some of our judgments in that case, that effect should be given to the recommendations of the Royal Commission. If the noble Baroness has gone a little further, it does not follow that she is not right.
5.10 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I suppose that no Member of your Lordships' House would think it right that if a man deserts his wife and children he should be able at the same time to turn her out of the matrimonial home and into the street. We are all conscious that this has long been a defect in our law. Of course no court would make such an order, but the difficulty always was that the husband could sell the house over his wife's head, and when the purchaser knocked on the door she had no answer. It was no doubt in an attempt to achieve a more just position that the Court of Appeal created the deserted wife's equity, for which your Lordships' House has now held that there was no real legal basis.
Within a very short time of that decision in the Ainsworth case, my noble friend Lady Summerskill asked me whether the then Government were going to introduce immediate legislation to restore the previous position, and I had to say that that Government were fully committed in relation to legislation for that Session, but that if she cared to introduce a Bill I would give her such help as I could. The General Election then followed, but I am glad that, with the assistance of the Law Commission and their draftsmen, such assistance has been provided. The Government welcome this Bill and are grateful to my noble friend for having introduced it.
My Lords, various points have been raised and, so far as the Government are concerned, we welcome the interest which has been shown in the Bill and the observations which have been made, particularly, if I may say so, the observations made by the noble and learned Lords of Appeal whose assistance I always welcome so much on a Bill of this kind. The noble Lord, Lord Derwent, regretted that the date of the charge went so far back; and I think he felt that the charge ought to arise
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only when the matrimonial differences arose. The difficulty is that if there is to be a charge it is essential that everybody should know from what date it arises, and a matrimonial estrangement is not one of those precise things for which an exact date can be fixed. The noble Lord suggested that under Clause 3 there might be a collusive divorce arranged by a husband who was about to go bankrupt, but I can assure him that the Bill would not have that effect, because at the end of Clause 3(2), and in any case under Clause 3(4), the court has power to order the liabilities to be assumed, both jointly and severally, by both spouses.
The noble and learned Lord, Lord Wilberforce, said, rightly, that the Bill goes further than the law as it was before The Ainsworth case, and, indeed, goes beyond the recommendations of the Royal Commission. It has, I suggest, necessarily to go beyond the law as it was before your Lordships' House decided the Ainsworth case because of the difficulties which did exist about the deserted wife's equity. The Court of Appeal had done their best; but if one takes the case of a purchaser for value without notice, then, of course, questions arise about what notice he ought to have, and one got in some cases the difficult inquiry whether some purchaser who had gone to see the house and was shown round by a woman might be held to have had notice if he did not ask her how she was getting on with her husband. So if we were to have legislation, it was necessary to produce something more specific and practicable.
It is true that this goes in some respects beyond the recommendations of the Royal Commission, because the Royal Commission recommended in substance that there should be a registrable charge but that the charge should not be created until registered. This Bill goes beyond the previous Case Law, in that first it is not necessary to establish desertion by the owner of the matrimonial home. That, I understand, has met with general agreement. Secondly, the Bill protects either spouse, and not merely the wife; and I think all your Lordships have approved of that. Thirdly it not only protects a spouse left in occupation of the matrimonial home but enables the spouse who has been ejected to get back

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into it. Fourthly, it gives the court wide powers to enforce, regulate or terminate the rights of occupation conferred by the Bill; to impose terms as to payment of an occupation rent and outgoings and thirdly to continue the rights of occupation even after the dissolution of the marriage or the death of the other spouse. And, fifthly, it makes the rights of occupation a charge on the matrimonial home which is capable of being registered in a public register.
My Lords, the noble and learned Lord, Lord Wilberforce, also raised some question as to terminology which I am sure will receive careful attention by those concerned before the Committee stage. I am sure they will consider, too, the suggestion which both he and my noble friend Lord Lloyd of Hampstead made, that proceedings should be capable of being taken in the magistrates' courts. I am not at all sure about that point, because this is, after all, somewhat similar to Section 17 cases, which sometimes give rise to matters of considerable complexity. So I am not sure that justices would really form a suitable tribunal. However, I am sure that the suggestion will be carefully considered. The noble Baroness, Lady Emmet of Amberley, spoke about the effect of separation orders, but this Bill will not affect them, because it does not touch that situation at all. It is a fact that a separation order ends if consortium is continued for three months; and the Bill does not affect that situation one way or the other.
We were all grateful for the summary given by my noble friend Lord Lloyd of Hampstead, so admirably and accurately, if I may say so, of the history in this matter I think that the noble and learned Lord, Lord Denning, complains only as to the Bill in relation to the need to register, so far as a bona fide purchaser is concerned. His point as to joint ownership will I am sure be considered. It may be easy to give a complete right against anyone, whether registered or not, but one has to consider the position of the bona fide purchaser, who may be a man who has sold his own house or put all his life savings into a house which he is buying for the purpose of its being his home. This Bill already goes further than the Royal Commission did in enabling the wife to have a charge against everyone else from the very outset. Whether all
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wives would be well advised to register their charges at once, I do not know. It costs something. That, I suggest, it is for every woman to decide for herself. Whether it will become the practice or not, I am not sure. My Lords, the Government welcome this Bill, and hope that your Lordships will now give it a Second Reading.
5.19 p.m.
BARONESS SUMMERSKILL: My Lords, it is not often that as a Parliamentarian I am rendered speechless, but today I am overwhelmed by your Lordships' kindness, and I am conscious of the fact that a number of noble Lords have left their work, their hard, grinding work, very often in unhealthy surroundings, and have come to this House to give me their support. May I thank all noble Lords for their generosity in viewing this Bill in such a sympathetic manner? I feel that it would be effrontery on my part to weigh the opinions of noble and learned Lords, and in no circumstances could I do so. I would only say, with your Lordships' permission, that all the points that have been raised will be carefully considered, and if Amendments are moved on Committee stage, we can then thresh them out thoroughly.
I want to say only one or two things on a broad basis. My noble and learned friend the Lord Chancellor answered the noble Lord, Lord Derwent, who asked why it was necessary to invite a woman to register a charge at an early stage of marriage. The relationship between the sexes is a little difficult to define. One cannot say that it is always happy or that it is always unhappy. There are shades of difference in the feeling of a woman for a man. A man may be married to a woman who explodes when she is upset and who may even take up something and throw it at him. The quarrel may end there. The husband may be an entirely different type, a man of modest and quiet character, who may say, "This surely must be the end of our marriage". He may well think that he cannot tolerate this behaviour and immediately take action with regard to selling the house, feeling that he is entirely justified in doing this. But the wife may say, "I always do that sort of thing when I am upset". And although she may have thrown something at him, she may look forward to having children.

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As a doctor in a local consulting room, one hears more tales from the heart than even judges hear. A case which I know well is of a man and a woman who had been married for thirty years. He took a young mistress and put her in a flat in town, and the wife, who lived on the edge of London, knew nothing about it for eighteen months, although during that period he had been difficult to live with. Finally, when she discovered what he had done, she said that the end of the marriage had come, because she had forgiven him so many times in the past. But during the eighteen months the husband, who was rather a wily person, had arranged to sell his house. He had made himself ready for the moment when his wife said, "I have had enough". The wife had to go.
I suggest, with the noble and learned Lord, Lord Denning, that a woman should be able to establish her rights in the early stages of marriage. If this was the custom of the country, nobody would object to it. It just happens that in this Bill we are challenging certain conventions and suggesting an advance—namely, that for the first time a woman should take action in order to defend herself. On Clause 3, the noble Lord will see that that is concerned with tenancy and the points he raised on bankruptcy and ownership may not arise, but I will certainly look into everything he said.
The noble Lord, Lord Wilberforce, suggested that we should go back to the compromise suggested in the Report of the Royal Commission. I said in my opening remarks that in this Bill we are going a little further and that I thought that in all the circumstances we were justified, but I will certainly reconsider this in the light of what the noble Lord said, though I am not committing myself to accepting his suggestion.
The suggestion about using the magistrates' courts—unless, of course, legal experts say that this is not practical—appeals to me tremendously. As everybody knows, magistrates' courts in poor areas are places with which poor people are familiar, and they might be used very effectively. I did not know that the word "occupy" was a bugbear to lawyers. The noble Lord said that he would prefer "residence" and this will be looked at. On the question of periodical payments
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and the nature of these payments, may I say that we shall have to go into these a little further, and into the question of simplification, too.
I am sorry to see that the noble Baroness, Lady Emmet of Amberley, has gone, because I was so pleased that she gave me her support to-day. She mentioned what is happening in Sweden, and that is reflected in all the Scandinavian countries. She suggested that if the House was not sympathetic to the Bill, perhaps I would redraft it and deal only with women with children. We have already heard the noble and learned Lord, Lord Denning, quote a case, with which I am familiar, of the woman who may have one child and is herself an invalid. There is also the case of the woman who, when she gets older, finds her husband taking a young mistress. It could be argued that all the children of such a woman are now adult and independent, but she has devoted her life to contributing to the home. Are we to say that at the age of 60, because she has no dependent children, she must get out of the home because her husband considers her not so attractive as she was at 20 and takes a young mistress? We really must be practical in this matter and recognise the facts of life.
I must thank my noble friend Lord Lloyd of Hampstead for his most constructive contribution. Finally, I must thank the Master of the Rolls and again must apologise for drawing him away from his work. I dropped a little note to him, "If you are not doing anything, could you look in?" and nothing pleased me better than to get a little note in response, "I'll try". My noble and learned friend is a great feminist, if I may dare to say so—because some people have the curious idea that to be a feminist is a little unnatural. We shall have feminists until we have established some kind of equal society. The noble and learned Lord's contribution is of tremendous importance. The noble and learned Lord, Lord Wilberforce, thought that registration would cost a wife money, but I am advised that it would not cost her anything. She can register even without going to a solicitor.
Again, I would thank all noble Lords for the wonderful contributions they have made to this debate and for their support. My final word is that I hope that all noble

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Lords present who have not spoken will nevertheless support the Bill.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

LAND REGISTRATION BILL [H.L.]
5.29 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD JESSEL in the Chair.]
Clause 1 [Amendments of Land Registration Act 1925]:
On Question, Whether Clause 1 shall stand part of the Bill?
THE LORD CHANCELLOR: On Clause 1 stand part, your Lordships may remember that during the Second Reading debate the noble Viscount, Lord Colville of Culross, asked me whether the provision with regard to indemnity made by the Bill was the result of the Fund being in low water—although I do not think he used that phrase. He said:
"I must say that when I first read it, and before I had heard the noble Lord's explanation, I wondered whether it was because there had been some undue run on the Land Registry's Indemnity Fund caused by people claiming indemnity although they themselves had been in the wrong, though not fraudulent, in causing the mistake to be made."—[OFFICIAL RFPORT, Vol. 274 (No. 17), col. 1302; 24/5/66.]
I said in reply:
"That is not the case at all. The total amount paid out is relatively small. Speaking from memory, I think it is something like £20,000 during the whole time that the Fund has been in existence." (col. 1308.)
I have since had an opportunity of checking that, and I find it is in fact £30,000. But the amount—and this is over a long period of years—standing to the credit of the Fund to-day is about £88,000. So there is no question of its being insolvent. But there might at any time be one very large claim arising, unless this Bill is passed, due to the applicant's own fault. It is that situation which
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the clause is designed to meet. I thought that, having mentioned the figure of £20,000 and finding it to be £30,000, I should say so.
LORD DERWENT: Unfortunately, my noble and learned friend Lord Colville of Culross could not be here to-day, but I will make certain that he is asked to read what the noble and learned Lord has said.
Clause 1 agreed to.
Clause 2 [Citation, construction, repeals and commencement]:
THE LORD CHANCELLOR: This Amendment is moved simply to correct a drafting error. As at present drawn, Clause 2(2) reads:
"This section shall be construed as one with the Land Registration Act 1925."
In fact, Clause 1 also is concerned with the Land Registration Act 1925, and therefore that Act ought to be construed with this Bill as a whole and not merely with Clause 2 of it. Accordingly this clause should read:
"This Act "—
not "This section"—
"shall be construed as one with the Land Registration Act 1925".
I am sorry the point was not noticed before. I beg to move.
Amendment moved—
Page 2, line 17, leave out ("section") and insert ("Act").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Schedule agreed to.
House resumed:
Bill reported, with an Amendment.

WHITLEY BAY PIER BILL [H.L.]
The CHAIRMAN OF COMMITTEES informed the House that the opposition to the Bill was withdrawn. The Order made on April 21 last discharged, and Bill committed to the Committee on Unopposed Bills.
BLACKFRIARS BRIDGEHEAD IMPROVEMENTS BILL [H.L.]
Reported, with Amendments.