§ 3.36 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR
My Lords, I beg to move that this Bill be now read a second time. During the course of the debate on divorce law reform which we had in your Lordships' House in November I referred in some detail to the proposals now set forward in this Bill. They are proposals which have had a long history. The matter was first considered by the Royal Commission on Divorce and Matrimonial Causes, under the chairmanship of Lord Gorell, in 1912. That Commission rejected the suggestion that any divorce cases should be tried in the county courts, though they recommended that nine or ten selected county court judges should be appointed to sit as Commissioners of the High Court. However, nothing was done on that recommendation.
169 At the end of the war, when there was a great increase in the number of divorce cases, a Committee was appointed, of which the noble and learned Lord, Lord Denning (then a Judge of the Divorce Division), was Chairman, and some of us proposed to that Committee that undefended cases should be tried in the county courts. One reason at that time—and this was before the days of the Legal Aid and Advice Act—was that there were a great many women who were entitled to a divorce but who simply could not obtain one because, whether or not they could have afforded the cost of a county court case, they certainly could not afford the cost of a High Court case. Nevertheless, that proposal was objected to by the Churches, and the conclusion of that Committee was what I think I have previously described as the usual brilliant English compromise; namely, that undefended cases—and, indeed, some defended ones—should be heard by county court judges dressed up as High Court Judges for the day. This pleased everybody, because the cases were still in the High Court, although use was able to be made of the much greater number of county court judges to try the cases.
The Royal Commission on Marriage and Divorce, which was presided over by the noble and learned Lord, Lord Morton of Henryton, and reported in 1956, thought it unsatisfactory that what was nominally a High Court jurisdiction should be exercised by Commissioners, and they expressed the hope that in due time we should be able to return to a situation in which High Court Judges heard all these cases. But the fact is that for the last twenty years by far the greater number of divorce cases has been disposed of by the county court judges, and, I think, without any dissatisfaction. Last year, out of a total of 38,000 undefended cases, the county court judges tried 34,000. In addition, they tried 894 of what are called the short defended cases—cases which it is anticipated will not last more than three hours. Of course, divorce cases cannot be tried in every town where county court judges sit, but only at what are known as divorce towns, of which there are at present 49 outside London. In London two county court judges every day attend at the Law Courts to try undefended cases.
170 I am not the first to suggest that the time has come now to recognise the realities of the situation and give the county court judges in name the jurisdiction which they have in substance exercised for the past twenty years. It was, in fact, suggested by my noble predecessor on the Woolsack. What is proposed is that in future every matrimonial cause should begin in a county court designated by the Lord Chancellor as a divorce county court, or else begin in the Principal Probate Registry in London, which will be treated for this purpose as if it were a divorce county court. This is simply a practical question. If you have 40,000 cases a year, of which 36,000 are undefended, do you start all 40,000 in the High Court and then transfer 36,000 to the county court, or do you start 40,000 in the county court from which you have to transfer only 4,000? The latter is obviously the more practical. It means that if the case is proceeding in London it will be transferred from the county court side (if it is transferred to the High Court) to the High Court side of the Principal Registry, and if it is proceeding in a divorce county court outside London it will be transferred to the nearest district registry of the High Court, which will be in the same building and the same man will be both county court registrar and High Court registrar. When the case comes to be tried, it will, if it is defended, be tried by a High Court Judge and not a county court judge. Of course, a good deal of the detailed administrative arrangements have to be made by rules of court.
Clause 1 requires every matrimonial cause to be begun in a divorce county court, and the intention is that these should be the courts at places at which there is at present a district registry of the High Court with divorce jurisdiction. There are at present 101 registries of this kind at each of which the county court registrar is also the district registrar of the High Court, so that he and his staff will already have expert knowledge of the divorce procedure. There is no intention of giving the new jurisdiction to the county courts at the smaller places where the staff have no experience of the work.
The only county courts where the registrar is not at present a district registrar with divorce experience which may nevertheless become divorce county 171 courts, are likely to be some half-dozen courts on the periphery of Greater London at places like Croydon, Kingston or Ilford. There is, of course, no district registry of the High Court at these places because in Greater London all High Court cases have to start in the Strand. But when the county courts are given divorce jurisdiction it may be convenient for litigants and practitioners on the borders of Greater London to be able to start their cases in a few selected county courts, although it does not necessarily follow that the cases will be tried there, because it may be more convenient for them to be tried by a county court judge sitting at a central court. Owing to the absence of any suitable county court in Greater London in which all the undefended cases could be tried, I think it will in fact be necessary for the county court judges to sit at the Law Courts, as they do at present, but they will then be sitting as county court judges and not as Commissioners of the High Court.
Clause 2 of the Bill will give the divorce county courts power in undefended cases to make orders for maintenance, custody of children, and the like. Where the case itself is undefended, the county court will be able to deal with the questions of custody and maintenance even though these may be matters on which the parties are unable to agree. This is in fact what they do now, and have done for the last twenty years, without any dissatisfaction.
It would plainly be very inconvenient to have to send all disputes of this kind to the High Court, but the rules will enable the county court judge to send to the High Court any disputes which appear to him to raise difficult or complicated issues which he thinks it better not to deal with himself. The only forms of ancillary relief which the county court judges will not be able to deal with are the power to make an order for the payment of maintenance out of a deceased person's estate for the benefit of his or her former wife or husband, and the power to vary a maintenance agreement after the death of one of the parties. The power to order the payment of maintenance out of a deceased person's estate is really linked up with the corresponding power of the Chancery Division under 172 the Inheritance (Family Provision) Act, and it seems better to confine the county courts to the limited jurisdiction which Parliament conferred on them by the Family Provision Act last year in the case of small estates.
Clause 4 deals with the position of the Principal Probate Registry in which all divorce proceedings in London are at present begun. As I have said, it will in future be possible for cases to continue to be begun in the Registry, which will be treated for this purpose as if it were a divorce county court so far as undefended cases are concerned. The rules to be made under the Bill will make it possible to apply to proceedings in the Principal Probate Registry the usual county court procedure under which process is served by officials of the court and riot by the parties or their solicitors, and this will, I hope, lead to a sensible simplification and cheapening of the procedure.
Clause 7 provides for the setting up of a new rule-making authority, which will make rules of court governing the procedure in all matrimonial causes whether in the High Court or the county court. It will obviously be convenient to have one self-contained set of Matrimonial Causes Rules under which the procedure will be linked with that in the county court so far as undefended cases are concerned, and with the High Court procedure so far as defended cases are concerned.
The Government naturally hope that one important effect of this Bill will be a substantial saving to the Legal Aid Fund. The cost of providing legal aid in civil cases has increased five times in the last seven years and much the greater par: of the cost is attributable to divorce proceedings. The total cost of legal aid was over £5½ million in the year 1965–66, of which over £3¼ million was represented by the cost of divorce. It is surely evident that whatever is possible should be done to reduce these charges which have been mounting steadily in recent years. It is not possible to say with any accuracy what exactly the savings will be, although a figure of £400,000 a year was mentioned by my right honourable friend the Attorney General in another place some time ago. Much, of course, is bound to depend on the extent to which solicitors avail themselves of their right of audience in the county court. I think it would be 173 unrealistic to suppose that solicitors will in future conduct the majority of undefended cases themselves, and we shall have to see, accordingly, how it works out. I would rather anticipate that solicitors will do about 25 per cent. of the cases themselves.
One of the ways in which costs could be reduced would be if solicitors were ready to accept fixed costs instead of spending time and money in the preparation of detailed hills of costs which then have to be taxed by a court official. At present taxation is necessary in legal aid cases by virtue of the provisions of the Legal Aid and Advice Act, but under Clause 9 of the Bill it will be possible to make rules dispensing with the need for taxation. The intention is, of course, that a solicitor should continue to have the right to demand taxation if he wishes, but I anticipate that if he receives on taxation no more than he would have been allowed under the scale of fixed costs he will have to pay the cost of the taxation out of his own pocket.
My Lords, like the Criminal Law Bill, this Bill raises no question of Party politics at all. Indeed, he will tell your Lordships if I am wrong, but I think the noble and learned Viscount, Lord Dilhorne, would probably have put similar proposals before the House if his Administration had continued. The only objections of any kind I have heard have come in part from my clerical friends and in part from my barrister friends. So far as my clerical friends are concerned, I have been told what we should all agree that it is very important to uphold the dignity and status of matrimony. I have been told. "After all, divorce cases are now heard in the High Court, and this means, I suppose, by a High Court Judge in a dignified court with the more formal procedure of the High Court, whereas, with your proposals, as I understand, in future divorce cases will be tried by a county court judge in a scruffy kind of court, sandwiched, I suppose, between a running-down case and a hire-purchase case; This would very much lower the whole status of matrimony." indeed, it has been suggested to me that if a marriage can be dissolved in a county court people will rush round committing adultery like anything.
I have been able to reassure them. In the first place, I have pointed out that 174 when a person is concerned in a divorce case he or she comes into contact with the law at three points. First of all, there is the office. One goes to the office to have the petition settled initially, and it is the office to which the respondent also has to go. The second point is that before the case is heard disputes may arise. The respondent may say, "I am charged with adultery, but you do not say when or where. I want further particulars". If the petitioner will not give them, the matter goes before a minor judge called s registrar, and that hearing takes place in a court or room called an office. Similarly, the wife may want an order against her husband for a weekly or monthly sum for herself and the children pending the case being heard. This again is heard by the registrar. I am afraid registrars have a great deal of experience of husbands who always make out that their income is less than it is. In London these offices are in Somerset House. Of course, as part of the High Court they are High Court offices, and the registrars are High Court registrars.
There are also offices outside London; and not only an office, but a registrar, who again is a High Court registrar because it is a High Court district registry. But that High Court district registrar is also the local county court registrar, and the High Court office and the county court office are combined. So that at the moment, in relation to undefended cases and a few defended cases also, outside London disputes are in fact heard by men who, of course, are lawyers, and who are not only High Court registrars but county court registrars as well.
Therefore, if the changes provided for in this Bill are carried out, in London one will still be able to go to the High Court district registry in the Strand, which will be treated under the Bill as a county court registry. The disputes will be heard, and one will then be able to go to the Law Courts or to the county court judge for the cases to be tried. Outside London, the man who deals with the cases at present is a High Court registrar, and he will simply do the same thing, the only difference being that he will be wearing his county court hat.
When I told my clerical friend this he was amazed. He said, "I had no idea what goes on at the moment. The only thing I cannot understand is this: if 175 what you say is right, and everything is going on as it is now, what changes will the Bill make?" The answer to that is that it is a modest Bill, and the only changes it makes are these. First of all, the county court judge, instead of hearing the case in the black robes of the High Court judge, will wear his own purple robes, and instead of being called "My Lord", which he is not, he will be called "Your Honour", which he is. Secondly, at present the county court judges outside London may sit in any court. If the assize court is free they may sit there; if it is being used as an assize court or as a court of quarter sessions, then they use their own rooms. When it is transferred to the county court judge he will always sit in his own court.
The third difference will be that in Greater London, at points as far removed from Central London as Croydon, Brent-ford, Ilford, and so on, there will be half a-dozen county courts, because if, for instance, the parties, the solicitors and the witnesses all live in Croydon, it seems quite unnecessary to make them go to London. They will still be entitled to deal with the registrar in the Strand and to have their cases tried there if they prefer it. If they do not, it is proposed that there should be half-a-dozen county courts at the periphery which would be made divorce county courts. They would be supplied with registrars from the Divorce Registry, properly trained for the work.
The only two other changes are these. First, solicitors have the right of audience in the county court but not in the High Court, and when the cases are in the county court the parties will no longer be compelled, as they are now, to have a barrister as well as a solicitor for an uncontested divorce case which lasts, on average, about twelve minutes. That brings me to the last point, which is the cost to the taxpayer. As your Lordships may know, I am an enthusiast about legal aid and I do not feel like apologising if it costs money. I know of no other country which has a legal aid system anything like as good as this; but, of course, there must be a cost to the taxpayers.
In 1962, and the years prior to that, the amount which the taxpayer had to 176 find each year worked out at about £1 million. The next year it was £2 million, the year after that £3 million, and the year after that £4 million. Last year it was £5 million, and now it is running at something like £5¾ million. About 70 per cent. of this goes on divorce. The reason why such a high proportion goes on divorce is that in Queen's Bench actions, for example, 85 per cent. of the cases are successful, and the costs are then recovered from the other side. The reason why the divorce proportion is so high is because, in undefended cases in particular, so much of it represents the case of a woman who has been deserted by her husband, who may or may not have gone off with somebody else, and she has no money at all.
As your Lordships know, under our legal aid scheme everybody has to pay what he or she can afford and the State only makes up the remainder; but in the case of deserted wives as a rule they simply cannot afford to contribute anything at all, and it is not always easy at the end of the day to get it out of a husband. I have heard many Members of your Lordships' House say that the Government ought to reduce public expenditure. Well, here is one Minister who is humbly doing his bit—I hope with your Lordships'approval—because, while there is nothing wrong with legal aid, we want to save the taxpayer what we can, and this ought to make a sizable contribution.
Finally, with regard to my barrister friend, he goes on about the need to uphold the status and dignity of matrimony, and then he says what a terrible thing it would be if solicitors handled cases in the courts on their own, as one cannot trust a solicitor as one can a barrister. But, of course, I have known him a long time, and I simply say, "Come off it, George! The fear of the Bar is simply that they are going to lose a certain amount of work to the solicitors, and you remember the language you used when there was that demarcation dispute between the shipwrights and the boilermakers". That is really all it is.
I have heard it said that this change might delay the rationalisation of our divorce law. If I thought that, I should not be putting this Bill before your Lordships' House. I am delighted to hear that the gap in views which separated the 177 committee appointed by the most reverend Primate and the Law Commission is being narrowed, and I am as much in favour as any Member of your Lordships' House of a real rationalisation of our law. It has long been suggested that to have a Probate, Divorce and Admiralty Division is an extraordinary historical anachronism: that Probate ought to be done by the Chancery Division which construes wills, and that Admiralty ought to be allied to the Commercial Court. We could then have a Family Division of the High Court, and possibly family courts throughout the country.
This is not perhaps the time to consider the composition of these courts. I have always been a good deal in favour of courts which consist of both lawyers and laymen. This choice you give the civil litigant of a jury— "Would you like all The facts found by one lawyer or by 12 laymen?"—is the most extraordinary choice, when you come to think of it. Any sensible man would say "I should not like either; I should like two laymen and one lawyer sitting together and the majority to decide." A family court might well consist of a judge of the status of a county court judge, and either two or four justices of the peace, whose experience in matrimonial affairs it would be a pity to lose. However, I must not pursue that theme now. All I want to say is that I am quite sure that if this Bill is passed into law it will in no way prejudice a real reform of our divorce law, and, if Parliament thinks it right, the constitution of family courts. But it is clear, I think, that we shall not see a Bill in that field this year. I see no real reason why we might not see it next year. I beg to move.
§ LORD WELLS-PESTELL
My Lords, before the noble and learned Lord concludes, may I be permitted to ask him a question? I have not quite followed his argument about this procedure lessening the cost of divorce. As I understand the situation (I speak as a layman, and therefore may be quite wrong), the cost of an undefended divorce is in the region of £120 to £140, give or take a few pounds. If the action is undertaken by a solicitor, will the cost be very much less to the litigant, bearing in mind that in an undefended divorce case, I understand, the barrister gets very little, and presumably 178 what is saved in a barrister's fee may be required by the solicitor for the extra work he has to do? I may be quite wrong, but I wonder if the noble and learned Lord could explain this.
§ THE LORD CHANCELLOR
Certainly my Lords. One of the consequences of the fact that divorce cases have always remained, technically, in the High Court is not only that the litigants must have a barrister as well as a solicitor but that the lawyers' fees are on the High Court scale. An undefended divorce case is not, however, in any real sense, a High Court case. I appreciate that it does not consist simply of the twelve minutes of the hearing: obviously, solicitors have to take careful statements from clients, and possibly from witnesses, and see whether or not the action is going to be defended, and so on. At the same time, the case is not of the size as the ordinary High Court case. If, therefore, these cases are heard in the county courts, obviously the lawyers will be paid on the county court scale instead of on the High Court scale. The exact scale is in process of being agreed with them, and one might save something, I think, by reason of the fact that if one provides some agreed fixed fee for the average case solicitors are usually prepared to take less because they do not have to draw up bills of costs and attend for taxation and all that.
Moreover, whereas in the High Court you have to serve your own process, in the county court the court serves the process for you. And of course where no counsel has to be employed there will obviously be a substantial saving there. I can only say, on the best estimate I can give, that the saving would appear to be of the order of about £400,000 a year. This is, of course, after discussing what lower fees than the present fees would be paid both with the Bar Council and with the Law Society. Clearly, however, one cannot be exact until one knows what proportion of the cases will in fact be done by solicitors.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 4.5 p.m.
§ VISCOUNT DILHORNE
My Lords, this is for me both an unusual and a slightly embarrassing occasion, for to-day I can say that I agree with all that the 179 noble and learned Lord the Lord Chancellor has said in support of this Bill; and, as your Lordships know, to adapt a phrase which the noble and learned Lord recently used, he is an "awful Socialist". No one, so far as I am aware, has suggested that I have any unfortunate tendencies in that direction, and I hope that my support for this Bill will not give rise to any such inference.
I was very glad to hear the noble and learned Lord say in the course of his speech that the passage of this Bill would in no way delay the rationalisation of our divorce law, and very glad indeed to find that the opposing views are getting closer together. I am sure that that is urgently needed, and I hope very much that the Lord Chancellor's hope that a Bill may be included next Session will be realised. But what has been said by him about that should not let us minimise the importance of this Bill. It may not sound very exciting, but the effect of it will make a considerable difference to a number of people; and I would support it.
There are, as the noble and learned Lord the Lord Chancellor said, some who oppose it; some lawyers whom I know and he knows dislike it intensely, but it is never easy to get agreement among lawyers, even when they belong to the same Party. I think the same can be said about right reverend Prelates, and I am glad to see that that Bench is so fully occupied to-day. It is very rare indeed that they all speak with the same voice. Indeed, the only recent occasion on which I can remember that happening is when all who spoke from that Bench spoke in favour of Lord Arran's Bill.
I suspect that such opposition as there is to this Bill will come from lawyers and the Churches, and I believe that the opposition of the Churches is founded, as the Lord Chancellor has indicated, on a complete misconception of what this Bill does. For, contrary to what appears to be thought in some quarters, this Bill contains no relaxation at all of the existing law relating to divorce. None of the grounds on which a divorce can be obtained is changed in any particular. All the Bill does is to make it possible for the Lord Chancellor to order trial of undefended divorce cases in the county courts. When this power is 180 exercised, there will be more courts where such cases can be heard, and that will be for the convenience of litigants. It will be easier for them to get to the court of trial, and only in that sense does the Bill make the obtaining of divorce easier. Objection to this Bill, therefore, must mean that those who are opposed to it do not think it should be made easier to get to the places where the cases will be tried.
The noble and learned Lord referred to the Report of the Commission presided over by Lord Gorell, which reported in 1912. That Commission said that the gravity of divorce and other matrimonial cases, affecting as they do the family life, the status of the parties, the interests of their children and the interests of the State in the moral and social well being of its citizens, makes it desirable to provide, if possible, that even for the poorest persons these cases should be determined by the superior courts of the country. That is to say, of course, the High Court, assisted by the attendance of the Bar. I entirely agree—I am sure we all do—about the gravity of divorce and other matrimonial cases, about the effect on family life, and so on. But it does not follow from that, in my view, that these matters should be dealt with and considered only in the High Court of Justice. After all, do we not know that many matrimonial matters nowadays come within the jurisdiction of the magistrates' courts? I know, too, that the Royal Commission on Divorce in 1956 endorsed this recommendation of the Gorell Commission and said that they considered it of the highest importance that the principle should be maintained that the jurisdiction in divorce is essentially one for the High Court, and it was their view that as many High Court Judges as were required should be appointed to try these cases.
But we surely should not shut our eyes to what has been happening in the last twenty years. As the noble and learned Lord the Lord Chancellor said, during that time the vast majority of undefended divorce cases have in fact been tried by county court judges. They have sat in the High Court as Commissioners; they have sat in the assize court and in county courts in the country, often in the same county court as that in which they have been functioning perhaps the 181 day before as a county court judge. As the noble and learned Lord has said, the only difference has been that they have worn different robes and been addressed on one occasion as "My Lord" and on the other occasion,as "Your Honour".
I believe that the way in which the county court judges have tried these cases when sitting as Commissioners is in no respect inferior to the way in which they have been tried by High Court Judges. Indeed, I do not know how the administration of justice could have been carried on without the assistance of the county court judges, and I think a great debt is due to them, which we should acknowledge, for undertaking this additional burden of work. I have seen it suggested that because in fact they have dismissed a lower percentage of undefended divorce cases than have High Court Judges it is to be inferred that they do not try them as well. I think this is a fallacious conclusion, for it may well he that a lower percentage of cases that ought to have been dismissed came before the county court judges. In these cases there never is what we lawyers call a lis—the judge never hears the other side of the story because the cases are undefended. And the fact that there is, or would be, no lis was, if I recall aright, one of the objections advanced against the proposals which had the blessing of the most reverend Primate the Archbishop of Canterbury in the pamphlet Putting Asunder. Yet divorce judges have been and are deciding thousands of cases where there is no list of any kind.
In the light of experience, I see no reason at all to conclude that in future it will be easier to get a divorce in an undefended case before a county court judge than it has been to get one before a county court judge sitting as a Commissioner. I know the view has been expressed that trial in the county court of these cases will diminish the view people take as to the sanctity of marriage. A Committee presided over by my noble and learned friend Lord Denning, who I see is going to speak later, reported after the war in these words:If there is a careful and dignified proceeding such as obtains in the High Court for the undoing of a marriage, then, quite unconsciously, the people will have a much more respectful view of the marriage tie and of the marriage status than they would if 182 divorce were effected informally in an inferior court.With the greatest respect to my noble and learned friend, I must say that I regard that statement as almost a classic non sequitur. I do not believe that the place in which the parties to a marriage which has broken up go to get the marriage terminated has, or can have, the least effect on the sanctity of the marriage vow. I do not believe it is any inducement to married people to observe their marriage vows to know that a divorce can be obtained only in the High Court. The passage which I have quoted from the Report assumes that a hearing in the county court will be informal and less careful and dignified than a hearing in the High Court. I do not think that any such assumption is warranted. After all, it is the county court judges now who try the majority of these cases, and I see no reason to suppose that when they try them in the county courts they will try them less carefully, with less dignity and less formally than they do now.
I noted that the Lord Chancellor referred to these cases being sandwiched in the county court between a running-down case and a hire-purchase case, or perhaps between a judgment summons and the hearing of a rent restriction case. I hope that when he comes to reply the Lord Chancellor will make it clear that in the rules that he is acquiring the power to make he will secure that these cases are heard together, and at a different time from any other type of case, because I think it important that in the exercise of this jurisdiction the county court judge should put aside either a whole day or half a day separately for dealing with cases of this sort. They ought not to be intermingled with his ordinary list. If that is so—and I suspect that the Lord Chancellor will give that assurance—then a great deal of the fears held quite sincerely by a number of people will be diminished.
Another reason why I have been in favour of these proposals is on the grounds of finance. The Lord Chancellor referred to that, and during my time on the Woolsack I was worried about the increasing expenditure on legal aid. I think I am one of the only people now remaining in Parliament who sat on the Rushcliffe Committee which devised the system of legal aid which is now being 183 operated, and, like the noble and learned Lord, I have always been keen on it. But I was anxious about the rise that was taking place—I think the Lord Chancellor said it had multiplied five times in seven years. Divorce accounts for 70 per cent. of that, and I believe that something like 80 per cent. of that 70 per cent. goes on undefended divorce. It is also true to say that the average cost is something like £120—it may be more. Over recent years there has been a great increase in the average cost of an undefended divorce case. It has always puzzled me why that should be so, but it is the fact.
One reason—it is only one reason—why I am in favour of making this change is that I think it will lessen the financial cost of such proceedings. It will lessen the burden which will fall on the Legal Aid Fund by something like £400,000 a year, which is not a small sum, and, what is more—I do not think the noble and learned Lord referred to this, although I am sure he will not disagree—it will lessen the burden of costs on the unassisted litigant. I do not think that that is by any means unimportant. Of course, the contents of this Bill are a blow to those members of the Bar whose practice included the conduct of such cases. It is true that they may not be employed so frequently, but certainly I feel that they will continue to be employed in a considerable number of cases. Though, naturally, I regret that any member of the Bar should be adversely affected, I think it is clearly in the public interest that these changes should be made.
My only regret is that the introduction of this Bill should have been so long delayed. I do not know the reason for that. The noble and learned Lord the Lord Chancellor in his book Law Reform—Now advocated this change and said it was one which should be made. He has held his high office since 1964 and it is only now, three years later, that the Bill comes before us. I should be grateful if he could tell us why there has been this delay. At first sight, it hardly seems to be an example of dynamic, purposive government. I have long been in favour of these changes. Indeed, as the noble Lord indicated, had things gone differently in 1964, I myself had hoped to introduce such a Bill—and, may I say, sooner.
184 I would have gone a little farther than this Bill goes. At present, county court judges sitting as Commissioners are trying the short defended cases, and are trying them satisfactorily. I would have made it possible for them to continue to try that category of case in the county courts. However, I do not quarrel with the Lord Chancellor on this matter and do not intend to move an Amendment about it, for I think there is something to be said for seeing how this plan goes before one adds a further burden to that which is already carried by those who sit in the county courts.
I end by saying that I hope there will be no Division on this Bill, for if there is I shall be embarrassed by having to go into the same Lobby as the noble and learned Lord the Lord Chancellor, and that, I think, will be a unique experience. If I have to do so, I cannot promise that it will ever be repeated. I hope that none of your Lordships will put me in that embarrassing position by dividing on this Bill.
§ 4.23 p.m.
THE LORD BISHOP OF EXETER
My Lords, whether one regards this as an important Bill or as a relatively small one, a mere tidying, administrative Bill, as the noble and learned Lord the Lord Chancellor has suggested, depends on whether or not one thinks that one of its inevitable consequences must be a cheapening of the value which society places on the institution of marriage—a further step towards the complete acceptability of the notion of divorce; a further step towards its becoming a quite unimportant, almost normal, event, though an unhappy one, in anybody's life. But all this is a matter of opinion. There can be no evidence as to what would be the result of this Bill, and each of us is entitled to his opinion.
It is perfectly reasonable to hold that the content of the marriage law and its administration are almost wholly irrelevant to the question of whether marriages, and how many marriages, will break down. It is quite reasonable to hold that if a marriage is going to break down, it will break down whatever the law is and however, it is administrated. On the other hand, it is also reasonable to hold that if divorce is made easy, if it becomes more frequent, then it enters more easily and more frequently into the minds of 185 those whose marriages are under strain, and they are more ready to see in divorce the only solution of their troubles. Either point of view of reasonable.
It would appear that the Gorell Commission in 1912, and the Morton Commission in 1956, took the view that it was a mattter of immense importance whether divorce cases were heard in the High Court or in the county court. Their opinion, it seems to me, holds the field at the moment, and it is for the proponents of this Bill to throw them out of the field. I do not think that so far in the course of this debate they have succeeded in doing so. In a way, it is true that the Bill will not bring into existence any very striking changes in administration. I imagine that the ordinary layman getting a divorce probably would not know that the law had been changed. On the other hand, of course, great publicity would be given to the fact that divorces no longer have to be heard in the High Court, and I should have thought that in the long run that would be likely to have an adverse effect on society.
The Bill has the further defect that it stresses, underlines, reinforces, the distinction drawn between defended and undefended cases, with the corollary that the ordinary man thinks that an undefended case is something which is not quite so important and does not matter quite so much as a defended case. It also, I think, carries with it the suggestion that an undefended case is easier to try, and therefore can safely be left to the county court judge; whereas a defended case may be extremely difficult and must therefore be reserved for the higher expertise of the High Court. I myself should have thought that in fact it was far more difficult to arrive at the truth in an undefended case than in a defended case. It must be extremely difficult for the judge hearing an undefended case to spot the phoney one. Though there are comparatively few undefended cases which are in fact dismissed by the county court judge, sitting as a High Court Judge under the present province, it is the quasi-automatic result of the undefended divorce cases as they are now heard which is to me, one of the gravest criticisms of the present system. And I fear that this Bill will make matters worse.
186 My main objection to the Bill has been completely removed by the noble and learned Lord the Lord Chancellor. My objection was that some of us had been very disappointed that since this Administration took office we have heard nothing, or almost nothing, about the creation of a comprehensive family service, with comprehensive family courts on a regional basis—something along the lines proposed by the Committee which was presided over by the noble Earl, Lord Longford. It has been a great disappointment to many of us that so far we have heard nothing of this, and I had thought that we were being offered this Bill as a wretched substitute for the more radical reforms which are gravely needed. I was therefore greatly reassured by the speech of the noble and learned Lord in which he has virtually—I was going to say that he had virtually promised us, but he has given us some reason to hope, that a radical Bill may be brought in during the next Session. This is indeed good news. But I cannot help wondering, if that is indeed the case and if this radical reform is to be introduced next year, whether it is really necessary to have this very minor reform introduced this year, with a certain amount of controversy and a certain amount of depreciation in the general opinion held in the country about marriage.
As your Lordships will have observed, I am not desperately opposed to this Bill. I do not think that it will make an enormous amount of difference, but I cannot see that it is necessary. I cannot see that it will do any real good, except by way of saving money. But if those who consider that one of the consequences of this Bill will be a depreciation in the value set on marriage, and consequently a greater number of divorces, are right, this Bill will prove a very expensive way indeed of saving money, because there is a proportion between the number of divorces, the number of broken homes, the number of delinquent children, and the number of children in need of care and protection. If this one view turns out to be right, then the saving in expenditure brought about by this Bill will prove in the end to be very expensive. I think that, on the whole, the Bill is unnecessary; it will probably do little harm and will do almost no good, but I do not propose to ask the House to divide on it.
§ 4.33 p.m.
§ LORD SILKIN
My Lords, the concluding words of the right reverend Prelate have become fairly familiar to me in recent debates. It is a sort of formula which is adopted by the Opposition on all occasions when they cannot really oppose the principle of a Bill. They do not want to support it, and so they criticise it in a variety of ways. The right reverend Prelate thinks that the Bill will in some way affect the sanctity of marriage. Does he not realise that by the time these divorce cases come before the courts the marriages have already broken down beyond repair? Sometimes, as in the case of desertion, the parties have lived apart for a great many years. Sometimes, as in the case where a petition is on the ground of cruelty, very great hardship and suffering has been inflicted upon the innocent party and, obviously, the marriage has broken down already. How, therefore, the manner in which the marriage is finally determined can effect the concept of the sanctity of marriage is beyond my conception.
I think that in these days it is appropriate that a Bill of this kind should be introduced in this House. Over the years this House has been gradually—and I am not suggesting since the advent of the present Government—gaining a reputation for progressive legislation in this kind of sphere. The noble and learned Viscount made rather mocking reference to a certain Bill, but in fact it has been a very popular Bill, and one which has been generally accepted. I might also make reference to another Bill with which I was primarily concerned. That, again, has had very general acceptance. I think it is to the credit of this House that Bills of this kind should emanate from here and work their way to another place.
I would also refer the right reverend Prelate to the fact that in the last 10 years the number of divorces, under the present system of divorce procedure, has increased by 50 per cent., and that explains, at least partly, the increase in costs. Last year I think there were something like 40,000 petitions for divorce. The remedy, if one wants a remedy to ensure the sanctity of marriage, must come much earlier than the day of the hearing of a divorce petition. Action must be taken years before the 188 divorce petition is heard to induce a greater conception of sanctity of marriage, and I hope that that will be done. But a great many factors must be taken into account to secure this.
The noble and learned Lord the Lord Chancellor referred to legal aid in connection with divorce, and it is a fact that over 80 per cent. of divorce cases are aided to a certain extent out of public funds. I think there is a good deal of exaggeration as to the extent to which they are aided. Nearly every petitioner is asked to make a contribution towards the cost of the petition, and a great many pay the whole cost, although they may pay it over a period of time. The normal cost was somewhat reduced by the fact that the members of my profession—and they are the only ones—accept only 80 per cent. of their legitimate fees and make a sacrifice of 20 per cent. To that extent, a legally-aided petitioner is able to get a divorce at a reduced charge.
I suppose that this is one of the very few Bills which have been introduced over a long period where it is actually stated on the face of the Bill that it will reduce public expenditure. The noble and learned Lord the Lord Chancellor has referred to a sum of £400,000 a year. I would prophesy that the saving will be substantially more. I should not like to challenge the statement as to the number of solicitors who will appear in person on these petitions at the expense of counsel, nor do I think that that is where the greatest saving will come. I think savings will be found in other directions, such as those to which the noble and learned Lord the Lord Chancellor referred. Moreover, there will be a saving to the petitioners themeslves. At present they must get to the court wherever it may be. Sometimes they have to stay overnight at the place of hearing, and it is very often a considerable burden on them to have to do this. To be able to get their petitions heard at greater convenience, and within reasonable distance of their homes, must mean a very great saving.
I do not think I can add very much to what the noble and learned Viscount, Lord Dilhorne, said about the Bill. He found himself in the uncomfortable position of agreeing with the noble and learned Lord the Lord Chancellor. I find myself equally uncomfortable in agreeing 189 with him. We have had so many conflicts in the past, particularly on the Bill to which I have just referred, the Abortion Bill, that I wonder whether, after all, I am right when I agree with what the noble and learned Viscount has said. I wish he had gone a little further, and I wish the noble and learned Lord the Lord Chancellor had gone further. The principle of trying these cases in the county court having been accepted, I can see no reason why it should not apply to defended cases of a simple type. The total number of defended cases is only about 1 in 15 of the total number of petitions which are filed, 14 out of 15 being undefended. Only 1 in 15 is a defended case; and even among the defended cases a good many of the defences are merely formal and the cases are not seriously contested when they come to court.
As the Lord Chancellor will know, in the case of a defended divorce petition there are pleadings. The petitioner sets out his case in full, the respondent sets out her case and copies of documents are exchanged; and by the time the pleadings are closed each side knows exactly the kind of case which the other is going to put up. I see no reason why, at that stage, the pleadings should not come before the registrar of a court for him to decide whether the case is of such magnitude as to make it necessary to go to the High Court, or whether it is a simple defended case which can be disposed of in an hour or two, or even three, and dealt with in the county court.
While I would not press that this should come about at once, I am very sorry that the form in which the Bill has been drafted makes it impossible to carry this out, even at a later stage, if it should be found desirable to do so. I hope that in Committee the noble and learned Lord the Lord Chancellor will not resist an Amendment which would make it possible, at any rate in cases such as those I have described, for the simpler forms of defended divorce cases, also, to be heard in the county courts.
There is one matter which I should like to ask the noble and learned Lord the Lord Chancellor to explain when he comes to reply. I am not very clear as to the meaning of Clause 1(1), in which there has to be a double designation. One has to designate a court as a divorce county court and one has also to desig- 190 nate it as a court of trial. Why should there be this double designation, and what is the point of it? It may be merely a matter of drafting, but I found it somewhat puzzling.
Another matter is one about which the Law Society has been very much concerned with successive Lord Chancellors. I dare say the noble and learned Viscount, Lord Dilhorne, has heard about it, and possibly his predecessors did also; and it will be most applicable in cases of divorce. The county courts at which these cases will be tried are often at a distance from the office of the solicitor who is conducting the case, and it may be convenient for him to appoint an agent to deal with the case—an agent who is actually practising in the town in which the county court is situated. I have not come across an instance myself, but apparently this is not possible. The judges do not recognise an agent appearing, either as an advocate or even to instruct counsel. On the face of it, that seems an unreasonable restriction. I have not given the noble and learned Lord the Lord Chancellor notice of this point, and therefore I do not expect him to give me a reply to-day unless he knows that situation and can do so, but I should be grateful if he would look into it. I will gladly supply him with more information if he should so desire.
Having said that, I should like to welcome this Bill cordially. I think it is a very important and far-reaching Bill. I would quarrel with only one word which the noble and learned Lord the Lord Chancellor used. He called it a "modest" Bill. I think it is not a modest Bill; it is a far-reaching Bill, and I wish it every possible speedy success.
§ 4.46 p.m.
§ LORD PEARCE
My Lords, may I venture, with diffidence, to put forward the view of one who was for a few years a divorce Judge, who has tried many undefended cases, who has tried many defended cases and who was a member of the Royal Commission on Divorce? That Commission inquired very deeply into the matter which is now before your Lordships' House. Over three years it heard vast amounts of written and oral evidence. It worked very hard; and this was one of the matters it had to consider. It was not a Commission of lawyers. 191 They were people—men and women—from England and Scotland, chosen by Mr. Chuter Ede as a very wise cross-section, though, in addition, they had from England and Scotland a judge, a barrister and a solicitor. After considering the evidence, they expressed the view which your Lordships have heard read: that it was a principle of the highest importance that divorce should be confined to the High Court. They said that in this connection, and in another connection, in dealing with relief in magistrates' courts, they said it again.
Of course, to those who think that divorce should be available to all who want it—those who hold what some people cynically refer to as the "postage-stamp view", that if you want a divorce you should have it purveyed to you when you want it—the language in which the Commission talk is wholly meaningless. And to those who think that divorce should be a matter of the individual wish of the parties, again this Bill must seem a matter of common sense and obviously a step in the right direction. But the Royal Commission did not take that view, and one will rarely find anybody who has tried divorce cases who does take that view. There was no reflection on the county courts in the recommendation of the Royal Commission. The county court judges are excellent, and have done splendid work. The way in which they do the work is not the point of the criticism at all.
The point of the view taken by the Royal Commission was this. Every country—do not take this country alone, but any country you like—has it stop court, whether it be called the Supreme Court, the High Court or any of the various other names that have been given them. In the last century every country has had its secondary courts—courts which can deal with matters which are not of sufficient weight and importance for the top or the High Courts—and those courts are given facilities for dealing with smaller matters, and for dealing with them expeditiously. If a country thinks that a matter is of primary importance, of real national primary importance, it is inconceivable that this or any other country will give it to its secondary court. It is entirely irrelevant to say whether the secondary court can handle it well. If 192 they are as good as our county court judges are—and they are very good—of course they can handle it well. But they are not the High Court.
If you think, as many people do think, that divorce is a matter of national importance and that it is important to stress its importance in the eyes of everybody; if you think that from broken homes comes so many ills of which we constantly hear—delinquency, crime, vice, unhappiness—then surely the logic is that divorce is a matter which ought to be dealt with in the High Court. That is the reasoning which lies behind the Gorell Commission, the Denning Committee, and the Royal Commission under Lord Morton of Henryton, and it is quite useless to give sophisticated reasons why a second court can try a matter well and adequately and why it is more convenient to go there. I mean "sophisticated" reasons, not in the sense that the reasons are not perfectly genuine, but in the sense that to the eye of the man-in-the-street they simply carry no meaning; and that was the view of the Royal Commissions of the man-in-the-street. It will make divorce seem a bigger thing if it is tried in the High Court. It will make marriage seem a more important matter.
In dealing with divorce you are beset by this simple overall problem. A humane society must give relief in various circumstances to people who find themselves intolerably saddled with a marriage which has broken down. As soon as you give relief to someone who is genuinely suffering, twenty other people come forward who have nothing but minor aches and pains. A judge may know quite well that, with these people, if only they would try a little, and be a little more tolerant, they could easily overcome their difficulties. The problem is to distinguish between the two types of case. If you give some prestige to a thing and show that you think it of national importance, you are doing something to buttress up those people who will try genuinely to cure their little aches and pains: you are doing something to make divorce less likely. That is a view which I suggest is tenable; and it is the view of those Royal Commissions. As has already been said, the saving, which may be as great as is suggested (it has been prophesied that it will be more, and if prophecy be in order, I would prophesy that it will 193 be less), is not really the deciding factor. Because when we think of the millions of pounds spent on combating delinquency, on dealing with crime, on educating people and on welfare in general, that is a very small matter compared to those.
My Lords, the final point with which you are faced when you decide about this Bill is: Do you think that divorce is a very, very important matter? Secondly, do you think it is of any help in propping up marriage, in discouraging divorce, that it should be dealt with by the highest court in the land? If your answer is, No, then the argument does not appeal to you; but if you think it is true, or if you think that it may be true, then, my Lords, it is a grave step to relegate divorce to the county courts.
§ 4.54 p.m.
§ BARONESS SUMMERSKILL
My Lords, I am tempted to intervene in this debate because, like the noble and learned Lord who has just spoken, I feel the great importance of this Bill as a measure which is designed to deal with some of the social problems in our society. Indeed, the Bill has tremendous social implications. I listened to the moving speech of the noble and learned Lord, and I feel as deeply as he does about these people. But I must say to him that I cannot see how the picture of a county court or the High Court will deter any individual from committing a matrimonial offence. That is the essence of the problem—will it deter a man from hitting his wife? Will it deter a man or a woman from committing adultery? I should like to think that what the noble and learned has said is correct, and that there was some way of deterring husbands and wives from misbehaving. I cannot, however, and I also have had tremendous experience of how people behave. I cannot believe for one moment that the type of court will act as a deterrent.
When I first read the Bill I realised, of course, that any adverse criticism would come either from the Church or the Bar. I recall that when we debated divorce a year or two ago on the Church Report, Putting Asunder, the Gorell Commission was quoted at length, and that strong objection was expressed to any suggestion of transferring the divorce jurisdiction to the county courts. It must 194 be remembered that the Gorell Commission reported in 1912, when the number of divorce cases was comparatively small, and mounting divorce lists did not present a serious social problem. Also, in 1912 a woman did not possess the right to obtain a divorce from her husband on the ground of his adultery alone. That, again, must have reduced the numbers considerably. In my opinion, it is therefore quite unrealistic to relate the recommendations of the Gorell Commission to the matrimonial problems of to-day.
My Lords, I think that there is little new in this Bill. I agree with my noble and learned friend who sits on the Woolsack that this is a very modest measure, and I am astonished that the right reverend Prelate, the Bishop of Exeter, has revealed such ignorance of what is happening in the country to-day. For nearly twenty years county court judges have been trying the vast majority of undefended cases. This is not a new proposition. In 1966, for example, there were 11,800 undefended divorce cases heard in London, and 26,689 in the Provinces. Of these, nearly 90 per cent. were heard by county court judges sitting as Special Commissioners. In London the county court judges take it in turns to sit approximately once a fortnight at the Royal Courts of Justice for the hearing of undefended cases; and in the Provinces they sit at 149 divorce towns, of which 29 are Assize towns. This, my Lords, has been going on for twenty years.
I understand—and I have made a number of inquirie—that there have been no complaints about the way in which the work has been done; and despite the considerable volume of business it has been dealt with in a manner not lacking dignity. Nevertheless, as my noble and learned friend who sits on the Woolsack has said, I cannot believe that when a county court judge sits in a black gown instead of his purple robe, and is addressed as "my Lord", instead of "your Honour", he undergoes a change of personality. He is the same professional man, with the same background, the same training, and the same courtesy that we know judges possess.
When it comes to the Bar and their reactions to this, I feel it is a little hard on the solicitors for it to be noised abroad that they may not be competent to conduct undefended divorce cases; for I 195 am informed that in many cases a barrister is briefed only to appear at the hearing of the case, and that the rest of the proceedings are conducted entirely by a solicitor. I presume that in the legal profession, as in other professions, there are individuals lacking in integrity. We read in the papers that there are some of those in my profession. But they are not confined to one section of a profession. Of course, many solicitors who do not undertake advocacy will continue to brief counsel, and therefore this point is not likely to arise. Barristers with whom I have discussed this think that it will be still common for solicitors to ask barristers to conduct these cases.
Although the Bar may be a little embarrassed to mention financial considerations, and may regard the provisions of this Bill as an unwarranted encroachment on their preserves, I hope that young barristers will accept this change in their fortunes philosophically, having regard to the pressing need for this transference of functions. I hope also that they will remember that barristers have benefited considerably from the legal aid scheme, which has afforded them a security never enjoyed by many of their predecessors. When contemplating this change designed to meet a specific social problem, I hope that they will regard it as another great change such as the legislation which gave legal aid to the poor, although this time barristers will be asked to endure happily a diminution of their income.
I said that the Bill has social implications. I believe that the objections of the Church and the Bar pale into insignificance beside the all-important social implications of this measure, of the provision of a means whereby we can deal effectively with a large number of divorce cases which involve thousands of men and women. For the most part these people have endured years of unhappiness and mental torment, and after long consideration and consultation with their families and friends, perhaps with marriage consultants, they have finally decided to end their marriages. I believe that to prolong the waiting period unnecessarily is not only inhuman but can amount to a denial of justice. Consequently, the provisions of this Bill will make an important con- 196 tribution, not only to our jurisdiction, but also to the pressing social demands of the community.
§ 5.3 p.m.
My Lords, I am desirous of opposing this Bill. So far as the county courts are concerned, I have no doubt that the learned county court judges are very able and distinguished people, and I am not going to say anything derogatory about the county courts. But there is no doubt at all that the High Court and the High Court Judges enjoy a unique status, dignity and prestige throughout the whole country. We should be very proud of them. Business is business, and we cannot run it on the basis of sentiment, but if we are going to have no sentiment in this country we might just as well give ourselves numbers and not names and be regarded as mere pawns in the game. There should be sentiment about matrimony, which is a very serious matter, and the break up of matrimony is an equally serious matter. Therefore I say, without any hesitation, that the highest court in the land—namely, the High Court—should deal with judgments relating to the break-up of matrimony. There are ancillary matters, such as the maintenance of the spouse and the children, the custody and care of the children and access to them. In my humble submission, the High Court is the most suitable tribunal to deal with these matters, as they deal with them to-day most satisfactorily.
The question of expense is undoubtedly important. I am Scottish, and every time a Bill is introduced I think that we should talk about the expense of it. I am glad that this point has been raised. I wonder whether in practice there is going to be any material saving of expense. I speak under correction, but I understand that county court costs are going to be materially increased in the near future. Then what is the objection to the Government—perhaps I may say the noble and learned Lord the Lord Chancellor—meeting the two branches of the legal profession in London and saying to them that the cost of these undefended cases have to be reduced or else something serious will happen? I am sure that both branches of the profession would support the noble and learned Lord in cutting down expenses. 197 I believe that this question can be tackled and matters so arranged that the expense of the present system need not be any greater than the expense under the proposed system.
It is not for a person in .a humble position such as mine to talk about appointing new Judges, but why not appoint two High Court Judges to deal with undefended divorce cases alone? I do not know what the state of their mentality would be after a year, but that is neither here nor there. A Judge sits from 10.30 to 4.30 and with an hour's adjournment—that is, five hours a day. Mathematically and theoretically speaking, he ought to be able to do 20 undefended cases in five hours. Therefore in a week he could do 100, and in the course of a working year two Judges could do about 8,000 cases. That is a mathematical way of looking at the problem and also an economic way. It means that we might save just as much as by spreading divorce cases all over the country in county courts, having new buildings, new offices, new administration and new rules of court—though why they cannot learn the present ones I do not know.
I think it is a mistake to say that the present system in the High Court cannot be made less expensive. So far as travel is concerned, the parties and witnesses will not spend any more money in coming to London or any other big town than in going to the county courts in the country. What is more, the work of the county court judges is increasing and is likely to go on increasing. Their jurisdiction has been enlarged and is likely to be enlarged again. Every form of legislation—landlord and tenant and so forth—is growing every day and likely to find its way to the county courts. The Bill has been criticised by other noble Lords who are far more qualified to speak on this subject than I am. I may be alone, but I have in my pocket the names of 9,000 people who would oppose it but who unfortunately have no vote. I only say, with the greatest respect to the noble and learned Lord the Lord Chancellor, that I am opposed to this Bill.
§ 5.10 p.m.
THE EARL OF MANSFIELD
My Lords, despite all the clarity with which the noble and learned Lord on the Woolsack introduced this measure, I remain 198 totally unconvinced that it is either timeous or in itself desirable. Nor have we had any real explanation why the recommendations of the last Royal Commission should be thus ignored. As the noble and learned Lord has hinted, there may be a further measure connected with matrimony in the comparatively near future. Surely it would have been better not to treat the Bill before us to-day as a matter of urgency but to keep it and try to work out some form of consolidation which would put the admittedly unsatisfactory matrimonial laws of this country somewhat more into order.
I do not think very much has been said this afternoon about the fact that Commissioners sitting as High Court Judges were supposed to be, when they were first introduced, a mere temporary measure to get rid of the backlog of divorces caused by the war. It was never intended to be permanent. It has been suggested that the county court judges have done the job equally well as the High Court Judges; but, while no one would in any way seek to denigrate the quality of the county court judges, I am not sure that that claim can be altogether substantiated. I know there are a number of barristers who hold the view that county court judges are not all as well qualified to try even these undefended divorces as are the High Court Judges.
I have been supplied with certain figures for the year 1964, and I am told that in other years the proportion is usually not dissimilar. In that year, the High Court Judges heard 649 cases of divorce, of which they rejected 6; that is to say, one in a little over 100. The county court judges heard 8,759 cases, of which they rejected 12; that is to say, one in 730. I think that this can be taken as showing fairly conclusively that some, at least, of the county court judges do not inquire quite as carefully into the bona fides of the petitioners as do the High Court Judges. My several friends who take part in divorce work on occasion assure me that if a barrister is to do his work properly in an undefended divorce he has to do a great deal of homework upon it, and there are many of the Judges who are extremely, and quite rightly, insistent upon being assured that the facts are as they are set out.
Unfortunately it is a commonplace that there is more perjury in divorce cases than in any other kind of case; and 199 everyone knows that quite a high proportion of these cases are collusive. That is, unfortunately, something which it is difficult to avoid. But I submit that the number of collusive divorces that will succeed, and the number which will be brought to the courts, is likely to be increased rather than decreased by this proposal, and that it might lead to a lowering of the standard of investigation made into them.
As has already been said by other speakers, to transfer this important question from a High Court to an inferior court seems to be a remarkable way of dealing with the problem. Are we then to anticipate legislation whereby those offences hitherto known as felonies are to be transferred to the jurisdiction of quarter sessions in England and of the sheriff substitute in Scotland? I can hardly imagine it. But that is really what is being done in the present case. I submit that what was necessary at the end of a war, though even then undesirable, is not something which we should make a permanent part of our legislation.
Finally, the noble and learned Lord the Lord Chancellor spoke with complacent approval of the way in which the Government might save some £400,000 by the introduction of this measure. That struck me as being rather an odd assurance on the part of a member of a Government which is raising taxation by something like £400 million and more. Is it really worth saving a problematical £400,000 for the sake of lowering the status of matrimony and of transferring from the High Court to a lower court these important questions which would be much better settled by a High Court Judge? Surely, as I said before, it would have been better to keep this measure until it could have been consolidated with other measures, rather than to bring these measures forward piecemeal.
§ 5.15 p.m.
§ LORD DENNING
My Lords, I am sorry that I was unable, owing to my judicial duties, to be here at the opening of this debate, but I was very glad that I was able to be in time to hear my noble and learned friend Lord Pearce addressing your Lordships (I believe for the first time) with his accustomed eloquence. I should like to congratulate him on his moving speech.
200 It is now over twenty years since I had the privilege of being the Chairman of the Committee which considered the great increase in divorces after the war. Divorce cases were then running at over 60,000 a year. We had not the Judges or the courts to deal with them. Then this Committee sat, as a matter of urgency, to make recommendations. One of the recommendations we made was that to meet this situation the county court judges should sit as High Court Judges—and let me emphasise that—to do the work at that time. We had all the usual arguments. But having considered not only the Gorell Report of 1912, but a vast amount of new evidence, we recommended that county court judges should sit as High Court Judges, and do the work as High Court Judges, for this reason: that the dignity, calm and lack of haste, and the careful inquiry, is far more available in a High Court procedure than in the necessarily speedy procedure of the county courts. And we added:They should have power to try both undefended and defended cases. If they were to be restricted to undefended cases, it would mean that they would be regarded as courts of inferior jurisdiction, which in our opinion is undesirable.This Bill, my Lords, perpetuates that undesirable distinction. There will be the county courts of this country for the undefended divorce cases; the High Court will be the court for the defended cases. What a want of appreciation of real values! The undefended cases are equally important, and sometimes more important than the defended cases. On the issues depend the future of the children, matrimonial maintenance and property. It is an entire reversal of those valuations that we shall have.
Let me add this. I sit in the Court of Appeal where we have appeals from the county court judges who sit as Commissioners. At the present time, we have an opportunity of considering those proceedings. There is the shorthand writer, who has taken it down, and we can see word for word what has been said. We can, and do, correct decisions where divorces have been wrongfully refused; and, as sometimes happens, where children have been wrongfully bastardised and proved illegitimate. This new system which is proposed means that in the county courts there will in many instances be no counsel to present the case, and there will be no shorthand writer to take 201 a note which we in the Court of Appeal can consider. The inevitable pressure will be such that the county court judge will be unable to take a note, and, indeed, will feel almost inclined automatically to grant a divorce in every case because there is no machinery for appeal.
No one, I hope, would suggest that at the moment the work is being badly done or, with respect to the noble Baroness, that there has been any delay. The sole objective, as I can see it, of this Bill is to save expense, because the Legal Aid Fund is finding it hard to meet the cost of all the divorces. My Lords, if you have a shorthand writer there, that is going to run up the cost. For myself, I very much doubt whether this anticipated saving will take place. Solicitors are so busy that they will not themselves have time to go into the county court, unless the fees are raised much more, and they will go on instructing counsel just as before. This saving is dubious in the extreme, and that is the only benefit which, so far as I can see, this proposal will effect.
When, twenty years ago, we made that recommendation, I said to myself, "In twenty years' time I hope that we shall have family courts". Twenty years have come and gone. We do not have them yet. But the procedure is plain. We should not have, for instance, this distinction between defended and undefended cases. I would have a judge, with a lay justice or two, sitting; and in every case, if need be, having not only the one party present but the other party too. There are the two parties present when they get married: both ought to come when they are divorced. As it is, the innocent party has to go to all the cost, and all the embarrassment, of turning up in court for a few minutes, while the guilty party just rubs his or her hands and says nothing. Both ought to be heard, not only on this question of divorce; far more at the time on the question of the future of the children, and on the question of maintenance and the matrimonial home and the hundred-and-one things that are involved. It ought not to be just a formal running through, with the really important matters dealt with later.
That is why I would say that we should consider the provisions which have been outlined by the most reverend Primate's 202 Committee in Putting Asunder—and this, I may add, has been indicated by Mr. Justice Scarman, Chairman of the Law Reform Commission, on these very lines. We should have regional courts presided over by a High Court judge or a county court judge, with lay justices or assessors, and with the help of a probation or welfare officer. We should have both parties coming before them on the day, and the matter should be dealt with more on a social than on a legal aspect. In case points of law arise, there should be a High Court which is supreme above them for appeals. That is what should be done. This Bill, I am afraid, is just a measure for saving expense. It will be worse than that if it perpetuates a bad system and does not lead the way to a new and better system.
§ 5.24 p.m.
§ THE LORD CHANCELLOR
My Lords, this has been an interesting discussion, and I find very little to reply to because the arguments of those who differ from the Bill are based on an assumption which they are quite entitled to hold. The noble Earl, Lord Mansfield, will no doubt agree that the figures which he gave to the House were taken from a document which has been circulated to a number of noble Lords by the Secretary of the Divorce Bar Association; and, of course, they have an axe to grind. Apart from those figures, I was interested in the fact that nobody has opposed the Bill who is not either a cleric or a lawyer.
The noble and learned Lord, Lord Denning, through no fault of his, had not heard me say how anxious I was personally to see our divorce law rationalised and the establishment of real family courts. I said that this Bill would do nothing to prejudice that, but it was quite obvious we should have no such Bill this year. I hoped, however, that it might be possible next year or the year after. I did not suggest it would be a Government Bill; it might very well be a Private Member's Bill. But divorce law reform is in the air; everybody is thinking about it. Our thoughts, I think, have been much clarified by the Report from the most reverend Primate's Committee, and also the Report from the Law Commissioners. It is in social fields of this kind that this House, in particular, has already started 203 measures for reform, and no one hopes more than I do that this will proceed.
The only argument to the contrary is the general view that this Bill will lower the status of matrimony, if undefended divorce cases, which are in truth tried now in the country court, were admitted to be tried in the county court. Some misconceptions have arisen. The noble Lord, Lord Meston, said that the county court judges were going to be very busy. But there will not be more divorce if this Bill is passed; there will be less, because it is intended gradually to get them to stop trying any of the defended cases. The Government take the view that if there is a dispute between citizens which will determine right or status, it is right that it should be tried by a High Court Judge. At the present time in London the county court judges deal only with undefended cases; it is the High Court Judges who deal with the defended cases. It is at the moment hypocrisy to pretend that undefended cases are being dealt with in the High Court. They are not being dealt with in the High Court; they are being dealt with by the county court judges, and in most cases actually in the county courts. All this Bill does is to remove a piece of hypocrisy and substitute reality.
I yield to no Member of your Lordships' House in my view that the family is the unit on which the whole of our civilisation depends, and that it is important to uphold the status of matrimony. But what I really cannot believe is that people will either commit a matrimonial offence who otherwise would not, or have a divorce who otherwise would not, because an undefended divorce case is heard in a court which their means can afford. But I quite recognise the sincerity of the views of those who think otherwise, particularly of the noble and learned Lord, Lord Denning, and the noble and learned Lord, Lord Pearce. If to-day we were in a situation in which all divorce cases were heard in the High Court by High Court Judges, then I should have thought there would be much more force in the argument, "If we suddenly make a complete change, may this not lead to some degree of lessening of respect or regard in some way or other on the part of married people for the sanctity of marriage?" But, from that point of view, this 204 Bill does not really change anything. It only recognises what to-day in fact happens.
At the end of the day, while I feel as strongly as anybody about the sanctity of marriage, I cannot believe as a matter of reality that there are any people in the country who are going to commit a matrimonial offence because undefended divorce cases are heard in a court which their means can afford, or, having committed a matrimonial offence—or if the partner has committed a matrimonial offence—are going to have a divorce, when they would not if cases were heard only in the High Court. That has been the primary question at issue.
On matters of detail, may I assure the noble and learned Lord, Lord Denning, that there will be, shorthand-writers present. There are shorthand-writers present now, and there will go on being shorthand-writers present, at least until, as I hope in due time, we have mechanical recording in all courts. I can assure the noble and learned Viscount, Lord Dilhorne, that, as now, no cases other than divorce will be taken on any half-day, or, I think, day on which divorce cases are being taken. The question of agency, raised by the noble Lord, Lord Silkin, I will consider. I have already discussed it with the Law Society and I see difficulty about altering the rules to apply to divorce cases only. In conclusion, I ought to say that I have, of course, consulted the President of the Probate, Divorce and Admiralty Division in relation to the Bill, and he raises no objection to it.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.