Lords Sitting of 24 July 1969

Preamble
The House met at half past two of the clock: The Lord Chancellor on the Woolsack.
Prayers — Read by the Lord Bishop of Exeter

T.V. AND RADIO LICENCE EVASION
LORD MOYNE: 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 the estimated annual loss to the B.B.C. from unlicensed viewers and unlicensed listeners and whether they will not introduce legislation to make dealers in television or radio sets responsible for seeing that their customers have licences.]
LORD BOWLES: My Lords, my right honourable friend the Postmaster General estimates the loss of revenue from television licence evasion at £7½ million annually. He has no reliable estimates of the number of sound licence evaders. Her Majesty's Government consider that the arrangements which Parliament has provided in the Wireless Telegraphy Act 1967, under which dealers send the Post Office the names and addresses of customers to whom they sell or rent television sets, are preferable to the noble Lord's suggestion that dealers should themselves enforce the licensing requirements.
LORD MOYNE: My Lords, in thanking the noble Lord for his reply, I should like to ask four brief and, I hope, constructive supplementaries: one, whether the powers which already exist ought not at this time of difficulty for the B.B.C. to be used to call for returns of existing T.V. hire agreements dating from before 1968; two, whether it would not be fruitful for dealers to have to inform customers that a return is being made about them; three, whether the purchaser's licence number ought not to be put on the dealer's form; four, whether statutory
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power ought not at least to be sought to call for returns of new radio sets sold?
LORD BOWLES: My Lords, I am grateful to the noble Lord for having a talk with me this morning. The answer to his four questions are as follows. First, the Post Office could not deal with this additional information because the grade of staff dealing with this work is badly under strength. Current notifications are coming in at the rate of 2 million a year. Secondly, I understand some dealers already do this, but I will convey the noble Lord's suggestion to my right honourable friend. Thirdly, not all customers would have their licence with them when they bought their sets. Conscientious dealers who enforced such a requirement might lose custom to more accommodating competitors. Fourthly, the system depends on having a register of dealers. Radio sets are sold by such a wide range of shops that it would be quite impossible to compile a satisfactory register of radio dealers.
THE EARL OF BESSBOROUGH: My Lords, could the noble Lord tell us what the cost of collection of licence fees is at present, and also the cost of detection?
LORD BOWLES: No, my Lords, I do not think so, because that does not seem to arise out of this Question.
BARONESS WOOTTON OF ABINGER: My Lords, my noble friend said that the present arrangements were preferable to an arrangement under which the licence has to be produced by the customer at the time of purchase. He did not give any reason for that. Can he tell us why it is preferable, and why this very simple device that the customer produces the licence is not a cheap and economical way of saving £7½ million?
LORD BOWLES: My Lords, my idea was that the salesman who exacted as a condition production of the licence would find that the man would go somewhere else the next day.
BARONESS EMMET OF AMBERLEY: My Lords, might there not be a little co-operation between the B.B.C. and the national Electricity Board, that the licence should be displayed near the electric meter, to be checked once a quarter when the electricity meter reading is

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taken? It seems to me that that would get over all our difficulties.
LORD BOWLES: My Lords, I will certainly pass that suggestion on to my right honourable friend.
LORD HAWKE: My Lords, would it be correct to say that numerous orchestras in this country are likely to be slaughtered because it is impossible to collect these fees in full?
LORD BOWLES: My Lords, the collection of the fees is going up very fast each year.
LORD CONESFORD: My Lords, can the noble Lord explain his answer to the noble Baroness, Lady Wootton? If this were a requirement, how would the purchaser do any good by going elsewhere? He would be subject to exactly the same difficulty as he was in the first place.
LORD BOWLES: My Lords, all dealers are not equally decent. Some would insist upon this in a nice way, others in a nasty way. It is obviously the duty of any salesman to say, "Of course, you will have to take out a licence on this set, and no doubt you will be hearing from the Post Office in the next four or five weeks".
LORD FRASER OF LONSDALE: My Lords, surely the whole point is that if it were mandatory upon the person, compulsory that the purchaser produces the licence, no dealer would be at a disadvantage, because they would all be working under the same rule.
LORD BOWLES: My Lords, I am not sure about that. I have thought about the matter this morning, and I think that people who are in the habit of evading payment for any kind of licence or instalment would be likely to go to a second-class dealer rather than a first-class dealer.
BARONESS WOOTTON OF ABINGER: My Lords, does not my noble friend think that this is an extraordinary confession of failure: that because there may be some dishonest dealers therefore thought that by this device it would be he is unable to bring in a simple device to save £7½ million? I should have quite possible to deal with dishonest dealers.
LORD BOWLES: My Lords, my noble friend, as a magistrate, knows that it is quite impossible also to deal with all tax evaders.
BARONESS WOOTTON OF ABINGER: My Lords, would my noble friend not agree that that does not prevent attempts to enforce the collection of taxes?
LORD HEYCOCK: My Lords, did I understand the noble Lord to say that the loss is £7½ million? Could I be told how he arrives at that figure?
LORD BOWLES: My Lords, we know how many television sets there are in existence and we also know how many licences are taken out. By a simple process of subtraction we can find the figure.

BRITAIN AND PARLIAMENT OF EUROPE
2.43 p.m.
LORD BLYTON: 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 the speech made by the Foreign Secretary supporting a supranational type of Parliament for Europe represents Government policy.]
THE MINISTER OF STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Chalfont): My Lords, I believe my noble friend is referring to certain remarks made by my right honourable friend the Foreign and Commonwealth Secretary during hi; visit to Brussels on July 15. My right honourable friend in fact made no public speech during that visit. What he said at the meeting of M. Monnet's Action Committee—I hope it is in the context of my noble friend's Question—was fully in accordance with the policy of Her Majesty's Government. The Government accept that Britain must join a developing community; we accept the political implications of the Treaty of Rome; but they do not include federation.
LORD BLYTON: My Lords, may I ask whether my noble friend is aware that there is so much double talk in the air that I should like the Government to "come clean" on this issue? The

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facts are that the Leader of the Liberal Party, who was at the Monnet meeting, said that the Foreign Secretary accepted without reservation the political implications of federalism. The Prime Minister does not accept that. Are we not entitled to say that before we hand over the sovereignty of the British Parliament to a European Parliament the people of this country ought to be allowed to determine that issue?
LORD CHALFONT: My Lords, of course my noble friend is right. This is a most important issue. But in the first place let me say that whatever was said about the proceedings of the Monnet Action Committee, that Committee was engaged in confidential discussions, and therefore anything that has been said about it publicly ought to be regarded in that context. I can only repeat that there is a clear policy of Her Majesty's Government in this context. As my noble friend says, that policy has been made clear by the Prime Minister on more than one occasion. What the Foreign Secretary said at the meeting of the Monnet Action Committee was not in conflict with that policy.
LORD GLADWYN: My Lords, would not the noble Lord agree that there would be small point in trying to exercise some democratic control over the whole machinery of the Common Market through a Parliament with no powers composed entirely of national representatives?
LORD CHALFONT: My Lords, I think it would be inappropriate to enter into a debate in your Lordships' House at this stage on supranationality. I can only say that there is of course nothing supranational about the proposal for an elected European Parliament. As I say, I think it would be the wrong time to enter into a discussion about the powers of that Parliament. But let us be clear that there are two concepts being discussed here: one is federalism—and there is nothing in the Treaty of Rome about that—and the other is the direct election of a European Parliament which does not involve either federalism or supranationalism.
LORD BLYTON: My Lords, is my noble friend aware that Dr. Luns, who supports the Government, has stated that
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this is Britain's last chance, and the last chance was because of the opposition by the anti-Common Marketeers? That was followed by the private speech of the Foreign Secretary. I hope I shall not get the reply that he was a delegate of the Labour Party, because he still spoke as Foreign Secretary; and I think that this double talk is monstrous.
LORD CHALFONT: My Lords, I really do assure my noble friend that there is no question of double talk. I, too, was present at this meeting as a Labour Party delegate, and I can assure my noble friend that, whatever has been said elsewhere, the Foreign Secretary said nothing that is not in full accordance with the Government's policy. We have not accepted federation because we are not required to accept it under the Treaty of Rome.
LORD MITCHISON: My Lords, if it is a case of handing over the British Parliament, would not the House of Lords alone be enough?

COMMONWEALTH IMMIGRANTS AND ENTRY CERTIFICATES
2.47 p.m.
LORD FOOT: 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 progress has been made under the extra-statutory arrangements announced in early May to enable the voluntary organisations concerned to assist the dependants of Commonwealth immigrants in Britain to get entry certificates in their countries of origin and before embarkation to the United Kingdom, and how many appeals against the refusal of such entry certificates have been received since those extra-statutory arrangements were instituted.]
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, my right honourable friend the Home Secretary, in a Written Answer on July 15 to a Question in another place, announced the appointment of Sir Derek Hilton to inquire into the provision of advice for Commonwealth dependants overseas. It will be open to the voluntary

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organisations and anyone else interested in the matter to make their views known to Sir Derek. Three appeals have so far been received.
LORD FOOT: My Lords, I am most grateful to the noble Lord for that Answer. In view of the practice of the Government in recent days of trying to draw up hypothetical timetables for the implementation of Reports, may I ask the noble Lord whether he is able to give any estimate as to when Sir Derek Hilton will make his Report, and when thereafter his Report might be implemented? Further, is it not a fact that the Government have from the beginning recognised that it is essential that these voluntary bodies should be brought in to advise immigrants' dependants upon their rights under these extra-statutory arrangements? Have not the Government repeatedly recognised that it is essential for them to provide financial assistance to those voluntary bodies if they are to carry out that task? Also, have not the Government recognised that it is a matter of great urgency that these extra-statutory arrangements should be brought into effect at the earliest possible date?
LORD STONHAM: My Lords, when the Government consulted voluntary organisations we had views expressed, and estimates given, by the Joint Council for the Welfare of Immigrants, by the Committee on United Kingdom Citizenship and by the International Soviet Social Service of Great Britain. Those views and interests were in many cases dissimilar, and it is this fact that prompted my right honourable friend to ask Sir Derek Hilton to undertake this task, having regard to his great and important experience in East Africa, and having regard also to the fact that we should get a view independent of the Government which would be generally respected. There has otherwise been no movement from the statement that I made from this Bench on behalf of the Government in May. So far as the date is concerned when Sir Derek may be expected to complete and to present his Report, we expect that to be early in September, some six or seven weeks hence.
LORD FOOT: My Lords, in the meantime is advice being provided in the countries of origin?
LORD STONHAM: Yes, my Lords, and I would add that these new arrangements did not start until May 16, so that June was the first full month for entry into this country requiring entry certificates. In the month of June this year there were admitted for settlement at Terminal 3 London Airport 2, 092 immigrants, compared with 3, 138 in the month of June, 1968. As the noble Lord is well aware, at Third Reading—this was before the new procedure was brought in—I mentioned that the number had declined very considerably. So the fact is that there are virtually proportionately as many coming in now under the new arrangements as were coming in under the old before the new ones were introduced. I think that is evidence that they are working, that the advice is being given, and that nobody is being deprived, although understandably they may perhaps be somewhat delayed.
LORD FOOT: My Lords, I ask this purely for information and not to harry the Government in any way, but is the noble Lord saying that the voluntary bodies have been provided with financial assistance to enable them to give advice in Pakistan, India, and the Caribbean to these immigrant dependants?
LORD STONHAM: Yes, of course I am aware that this advice is being given, and this is one of the dissimilarities. The Joint Council for the Welfare of Immigrants asked for a grant of some £22, 500 for six months for the provision of advisory services covering India, Pakistan, the West Indies and Guyana, with offices in various towns in this country. The Committee on United Kingdom Citizenship have submitted estimates for the provision of an advisory service with offices in London, Nairobi, Kampala, and Bombay at a cost of £16, 675 a year. These are some of the things that have to be looked into. My right honourable friend the Home Secretary thought that if we had someone with the standing and immediate current and recent experience of Sir Derek Hilton to look into these matters, to talk to these bodies and to advise us, we get an objective view which, as it were, would collect the voices. We want to get it right before the statutory arrangements come in. I am sure I carry the noble Lord with me in this: let us get it right now. Just be patient for another six or seven weeks and we

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can then rely on the advice that is given to us.
LORD BROCKWAY: My Lords, may I ask my noble friend whether he is aware that all of us, whatever our view about Commonwealth immigrants, wish these new arrangements to be carried out humanely and without cruelty? Is it not the fact that these new arrangements were announced without any provision being made at all for the assistance of the immigrants from India, Pakistan, and other countries to get advice as to how far they should appeal? Is it not a fact that in three months, as my noble friend himself said in reply to me last week, there has been only one applicant? Are we to go through another six or seven weeks before there is machinery by which these wretched people, mothers and dependent children, are to have an opportunity of knowing what their rights are?
LORD STONHAM: No, my Lords, it is not right that we have gone three months. The new arrangements started on May 16, and to-day it is July 24; that is somewhat less than three months, in my reckoning. Further, the fact that only three appeals have so far been received is not evidence that the appeals will not come through in sufficient numbers, because all applicants who have been refused have three months in which to appeal, and two of the three appeals have been received only this week. The one case that has been decided came from Ghana, and it was an appeal by a lady who alleged that she was the wife of a gentleman in this country. Apparently the gentleman disputed that, and the lawyer who decided the appeal refused entry. These matters are being considered carefully, and I hope my noble friend will have regard to the figures I have quoted, which prove that under the new system the numbers coming in where entry certificates are compulsory are very little, if any, less than the numbers that were coming in before, when the entry certificates were not compulsory.
LORD BROCKWAY: My Lords, does my noble friend see this situation? An illiterate woman and children in a distant village, first having to go to a local district centre to get police permission and then having to go to the centre to get the exit permit, not knowing in the
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least what the provisions are and having to wait days and days—often having to sleep on the pavement. Surely Her Majesty's Government can do something to humanise this process?
LORD STONHAM: My Lords, I am well aware of these things. Indeed, had I not been aware I should have known from my noble friend, because he has mentioned them on a number of occasions. These conditions are indigenous, as it were, to the countries where so many of the population are illiterate. The point that I am making is that arrangements were existing at the offices of the High Commissioners when we started. We augmented those arrangements for advice immediately, sending very skilled people out from the Home Office to augment that advice, and the fact remains—and I ask my noble friend and your Lordships to accept this—that the numbers coming in are virtually the same since the new arrangements as before. I think that this could be accepted as reasonable evidence that the arrangements are working properly and humanely, and that no one is—or, at least, if any, very few people are—suffering any additional hardship.

GOVERNMENT STATEMENTS
LORD BESWICK: My Lords, I shall be making a Statement about the Summer Recess at 3.30 p.m. to-day. At a convenient moment after that time my noble friend Lord Chalfont will be making a Statement on Mr. Gerald Brooke, and this will be followed by a Statement on Social Insurance Benefits by my noble friend Lady Phillips. May I add the reminder that dinner will be available this evening from 7 to 8.30 p.m.

PROCEDURE OF THE HOUSE
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I beg to move that the Second Report from the Committee on Procedure of the House be now considered.
Moved, accordingly, and, on Question, Motion agreed to.
The Committee's Report was as follows:
1. IRISH PEERS
On November 24th 1966 the House endorsed the opinion of the Committee for Privileges

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"that the right to elect Irish representative Peers no longer exists".
In the light of this decision, the Committee have considered Standing Orders Nos. 68 and 69, which purport to regulate:—

(a) claims to a right to vote at elections of Peers of Ireland;

(b) the procedure for treating the claims to Irish Peerages in abeyance.

The Committee have taken note of the fact that Standing Order 68 has been used as a means of validating routine claims to the succession of Irish Peerages, as distinct from Peerage claims that would arise on petition to the Sovereign.
The Committee understand that, notwithstanding the decision of the House, taken on November 24th 1966, in regard to Irish representative Peers, the Lord Chancellor is nevertheless prepared to continue to consider and decide such routine claims to succession in the Peerage of Ireland as may be submitted to him.
In these circumstances, the Committee recommend that Standing Order 68 should be amended by leaving out the words "A claim of a right to vote at elections of Peers of Ireland to sit in the Parliament of the United Kingdom" and inserting in their place:—
"A claim to any Peerage of Ireland".
They see no reason to amend Standing Order 69.
2. DIVISIONS: INSUFFICIENCY OF TELLERSM
The Committee have considered the procedure to be followed in cases in which, after a Division has been called, a single Teller only is forthcoming. In such a case the terms of Standing Order 47 cannot be complied with, and the Committee recommend that the Lord on the Woolsack or in the Chair (as the case may be); shall then declare that the question is resolved in favour of the majority; and that the following form of words be used:—
"My Lords, Tellers for the Contents [Not-Contents] have not been appointed pursuant to Standing Order No. 47. A Division, therefore, cannot take place, and I declare that the Not-Contents [Contents] have it."
THE EARL OF LISTOWEL: My Lords, I beg to move that this Report be agreed to.
Moved, that the Report be agreed to.—(The Earl of Listowel.)
On Question, Motion agreed to.

LATE NIGHT REFRESHMENT HOUSES BILL [H.L.]
House in Committee (on Recommitment): Clauses and Schedule agreed to.
House resumed: Bill reported without amendment; Report received.
Then, Standing Order No. 41 having been suspended (pursuant to the Resolution of July 14), Bill read 3a.
THE LORD CHANCELLOR (Lord Gardiner): My Lords, I beg to move that this Bill do now pass. This is another Consolidation Bill for which we are grateful to the Joint Committee, who concluded their Report by saying that they.
"… are of the opinion that the Bill consolidates the existing law with such corrections and minor improvements as can properly be authorised under the Consolidation of Enactments (Procedure) Act 1949 and they consider that there is no point to which the attention of Parliament ought to be drawn."
My Lords, I beg to move.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
On Question, Bill passed, and sent to the Commons.

ARCHITECTS REGISTRATION (AMENDMENT) BILL
3.1 p.m.
LORD LLEWELYN-DAVIES: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Llewelyn-Davies.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 agreed to.
Clause 2 [Repeals]:
On Question, Whether Clause 2 shall stand part of the Bill?
LORD BELSTEAD: On Second Reading, the noble Lord, Lord Llewelyn-Davies, told the House that Section 14 of the Architects (Registration) Act 1931 obliged the Architects' Registration Council to devote 50 per cent. of its fees to a scholarships and grants fund. The noble Lord further said that the benefits of the Education Act 1944 so reduced the calls on this fund that substantial sums had accumulated, which I entirely accept has been unavoidable.

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For this reason, Clause 2 will repeal Section 14 of the 1931 Act. I wonder whether the noble Lord could give us further information now about the sums of money which have hitherto accumulated in this fund?
LORD LLEWELYN-DAVIES: I am grateful to the noble Lord, Lord Belstead, for asking this question, which gives me an opportunity to give your Lordships a little more information than I gave the House on July 8. The sums to which he referred, which have been accumulating under the Act as it now stands, have risen steadily since the year 1935, and particularly, of course, since the passage of the Education Act 1944. In 1968, which is the last date for which information is available to me, they amounted to almost £72, 000. This may seem a comparatively small sum when compared with others which have been in our minds recently, such as the cost of placing a man upon the moon. But in relation to the sums which we have to spend on promoting education and research in architecture, they are substantial and useful, and one of the benefits of the Bill now before your Lordships is that they would be freed for use in constructive and valuable ways.
LORD BELSTEAD: I thank the noble Lord for the information which he has kindly given, which strengthens further the arguments in favour of this Bill which has received support on all sides of both Houses.
Clause 2 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported without amendment; Report received.
Then, Standing Order No. 41 having been suspended (pursuant to the Resolution of July 14), Bill read 3a and passed.

DIVORCE REFORM BILL
3.6 p.m.
LORD STOW HILL: My Lords, I beg to move that the Report be now received.
Moved, That the Report be now received.—(Lord Stow Hill.)
On Question, Motion agreed to.
Clause 2 [Proof of breakdown]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendments Nos. 1 to 4:
Page 1, line 13, leave out ("since the celebration of marriage")
Page 1, line 16, leave out ("since the celebration of the marriage")
Page 1, line 22, leave out ("since the celebration of the marriage")
Page 2, line 1, leave out ("since the celebration of the marriage").
The noble and learned Viscount said: My Lords, I think it would be to the convenience of the House if the first four Amendments in my name were all taken together. They all raise the same point, to leave out the words "since the celebration of the marriage" where those words appear in paragraphs (a), (b), (d) and (e) of Clause 2 (1) of the Bill. I referred to this matter in Committee, and the noble Lord, Lord Stow Hill, said that he would consider it. I have put down these Amendments because it seems to me that the inclusion of these words really serves no useful purpose; and, indeed, their omission from paragraph (c), if they are in all the other paragraphs, might lead to difficulties.
I do not suppose that anyone would think that a divorce founded on adultery could possibly be granted on adultery if that adultery was committed before the marriage. Therefore, in relation to paragraph (a), it really seems unnecessary to have the words, "since the celebration of the marriage", included in relation to adultery. It might be, I suppose, that someone could be regarded as having committed adultery through cohabitation with a married person before marriage. But if anyone, after this Bill is passed, had the temerity to seek to base a petition upon that ground, I should think that it would have very short shrift indeed.
With regard to paragraph (b), it seems to me that the language as it now stands is open to misunderstanding. That paragraph reads:
"that since the celebration of the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent".
The inclusion there of the words, "since the celebration of the marriage", would make it appear that to come within that particular provision you have to find conduct which commenced on or shortly

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after the celebration of the marriage. I know that that is not the intention of the promoters of the Bill, but it seems to me to be a fair or possible interpretation of the language used. Therefore, I think that the words would be better left out of paragraph (b).
When one comes to paragraph (c), it is curious that the words included in the other paragraphs are not included there, and I think it shows that there is really no need for them at all. But when one comes to paragraphs (d) and (e)—the living apart provisions—there is a specific reference to the parties to the marriage living apart for different periods, and it really is otiose to say that the parties to the marriage must have lived apart since the celebration of the marriage. These are really drafting points, and I should therefore like to move that those words be omitted. I beg to move.
LORD STOW HILL: My Lords, I am grateful to the noble and learned Viscount for the thought that he has obviously given to this matter, and for the trouble he has taken in framing the Amendments and putting them on the Marshalled List. The advice that I give to your Lordships is that they will improve the Bill and remove uncertainty, and I hope that your Lordships will accept them.
LORD LEATHERLAND: My Lords, we are asked to accept all four of these Amendments in the same spirit. But is there not a difference in the significance of the words, "since the celebration of the marriage" in the respective paragraphs (a), (b), (d) and (e)? I would myself have no objection to deleting them from paragraph (a); similarly, with regard to paragraph (d). But let us look at paragraph (b). It may come to the knowledge of the wife that her husband, ten years before the marriage, had been living a homosexual kind of life. Is she to be deprived of the opportunity to bring that up and say, "I cannot continue to live with him."? The noble Viscount, Lord Dilhorne, may have an answer which will explain that.
VISCOUNT DILHORNE: My Lords, I think I have a very short answer to that point. If the noble Lord will look at paragraph (d) again, he will see that it reads:
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"that since the celebration of the marriage the parties to the marriage have lived apart for a continuous period of at least two years being a period immediately preceding the presentation of the petition … "
LORD LEATHERLAND: No, my Lords; I am referring to paragraph (b).
VISCOUNT DILHORNE: As to paragraph (b), I would certainly say that conduct prior to the marriage should not afford a ground for divorce, and I do not think that there is any risk of that happening as a result of the dele ion of these words. If these words are kept in as they are now, it seems to be arguable, to say the least, that you can come within paragraph (b) only if you find that the conduct complained of had started fairly soon after the celebration of the marriage.
On Question, Amendments agreed to.
3.12 p.m.
THE EARL OF CORK AND ORRERY THE EARL OF CORK AND ORRERY: moved Amendment No. 6:
Page 2, line 22, at end insert—
("Provided that in the calculation of the period of at least five years for the purposes of section 2 (1) (e) regard shall not be had to any period during which the parties to the marriage lived apart prior to the time when one party decided on account of matnmonial difficulties to live separately from the other.")
The noble Earl said: My Lords, this Amendment is designed to provide a much more complete and, I think, more satisfactory definition of "living apart" than is at present contained within Clause 2 (5). Its particular application is to Clause 2 (1) (e), the matter of living apart for five continuous years affording grounds for divorce, and, to some lesser extent, to Clause 2 (1) (c), the matter of desertion for a period of two years. Your Lordships will remember that we had an interesting and quite important debate during Committee stage on an Amendment somewhat similar to this. At the end of it, the noble Lord, Lord Stow Hill, undertook to go carefully into this definition and to do his best to come back to the House with an improved clause. However, the noble Lord has not succeeded, for reasons which he has, with his invariable courtesy, indiciated to me and which he will doubtless explain to your Lordships in due course. But it remains true that the problem of the definition of "living apart" contains what the noble Lord himself has described as "an extremely difficult point". I think those were his words.
The point, my Lords, is this. It is not enough to say, I submit, that a five-year separation is sufficient by itself to prove that a marriage has irretrievably broken down; and I suggest that it is important to bear in our minds those words which have been put forward by the noble Lord and others as the basis of this Bill—that irretrievable breakdown is the only acceptable basis for divorce. A five-year separation is not enough in itself to prove that such a breakdown has occurred. It must be necessary also to show, I submit, that that separation was brought about by causes which themselves arose from a difficulty of a matrimonial kind; or, to put it in another way, that the people concerned had been living apart for five years because, for one reason or another, they could not bear to live together. In other words, they must have been undergoing some conditions of estrangement, to put it at its mildest, for the whole of those five years. This notion of estrangement is at present totally absent from this part of the Bill, and the Amendment is designed to bring it in.
At the risk of being repetitious, the intention is clear. The five-year separation must, to be effective, provide proof, or must amount to proof, of breakdown of the marriage. Does it in fact prove anything of the sort? I think the answer is "Yes" if the petitioner can satisfy the court that the whole separation was brought about by matrimonial difficulties. The onus rests upon him, as it must upon any petitioner, of showing that that is so; and showing in this case that the five-year period began at a particular point, that point having arisen or occurred when the matrimonial difficulties became such that one party to the marriage decided that he could no longer live with the other. That is probably clear. May I, for the sake of brevity, refer to that period of five years, beginning with a matrimonial whim, as period A? It will save a lot of words later on if your Lordships will accept that idea.
Now what happens if these people have already lived apart for other reasons, or were living apart for quite other reasons, when period A, the five-year qualifying period, began? Are we to add that earlier period of separation, which had nothing to do with the breakdown of the marriage, to period A, the breakdown
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period, thereby putting the beginning of the five-year period back to an earlier starting point in time? The Bill, in Clause 2 (5), says "Yes", for the Bill, or that part of it, is interested only in the total length of living apart and is not interested in any way in the reasons why those people were living apart. Therefore, the whole of the period, however caused, may be taken into account as a part of period A, and qualify as grounds for divorce. I say it ought not. If I may—I hope, again, in the cause of simplification and not of complication—refer to that period as period X, I say that period X must not be added to period A.
Let us consider what period X consists of. This is separation which has arisen through causes quite unattributable to any kind of marital breakdown—and they may be causes which are either voluntary or involuntary. On the Committee stage we discussed only involuntary ones, such as imprisonment or overseas postings, but voluntary ones must be thought of as well—where, for example, the husband, with the full agreement of his wife, accepts a job overseas. They agree to this, looking forward to a happy reunion at the end of it, perhaps in more prosperous circumstances. He may have been able to take a job at more money than he is getting for the one he is doing. Or the husband may perhaps elect to sail around the world. The wife approves and is perfectly happy. This is something of which we have heard quite a lot lately. Is that kind of separation to be included in the five-year period qualifying for divorce? Surely not, my Lords.
Now involuntary separation, which we have already touched on in the earlier debate; that is to say, separation quite unattributable to rift in the marital lute, brought about by circumstances quite outside the control of either of the parties—such as, for example, a man who finds himself in prison or in hospital, or a regular soldier sent to Hong Kong, or an airman, or a sailor on patrol in a nuclear submarine, or a policeman in Anguilla. Are these periods apart to be included as well in the qualifications for divorce, in period A? Again, my Lords, surely not.
One answer to this question has already been advanced with considerable cogency by the noble Lord, Lord Stow Hill. He

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says, "They should be added", and he puts forward this particular argument. What will happen if a person is separated from his wife, or one is separated from the other, perhaps for a long period of years in prison, and then it turns out that the one who is left outside, probably the wife, concludes that she cannot possibly look forward to a reunion at the end of this long period of separation? Is she then to be prevented from starting the five-year period simply because the other person is not there?
The answer, I concede at once, is, No. if we take the ground for starting this five-year period as being one of matrimonial difficulty, which is the phrase used in the Amendment, it is open to the potential petitioner to say, and to make it perfectly plain, that she would not have a temporary reunion with her absent partner on any terms. She is able to do that, or should be able to do that, Whether that person was living in the next room or sitting on the next chair, or was in prison or in Siberia or in Australia or anywhere else. The point is that a matrimonial difficulty has occurred which is established by the fact that one partner cannot go on; and therefore the irretrievable breakdown of the marriage, the five-year period, begins to run from that time.
The petitioner is protected against the difficulty which has been argued reasonably by the noble Lord, Lord Stow Hill, of being unable to initiate the qualifying period A for divorce, the five-year period, simply because his or her partner has been absent, whereas the other person who is presumably the respondent is in turn protected from receiving the extra punishment of finding himself liable to divorce, of finding his marriage being destroyed, in addition to the punishment he has already received by being in prison or in Australia—which is manifestly unjust to him. By this means I think that both parties to the marriage will be protected from injustice and unfairness and at the same time the divorce will become possible at the end of a five-year period for the reason that is laid down—and I will repeat this again—on the basis that the marriage has irretrievably broken down and is seen to have been in a state of having broken down for five continuous years.
The noble Lord, Lord Henley—and perhaps other noble Lords, but particularly Lord Henley—suggested that there are already safeguards in the Bill to prevent things going wrong in the way that I have suggested unjustly to the absent partner. He adduced his argument in support of this contention from the provisions of three subsections already in the Bill. The first is contained in Clause 2 (3) which says that if the court is not satisfied that the marriage has broken down it shall not grant a divorce. That is to say, to quote the noble Lord, they could refuse a divorce. The noble Lord said:
"… if there is an unwilling respondent who has been absent for more than five years and is being divorced against his wi11, the duty of the court is to refuse the divorce … under Clause 2 (3) … "—[Official Report, 11/7/69, col. 1358.]
This, in fact, is no safeguard, because the court may be satisfied that the marriage has broken down and therefore will be required to grant a divorce. But under this clause the court will no; have to be satisfied that the marriage has been in a state of breakdown for five continuous years. All it requires is that the people should be living apart—perhaps one is in prison—and that the marriage has broken down; and that can be after a period of breakdown lasting only one year. The petitioner can say that his marriage is totally dead and that he refuses to live with this woman. Simply because of this decision—which, perhaps, he came to only two weeks ago or, say, three years ago—there is no difficulty in obtaining the divorce because in fact the partner has been away for five years. So Clause 2 (3) provides no safeguard at all.
The second argument that the noble Lord adduced was based on Clause 3 (2) which provides that if the court feels that "there is a reasonable possibility of a reconciliation" the court may adjourn the proceedings for that reason. Here, again, it may be plain to the court that there is no chance of reconciliation whatever. It does not need five years to establish the fact that there is no chance of reconciliation. Any petitioner can say, "I will not hear of a reconciliation". If he says that, then the court is bound to accept his word that there is no possibility of reconciliation and the divorce must be granted simply on the evidence

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that they have not lived together for five years—for no matter what cause. So there is no protection, no safeguard under that subsection. The third safeguard that the noble Lord claimed to exist was in Clause 4, which deals with the financial or other hardships. Clearly, it is not reasonable to suppose that in any particular case there will be hardship of any kind. Divorces can come about between persons who are exceedingly affluent and entirely prosperous. There need be no hardship whatever to the respondent in the divorce; and, in fact, the question of hardship need not enter into the case at all.
My Lords, here we have three alleged safeguards, none of which can be expected to operate in any particular case—and probably not in the majority of cases. I submit that those three safeguards are totally disposed of by these arguments. There is no safeguard whatsoever in the Bill to prevent a divorce being secured under the five-year rule even though the marriage has not broken down for as long as five years. The words in the Amendment as introduced, "matrimonial difficulties" I have already referred to. I submit that with those words in the Amendment we have a safeguard against precisely the difficulty that it is intended to meet.
I will put this difficulty in a slightly different way. It is this. The Bill—and I repeat it again—is devised explicitly to allow divorce only after proof of total breakdown of the marriage. Despite that express intention, it provides divorce on the demand of any one person who may apply for it after living away from the husband or the wife, for no matter what reason, for five years. I believe that this Amendment, or something like it, will effectively reduce the danger of a total breakdown of the law of divorce—a law which is required not only to provide divorces in certain circumstances but also to prevent divorces in circumstances in which they are not required or just. We should not merely make divorce easy but also make marriage more secure. In my submission, this clause undermines the institution of marriage. I therefore commend this Amendment to your Lordships, and I beg to move.
BARONESS SUMMERSKILL: My Lords, we have debated this aspect of
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the Bill before; but on reading Hansard I was very disturbed at the expressions used by my noble friend behind me. I am quite sure that he has not given enough thought to this aspect of the Bill. If I may remind him, the noble Lord, Lord Stow Hill, said on Committee stage:
"If I might offer advice to the Committee, I should say that the clause as it stands, with the existing definition contained in subsection (5), would in fact include the case in which a person is sent to prison. In other words, the time that he is in prison would count as part of the five years."—[Official Report, 11/7/69, col. 1345.]
Then he said, in reference to a noble Lord:
"I believe he was thinking of somebody sent to prison for six months, and he thought that should not count. I think it should count."—[col. 1346.]

I want to bring to the attention of the House the position of the women prisoners. Holloway, I believe is only half full; and I am given to understand most of the women there are first offenders. If a woman has been convicted of a certain number of petty larceny offences, she might perhaps be sentenced to a year or two; an abortionist might get a five-year sentence; a woman who has forged a signature could, I suppose, get two, three or four years. May I remind the House that we are not talking about hardened prisoners, because I am told that there are few recidivists among women. Here we are telling a woman, when she is sentenced, not only that she is not only going to be given the period of imprisonment which has been thought appropriate by those people who consider what is the appropriate sentence for a certain crime but also that the time spent in prison will count if her husband decides to divorce her.
Your Lordships will forgive me if I again put the position of the woman. We cannot equate the position of a woman in prison with that of a man in prison. The woman has left her family. She may have committed some crime, but no one can deny that the woman may be an affectionate wife and a devoted mother. One has only to go to the maternity ward in Holloway Prison to be convinced of that. If this matter is left as it is, a woman will have another sentence. Not only will she be sentenced as decreed by the law, but she will have

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to endure a sentence which stems from this Divorce Bill. Surely, my Lords that is not our province. A woman will be told that if she is in prison for five years her husband can divorce her although she has not been guilty of a matrimonial offence.
LORD HAWKE: My Lords, may I interrupt the noble Baroness? Cannot such a woman just claim that the marriage has not broken down? According to Clause 2 (3) she has only to say that and the other party has to prove that the marriage has broken down.
BARONESS SUMMERSKILL: My Lords, I am coming to that. The noble Lord must not think I am so simple as all that; I have been involved in these matters for many years. I want to explain that very often when a woman is convicted her husband, quite understandably, has to find another woman to look after the home and the children; that is the norm. A woman, perhaps from up the street, may come to look after the home. She knows when the wife is coming back from prison. We are now introducing a provision which the woman from up the street will know all about; and she may say to herself, "If I make myself of such great use to this husband that he feels that everything is happy, he will not want to get rid of me." If the woman responds to the husband's invitation to sleep with him, of course the marriage will break down and we are enabling this to happen. The wife has not the slightest chance of effecting a reconciliation. She is in her cell and it is no good for her to say, "When I get out I am going to start again anyhow, and in my home I will try to be a bit better"—if she has had trouble with her husband. Here we are helping to establish not only the breakdown of the marriage (because the newcomer will know that a divorce can be automatic); we are encouraging the husband to divorce his wife.
It is not a question of the wife's having to serve a long sentence. All the small sentences are going to add up. This is utterly cruel. I plead with your Lordships that, for a woman, a home is a different place than a home as seen by a man who is in prison. It is her life. Her
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maternal instincts are bound up with her home; and we are saying that she is not only to spend a number of years in prison but that this may involve her in a divorce which she is quite helpless to avoid because it will be impossible for her to effect a reconciliation. My Lords, I ask my noble friend, Lord Stow Hill, whether it is our province to put a provision into the Bill which would not only make a sentence imposed upon a woman doubly hard but which would threaten to undermine the whole of the kind of life to which she attaches so much importance. Therefore I ask my noble friend once more to take back the Bill and think what he can do to alter its provisions in order to avert what I consider would be a grave injustice.

THE SUMMER RECESS
3.35 p.m.
LORD BESWICK: My Lords, I wonder whether it would be convenient at this point if I said to the House that it is proposed that the House should adjourn to-morrow, Friday, July 25, until Monday, October 13? On a further matter, about which there is wide interest, may I say that my right honourable friend the Home Secretary proposes to table today certain Amendments in lieu of the Lords' Amendments to the House of Commons (Redistribution of Seats) (No. 2) Bill, and I understand that they will not be proceeded with to-day.
LORD CARRINGTON: My Lords, I am obliged to the noble Lord, the Government Chief Whip, for giving us that information. It would seem from that that we shall not then be receiving the Bill back from another place until the spill-over after October 13. I think that your Lordships—certainly noble Lords on this side of the House—will widely welcome this as evidence that the Government are seriously considering the Amendments which your Lordships passed earlier this week.
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, the noble Lord, Lord Carrington, needs to be careful as to the conclusion which he draws. None the less, I appreciate his conciliatory approach.

DIVORCE REFORM BILL
3.37 p.m.
Report stage resumed.
BARONESS STOCKS: My Lords, may I ask my noble friend Lady Summerskill to clear up one point in her speech which I did not follow? She seemed to suggest that it would be possible in regard to a woman who has received a number of short sentences for them to be added up, whereas presumably the clause relates to a continuous separation. A woman may be sentenced to six-months' imprisonment and go home after serving that sentence; and she may be sentenced to another six months and then go home again. That is not a continuous separation, and very few women get a continuous sentence of five years.
BARONESS SUMMERSKILL: My Lords, if I said that, it was a verbal slip. I was talking about short sentences and describing sentences given to women. If short sentences as well as long—
BARONESS STOCKS: If they are short sentences they are not continuous—
SEVERAL NOBLE LORDS: Order!
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (LORD SHEPHERD): My Lords, I see that my noble friend Lord Silkin is in the Chamber and he reminded me the other day about the procedure on Report stage. It might therefore be in order for me to remind the House that on Report the only person who has the right to speak twice on an Amendment is the noble Lord who moves the Amendment. In view of the large number of Amendments which we have on the Marshalled List I hope that the House will feel that we should strictly obey that particular rule.
BARONESS SUMMERSKILL: My Lords, may I ask my noble friend whether it is in order for me to answer a question?
LORD SHEPHERD: My Lords, I gathered that the noble Baroness, Lady Stocks, asked my noble friend whether she would answer a question and I thought she did it in the context that my noble friend Lady Summerskill had not resumed her seat; but I think it would
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be going a little too far if my noble friend Lady Stocks were to ask a second question.
THE LORD BISHOP OF EXETER: My Lords, I think that we are all agreed that this is a very difficult matter and the arguments advanced in favour of the Amendment have a certain force. There is, however, another side to it which is equally difficult. What this Amendment really requires is that when a separation occurs, whether it be voluntary or involuntary, one of the two parties must decide at once that it is going to be a separation because of a matrimonial difficulty; that is, that the five-year period shall start to run. I think it would be most unfortunate if any pressure whatsoever were put on the parties to a marriage to declare at that early stage that the parting was to be for ever, but this in fact is what the Amendment would do. If one of the parties came to a solicitor about a maintenance order, or whatever it might be, the solicitor would say, "Yes, certainly; but, you know, if you want your five-year period to run you had better say now that it is for ever." I think that most people who get into this kind of matrimonial difficulty do not want to do that. They may not yet have made up their minds that it is forever. Probably they hope—it may be even hope against hope—that somehow or other matters will come right. And then they do not come right. This Amendment says that in two years' or in three years' time a person must go and say, "Because of matrimonial difficulties, I can never go back to my husband "—or wife, as the case may be—and then the five-year period starts. I cannot see much sense in that.
There is a further difficulty—about prisoners. We see the amount of injustice where the separation has been quite involuntary. Consider this case. A man is sent to prison for five or seven years, and although the wife, for the sake of the children, may be determined at the end never to have him back, she feels a duty towards him while he is in prison to visit him and write to him, and she does this. Then her solicitor may say to her that she had better be careful, because the judge may say that because she has visited her husband and written to him, and he has written to her, there has not been this continuous separation

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and therefore the marriage has not broken down. The solicitor might add, "So, if I were you, I would keep away. Have nothing to do with him." My Lords, this is monstrous. And I believe that this is what would happen if this Amendment were carried. Therefore, though I perfectly understand and sympathise with the arguments in favour of the Amendment, I feel that I must vote against it.
BARONESS GAITSKELL: My Lords, I oppose this Amendment because it seeks to qualify the definition of living apart and to make exceptions. The very fact of trying to make exceptions only leads to confusion. And let us not forget—and here I speak to my noble friend Lady Summerskill—the court has the final power of discretion, and in the cases she quoted I do not believe that the court would grant divorce. To qualify this definition is to remove the scaffolding which supports the major feature of this Bill: that is, that separation, and not just a marital offence, is the fact from which breakdown of a marriage is inferred. Separation is both the symptom and the cause of breakdown. In this Bill we accept that separation, voluntary or involuntary, can lead to breakdown of marriage. That is a very sad but a very true fact.
When we discussed during the Committee stage of the Bill the Amendment which incorporated this idea, the noble Lord, Lord Sandford, accused me of being very unrealistic about the position of the Forces in war and in peace. It is about the Forces that we are mainly or mostly concerned. I must confess that I was very ignorant, but I have sought out the facts about the Forces and here they are, straight from the mouth of the Ministry of Defence. The maximum unaccompanied tour abroad to which we commit Servicemen at present is 15 months. This would be in the case of the Royal Navy only and it applies equally to shore or afloat service. The R.A.F., for their part, have some unaccompanied tours of a maximum duration of one year. These are in such places as Goose Bay, Gan, Meshad and Shahabad. The normal tour abroad for unaccompanied Army personnel would be nine months. In the Gulf, however, a 13-month tour of duty is standard, although this carries an entitlement to a
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free return flight home to the United Kingdom for a month's leave during the period of foreign service. There will, of course, be occasions when men on an unaccompanied posting experience some delay, due to accommodation difficulties, before their wives and families are able to join them. I myself am greatly reassured by these figures and I hope that your Lordships are, too, when it comes to the Divorce Reform Bill.
If we analyse the kind of jobs that have built-in dangers to marriage, because they involve periods of separation, we must include the Forces and the Diplomatic Service—and even jobs with nightwork, if you like. So I oppose this Amendment strongly, despite the fact that the clause as it is has anomalies, including anomalies for prisoners. When a man or woman commits a crime, there is the danger that it may result in the breakdown of his or her marriage. So I would say that this Amendment should not be accepted.
VISCOUNT DILHORNE: My Lords, I have listened with interest to the noble Baroness, Lady Gaitskell. She has made her point of view clear. I regret, though, that it appears to be based on a complete misunderstanding of the effect of subsection (3) of Clause 2. If the Amendments which were moved to that provision had been carried, there would have been great force in her observation that the courts would always have a discretion to refuse to grant a divorce and that the final power of discretion would rest with the court. If she will read that subsection again, she will see that it is expressed in the following terms.
"unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, … "
the court
"shall … grant a.. divorce."
So the court has no discretion unless it is satisfied on all the evidence that the marriage has not broken down. If the issue is in doubt, subsection (3) will not operate.
The noble Baroness gave us some reassuring information about the length of absence due to Service duties now, but the situation may change, and I would ask the noble Lady to consider not only the situation in peace time but also the situation in war time. There may well

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be very prolonged absence during a time of war, and, as the Bill now stands, that period of absence will count and is bound to count towards the five years. There can be no doubt about that. And I assume that this Bill is meant to operate in times of peace and in times of war.
Many of us had qualms about supporting Clause 2 (1) (e). I supported it for this reason: that if the parties have been living apart voluntarily for five years then, even though one of the parties may not agree to the divorce, it is clearly established that the marriage has irretrievably broken down. I voted for that because I do not think that recognition of that fact should be held up because one of the parties to the marriage refuses his or her consent to a divorce. But the more we narrow that period of separation because of matrimonial difficulties, lack of harmony in the home and all that, the less does the inference arise that the marriage has irretrievably broken down. The noble Lord, Lord Stow Hill, has made quite clear that, whatever the cause of the initial separation, be it voluntary or due to the husband having to work abroad in climates which the wife could not stand or because the wife remained in this country to bring up young children—no matter how long the period of separation by agreement for any of those reasons may be, nevertheless that period will count towards the five-year period for the purposes of subsection (1) (e) if, say within six months of the end of the five-year period, one of the parties says that he or she is not prepared to resume living with the other.
So if your Lordships accept this subsection as it stands, to my mind you will be completely destroying the inference that arises from subsection (1)(e). You will be making divorce obtainable against the consent of the other party, when the separation, though in fact for five years, is only for a very short part of that time, possibly due to matrimonial difficulties, by one saying that she or he will not live with the other. So I think there is great force in what the noble Earl, Lord Cork, has said.
I disagree with the right reverend Prelate the Bishop of Exeter when he says that this would mean that the petitioner would have to make up her mind at
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once directly the separation occurred. I do not see it happening in that way. It may be, as the noble Baroness, Lady Gaitskell, said, that because of the long separation the marriage gets on the rocks, and one party will reach the conclusion that he or she cannot or will not again live with the other. The time should run from then. That need not be at the commencement of the separation. In the case of a prisoner, it may come after he has been in prison for some time. When the right reverend Prelate says that the sending of letters by the wife to the husband in prison, or by the husband in prison to the wife, or a visit by the wife to the prison would amount to living together in the same household, I can only say that I completely disagree with him. Within the terms of subsection (5) it is clear that they would be living apart.
I think there is here a vital issue between the promoters of the Bill and those of us who have supported paragraph (e) in the belief that the period of five years would be a period of separation due to one party not being able to live with the other through his or her own desire; that is to say, five years after the marriage has gone on the rocks. On the last occasion, the noble Lord, Lord Stow Hill, if I understood him correctly, said: "Oh no; not at all, so long as there has in fact been five years' separation, no matter what the initial cause, and no matter how long that initial cause has operated, that five years will count, and on that you will get a decree against the will of the other party."
I certainly did not appreciate that the Bill went to that extent when we had it before us on Second Reading, and I very much hope that, if this form of words is not entirely satisfactory, a form of words will be found to make it clear that the only period that should count is the period after rifts have occurred in the marriage.
3.53 p.m.
LORD LEATHERLAND: My Lords, there are, I believe, many of us in your Lordships' House who see much that is good in several of the provisions of this Bill, but at the same time we see one or two things which we think are very bad indeed. I have been very much impressed by the noble Earl, Lord Cork

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and Orrery, in his effort to draw a distinction between that portion of the five years during which the people are friendly and that portion of the five years after an open declaration of war has been delivered.
One of the delightful things about debates in your Lordships' House is that we find so many noble Lords who have had experience of different facets of life. My mind goes back more than fifty years to the day when I was a company sergeant major in France. One of the men in my unit was a Polish Jew who had lived in London for three or four years. He was able to understand the spoken English word and was able to speak the English language; he was able to obey orders that were given to him. But he could not read or write English. So I was called in to act as the letter writer between him and his wife, who was in London. Week by week he would come to me and say: "Sergeant major, I want to write another letter to my wife." I would say to him: "How shall we start it?", and he would say, "Dear Wife "—and with such literary ability as I possessed I was able to keep up this loving correspondence between the Pole and his English wife for over 12 months. I also had to read back her letters to him. When the final letter came, after about 12 months, I noticed that the warmth of her affection seemed to have cooled a little. I read the letter to him, and he said: "Sergeant major, I want you to write back straight away." I said: "Very well. Shall I start off 'Dear Wife '?", and he said: "No. You start off, 'You old Cow'." At that moment I would apply the interpretation that the marriage had broken down. But it certainly had not broken down during the 12 preceding months. They were then corresponding and on perfectly friendly terms. I think it is right that we should draw a line of distinction between any absence which was quite voluntary and friendly, during which, indeed, the heart may have been growing fonder, and any absence which subsequently was on a hostile basis.
We now come to the text of the Bill, which says in subsection (5):
"For the purposes of this Act a husband and wife shall be treated as living apart unless they are living with each other in the same household."
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We have to realise that there are many husbands and wives who have to live physically apart, because of work, soldiering, prison or for other considerations. I feel that, so long as friendly relations have subsisted between them, it is not right that that period should be included in the five years so-called separation.
3.57 p.m.
BARONESS BIRK: My Lords, what I object to about this subSection is that it is treating human beings as digits without any opinions or emotions of their own; as though, if somebody goes abroad for five years for some reason, automatically the chances are that the husband or wife will divorce the other spouse. On the point made by my noble friend Lord Leatherland, possibly the quality of the letters failed in the end to keep the couple together.
LORD LEATHERLAND: I am a pretty good love-letter writer.
BARONESS BIRK: As we have heard my noble friend Lady Gaitskell point out, so far as service abroad is concerned, this is not very relevant. The point made by the noble Viscount, Lord Dilhorne, that we should have a divorce law which really covers the extremities of wet, does not seem to me to be the way in which one should create Statutes.
So far as the question of prisoners is concerned, I was a prison visitor and lecturer at Holloway Prison, and from my close contact with prisoners at that time I would say that where the marriage was stable and on-going, it did not break down, but where the marriage was adrift, then it usually did break down. To argue that this is an extra punishment, seems to me to be absolute nonsense. This is a question between husband and wife, if a man or a woman is in prison for that length of time. But I think I should point out that the sentence has to be a quite considerable one—I should have thought more than 15 years, counting the time off for good behaviour, and other time off—for anyone to serve a five-year sentence to-day. I cannot remember the number offhand, but I think there are about 3, 000 women prisoners in the country, and the number of long-term sentences served is very small. It seems to me that if a man or woman feels that

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his or her marriage has broken down because of the absence of the other partner in prison, then it is a matter for them. In fact, the courts have bent over backwards in order to give divorce on the grounds of cruelty when a woman has petitioned because her husband has been in prison. In one case the premarriage record was taken into account by the court, and the court decided that there was cruelty because the woman did not know about it.
It is for this reason that up to now we have not had imprisonment as a separate ground for divorce in this country. Every example that has been brought up is dealt with completely in this Bill. The court has power under several different clauses to turn down the petitioner's decree if it thinks that the marriage has not irretrievably broken down. Taking the cases cited by the noble Earl, Lord Cork and Orrery, and others, if the husband or wife tries to "clock up" the five years of separation (as the noble Earl called it, involuntary separation) then it is up to the respondent to prove that during a great deal of that period the marriage was in existence. It would be quite easy for the respondent to prove that. There are all the opportunities for this to be done in court.
What worries me is that if this proviso is passed it is going to detract enormously from the Reform Bill—I use the word "Reform" specifically. What this Bill is doing is cleaning up our divorce law, taking away a lot of the hypocrisy, the collusion and many of the things which create sensational news but are very undignified to human beings. If this proviso is carried it will lay open the opportunity for people to try to trick the courts and for those far more clever or who perhaps have rather more cunning lawyers to get an advantage over the more honest, ignorant and poorer people. I go back to my first point in saying that it is an insult and humiliating to men and women not to accept that human beings should make up their own minds whether they want to stay married to their spouses. They should not be treated in this spoon-feeding and quite unpleasant way.
4.2 p.m.
LORD SANDFORD: My Lords, the reform that this Bill seeks to introduce is
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divorce on the ground of breakdown of marriage rather than divorce on the ground of a matrimonial offence. Clause 2 specifies five indications of breakdown by which the court is to be guided. This is not, we all agree, the ideal way to establish breakdown, and it is not the way that the Archbishop's Group has recommended. It is agreed, however, to be the only practicable way, and the Bill has been drafted accordingly. These are crude, rough-and-ready indicators. A single act of adultery is certainly a crude indication of breakdown. It may not lead to breakdown, but certainly in every case it is a sign of something badly amiss. I submit that a period of apartness does not necessarily have any bearing whatever on the fundamental state of the marriage. It can only serve to breakdown or matrimonial trouble if it arises from the free choice of the partners to live apart.
I listened to and have since re-read our extensive debate on this point at Committee stage. I have listened with great attention to this debate, and particularly to the words of the right reverend Prelate the Bishop of Exeter, whose arguments I must admit have considerable force. But I am not convinced that it is impossible to distinguish in law between living apart by personal choice and living apart for other external reasons, such as service abroad, prolonged illness in hospital, or custodial sentence, none of which has anything to do with matrimonial trouble. A failure to make this distinction in this law will result in quite absurd anomalies.
Take, for example, the prison case. A long sentence to prison may virtually amount to a death sentence on the marriage as well. Our policy behind our penal system up to now and, in my view, an enlightened, correct and merciful policy, though not enjoying particularly large popular support, is that immediately on sentence the Probation Service, both outside and inside prison, with the help of volunteers if they can be had, visit both the prisoner and his wife and children, and come into action immediately in order to help the prisoner and the wife to bear the strain of separation, to mitigate the hardship of the sentence upon the family, and to pave the way for the offender's rehabilitation into his family and into society. What on earth is the sense of all this effort if after a

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prisoner is released that period in which all that sustained, skilled case work, all that care and patience by friends and neighbours, all the hope that has rested in his children while he has been in prison, can suddenly be stood on its head and called in evidence, as it can be under Clause 2 (1) (e) and Clause 2 (1) (f) as breakdown of marriage? A law that can have that effect surely must be an ass and we ought not to enact it. We ought rather to support the noble Earl, Lord Cork and Orrery, if he decides to press his Amendment, or adopt something better if anything can be devised.

RELEASE OF MR. GERALD BROOKE
4.7 p.m.
LORD CHALFONT: My Lords, I hope it will be for the convenience of your Lordships' House if I intervene and, with leave, repeat a Statement on Mr. Gerald Brooke being made in another place by my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs. The Statement is as follows:
"Mr. Brooke, the British subject who was sentenced by a Soviet court in 1965 to five years' imprisonment for alleged anti-Soviet activity, has been released and has returned to this country to-day. Her Majesty's Government have undertaken that a recommendation will be made for the remission in three months' time of the remainder of the sentence of 20 years' imprisonment which was passed on Mr. and Mrs. Peter Kroger in 1961 in connection with the Portland Spy Case. Upon their release Mr. and Mrs. Kroger will be free to go to any destination of their choice. We have also agreed that Polish consular officials may visit them at monthly intervals until their release.
"The Consular Convention between the United Kingdom and the U.S.S.R. provides that consular visits to British subjects in detention in the Soviet Union shall take place 'on a recurrent basis'. Under Soviet regulations such visits have been permitted not less frequently than once every four months; but the Soviet regulations also provide that offences against prison discipline may be punished by forfeiture of consular visits. At one
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time Mr. Brooke went for more than a year without a visit, and more recently Mr. Lorraine "—
your Lordships may recall that Mr. Lorraine is another British subject in custody in the Soviet Union—
"has been deprived of a consular visit. We have now been assured that oven in cases where offences against prison discipline are alleged, the Soviet authorities will favourably consider our request that the intervals between visits by British consular representatives should not exceed four months.
"The Soviet authorities have undertaken that, on the day after the departure of Mr. and Mrs. Kroger from this country, Mr. Michael Parsons and Mr. Anthony Lorraine, the British subjects who in 1968 were sentenced by Soviet courts to four and three years' detention respectively for smuggling drugs into the Soviet Union, will be released. "It has been arranged, as a separate matter, that three British subjects who have for some years been endeavouring without success to marry Soviet citizens will, not later than October 24, be granted visas to enter the Soviet Union to register their marriages, and that thereafter their partners will be free to leave the Soviet Union should: hey so desire. We have been told that one other British subject in this category may have a Soviet visa at any time.
"In deciding to make these arrangements, Her Majesty's Government have had three considerations in mind. The first is that of humanity towards Mr. Brooke. We were informed on April 28 that fresh charges, carrying very heavy penalties, were being prepared against him. His health has not been good throughout his imprisonment, and further years in prison might have the most serious consequences.
"Second, the Krogers will have served over 8½ years in prison. They will have paid a substantial penalty for their offences.
"Third, the other arrangements, which I have mentioned, affecting British citizens and consular visits, are in themselves desirable, and remove an obstacle for improvement in relations between this country and the U.S.S.R.

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"Taking these considerations into account, and recognising the counterarguments which can be advanced, I believe that the decision which I have announced is right."
4.11 p.m.
LORD CARRINGTON: My Lords, I must thank the noble Lord, Lord Chalfont, for repeating that Statement. I think everyone will be glad that Mr. Brooke is back in this country. He may have been silly but he certainly was not a criminal and he surely has paid more than enough for what he did. I do not think that anyone except the Government can know all the facts and the background of this case. For example, I do not think we can know how much use the Krogers can still be to the Russians. I know from personal knowledge—as I was First Lord of the Admiralty at the time of the Portland spy case, in which they were concerned—how important they were as the centre of an espionage ring. I do not think I would agree with the noble Lord, Lord Chalfont, that they have paid a very high price for the damage they did to this country. But that is eight years ago, and the Government may be right that they have outlived their usefulness to the Russians, though it must surely be an encouragement to other Russian spies that they have served only a third of their sentence and have been returned in this way.
I must say that I have misgivings about this deal in the sense that it really is a giving in to blackmail of this Government on behalf of a misguided, if innocent. or moderately innocent. man. But, as I said, only the Government can, and perhaps in this case should, know all the facts; and although I have these doubts I do not think, speaking for myself, I would wish to press the matter any further.
There is just one question I should like to ask the noble Lord, Lord Chalfont, and it is this. Are the Government really satisfied about the arrangements for these consular visits? I notice that we are going to allow Polish consular visits to the Krogers every month, while we have only been told that the Soviet authorities will favourably consider requests that intervals between visits by our representatives should not exceed four months.
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Are the Government really satisfied about this?
4.13 p.m.
LORD GLADWYN: My Lords, speaking on behalf of my noble friends on these Benches, may I say that of course we quite see that there was a very strong case for doing our best on humanitarian grounds to secure the release of the unfortunate Mr. Gerald Brooke, and that we greet this release with much relief and pleasure. Mr. Brooke, however, as we all know, was savagely punished for an offence which would not have been an offence at all in this country and which, even in other totalitarian States, would probably have resulted only in deportation or in a short period of detention. But, worse still, my Lords, it is now admitted in this Statement that the Soviet authorities were actually going to re-try him in a bogus trial on trumped-up charges, and to condemn him for a further long term of imprisonment which would no doubt have endangered his life—killed him—unless we released some acknowledged, and indeed quite justly condemned, Soviet spies.
We all know that espionage exists and that spies are sometimes exchanged, but this particular deal—and here I think I share the view expressed by the noble Lord, Lord Carrington—really leaves a rather nasty taste in the mouth, even given the facts that the Krogers have served a quite substantial part of their sentence, and that there are, so to speak, certain fringe benefits involved in the deal as a whole. I am afraid I can only say, speaking personally, that I greatly fear that it may lead to trouble in the future. It is said that the deal will improve our relations with the Soviet Union. My Lords, I wonder. The sad fact is that we are dealing, not with the splendid Russian people, but with a soulless regime for whom friendly gestures have absolutely no meaning.
4.15 p.m.
LORD TREVELYAN: My Lords, having had some experience of these matters in the Soviet Union myself, I hope I am not out of order in saying a few words. First, I think we certainly have to be very sure of our ground before we take a decision which will break a man's life and health.

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I should like to ask the noble Lord, Lord Chalfont, whether he considers that the presentation of the case in these few words is roughly in accordance with the facts. There is, as he said, a strong humanitarian aspect involved. The arguments against making the exchange are really two. First, we are giving way after a long battle. That, of course, is to some extent true. One does not make a bargain of this kind without giving way on some point. I think we shall all agree that the British Government were quite right in refusing this exchange five years ago; that was very different. But now the Krogers have served a very substantial part of their sentence and we have a much greater humanitarian interest involved on the other side.
The second point is whether this matter will affect the position of other visitors to the Soviet Union. I believe, and I think others also who have served in the Soviet Union would think, that this matter will not affect their position. There have lately been many precedents for exchanges which have set a pattern, whether we like it or not—French, American, German and British. These exchanges were, I believe, mostly exchanges of spies. Brooke was, I believe, never a spy; but he stated in 1965 that he was the courier for an anti-Soviet organisation, which publicly confirmed it. This would be regarded by the Russians as something worse than spying, so that he would be regarded by them as being in a particular category—
Lord SHACKLETON: My Lords, may I interrupt the noble Lord? I am sorry to do so, but our Rules with regard to Statements are in fact that only questions ought to be asked, although the practice has grown up that particularly the representatives on the Front Benches are allowed to comment. I am very sorry to intervene because I know that the noble Lord has great knowledge of this subject, but I would ask him to put his remarks in the form of a question. It is very clear that we ought not to debate these matters, and I am sure that the noble Lord will understand that.
LORD TREVELYAN: My Lords, I must apologise. I had said that I should like to know whether what I said was regarded as a fair representation of the facts. I would only add, on the par-
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ticular question of a new charge, that obviously we cannot comment, but it is prima facie improbable. My only point is to stress my view that one cannot definitely say that the position of the normal tourist in the Soviet Union has been made any worse than it was so far by the Government's agreement to the exchange, however distasteful it may be to us. May I therefore ask whether, although it was clearly a difficult decision, it was not on balance the right one?
4.19 p.m.
LORD CHALFONT: My Lords, I wonder whether I might answer some of the points raised so far. First of all, let me say how grateful I am to the three noble Lords who have spoken so far for their restraint and for the constructive way in which they have treated what is clearly a very controversial matter. We know that there are arguments on both sides here. The choice was a difficult one. We believe we have made the right one, and I am most grateful for the indulgence and sympathy shown by the noble Lords who have spoken so far.
I recognise the peculiar interest of the noble Lord the Leader of the Opposition, particularly, in the case of the K"ogers. As to his one question about consular access, I can go no further because of the confidential nature of all the exchanges that went on with the Soviet Union (for reasons with which the noble Lord will be familiar) than to say that we are satisfied with the nature of the assurances that we have received about future consular access.
The noble Lord, Lord Gladwyn, was equally statesmanlike in his approach to this subject. I would simply make one comment for the record and to clear any misunderstanding there may be from what he has said. When one uses the words "trumped up" and "bogus charges", I would point out than; those were the words of the noble Lord, Lord Gladwyn, and not mine. All we know about the charges that were to be laid against Mr. Brooke—the extra charges that we were told about on April 29—is that they involved preparation for espionage while under detention.
LORD GLADWYN: My Lords, may I then ask why he was not charged on that basis in the first instance?
LORD CHALFONT: Because he was not then in detention, my Lords. We can only find out the true facts from Mr. Brooke, and we shall do so, but the extra charges were believed to be based upon a charge that he was preparing for espionage while he was under detention serving a sentence on his first conviction. I leave noble Lords to form their own conclusions about it but I would say that I did not use the words "trumped up" or "bogus charges".
The noble Lord, Lord Trevelyan, who I think succeeded in framing a very constructive statement, at least theoretically, in the form of a question, has unrivalled experience of these matters and of Soviet matters generally. I wish to make only one comment on what he has said, which is to confirm that the humanitarian aspect of this was a strong one. Mr. Brooke has been a sick man while he has been under detention and I think any people who saw his appearance on television to-day would realise that they were looking at a man who had been under considerable mental and physical strain. It was on these humanitarian grounds, as well as the others that I have mentioned, that Her Majesty's Government made this decision.
LORD CONESFORD: My Lords, may I ask one question? Why is it that Polish consular officials are paying these visits? Are Her Majesty's Government now saying that the Krogers are Polish citizens? I ask the question because the Press has hitherto said (and I thought it was the contention of Her Majesty's Government) that they were United States citizens.
LORD CHALFONT: My Lords, Her Majesty's Government have always regarded the Krogers as United States citizens. The request for access by the Polish consular officials has of course been the subject of consultation between us and the United States authorities, and the latter have made it clear to us that they regard the handling of the Krogers as being entirely a matter for us to decide.
THE EARL OF SELKIRK: My Lords, the noble Lord said that he was moderately satisfied with the consular arrangements: can he say whether any arrangements have been made about the first time when a consular official can approach anyone who has been arrested?
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Is it four months before he can see a Consul—that is, 120 days? The most important thing when a man gets into difficulties is to see an adviser as soon as possible. Has any progress been made in that direction?
LORD CHALFONT: My Lords, no progress on that particular point has been made in the context of these discussions and arrangements. I will certainly undertake to look into the point. My understanding is that whenever a citizen is under detention in the Soviet Union the usage is that consular visits may be made at intervals of not longer than four months. But I will undertake to look further into it. May I say, again for the official record, that I did not say I was "moderately satisfied" about the future prospects of consular access: I said that I was satisfied, and Her Majesty's Government are satisfied.
LORD GRENFELL: My Lords, would the noble Lord and the House not agree that an appeal should go out from this House to the Press and the television authorities to allow a peaceful time for Mr. and Mrs. Brooke in order that they may now take up their married life together again?
LORD CHALFONT: My Lords, I have great sympathy with the noble Lord in making that intervention. He may have noticed that in the interview at the airport with the Press, Mrs. Brooke particularly said, "I hope you will now allow us to go away in peace". I have great sympathy with that.
LORD CITRINE: My Lords, may I ask whether the noble Lord is in a position to tell us whether any undertaking has been required from Mr. Brooke that he will not reveal anything of the conditions under which his sentence has been served?
LORD CHALFONT: My Lords, if the noble Lord means have we imposed upon Mr. Brooke any such undertaking, the answer is "No". Whether anyone else has tried to impose such an undertaking upon him I do not yet know; but that of course we shall discover.
LORD CITRINE: My Lords, anyone at all familiar with the happenings in Soviet Russia knows that the Soviet Union can easily bring such pressure to

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bear upon individuals within their control as to require undertakings of the kind I have mentioned.
LORD CHALFONT: My Lords, happily Mr. Brooke is now back in this country, where such pressures are unknown.
LORD SNOW: My Lords, may I ask my noble friend whether he realises that many noble Lords feel that the Government have acted with extreme judgment in a very difficult situation?
LORD CHALFONT: My Lords, I am most grateful to my noble friend for that comment.
LORD LEATHERLAND: My Lords, can my noble friend tell me what will happen in such an event as this: if Mr. Brooke is approached by a newspaper with an offer of many thousands of pounds for his story, will the Government ask Mr. Brooke to give prior consideration to the Government in anything he discloses?
LORD CHALFONT: My Lords, that is one of those easy questions to answer because it is a hypothetical one and I can say that I will not answer it. However I would point out that Mr. Brooke, now that he is back in this country, is a free man.
THE DUKE OF ATHOLL: My Lords, can the noble Lord, Lord Chalfont, say how much of their sentences Mr. Lorraine and the other young man have to serve, and how sentences for drug-running in Russia compare with those one might expect to receive for similar offences in this country?
LORD CHALFONT: My Lords, I think it would be dangerous for me to make any kind of comparison. I believe that, normally speaking, this kind of sentence tends to be more severe in the Soviet Union than in this country, although I am not making any kind of value judgment on these particular cases—or indeed any kind of legal judgment. So far as the amount of time that they have to serve is concerned, I think I had better check the facts and let the noble Duke know, but my recollection is that they were sentenced to something like four and four and a half years respectively, and that was in 1968. But I will confirm that and let the noble Duke know.

DIVORCE REFORM BILL
4.29 p.m.
Report stage resumed.
VISCOUNT BARRINGTON: My Lords, I hope I am not out of order in asking to make a brief comment on the Report stage of this Bill. I wish to do so as I have not yet spoken, and I did speak during the Committee stage. I want only to refer to two remarks made by the noble Baroness, Lady Gaitskell, and the noble Baroness, Lady Birk, with both of which I agree—with qualifications. The noble Baroness, Lady Gaitskell, particularly mentioned criminals; the noble Baroness, Lady Birk, said that the object of this Bill was to clean up divorce. I entirely agree with her, if that means to clarify i:, and I suspect that in this Report stage the purpose of the Amendment is to clarify what this particular clause means. That is why I supported an Amendment of this kind at the Committee stage, and nothing I have yet heard makes me disinclined to support it now.
The noble Baroness, Lady Gaitskell, put forward a point of view with which I entirely agree, although I am no: sure how practical it is: that criminals would be well advised to give up crime as a profession before they marry. Would she apply that also to actors and artists? I feel there is a good case to be made out for both those professions, and for saying that an actor should be wedded to his art and not to a wife. But we have to face the fact that criminals do not always give up crime before they marry and that actors and actresses do marry. Sometimes they change their marriages with unpleasant frequency; sometimes, as in the case of Dame Sybil Thorndyke, the marriage goes on.
I think that one point raised by Lord Cork and Orrery's Amendment is this. If an actor married to an actress, or even to somebody in some other profession, goes off, quite with the permission of his wife, on some not disreputable mission, say, representing the British theatre in some advanced play or unadvanced play, Shakespeare even, I do not say for five years—let us suppose it is for only one year—does that year count, even though the actor and his wife had been on the best possible terms before? I do not

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want to make this a question of sex war, or to attack actors or criminals as guilty parties, as the noble Baroness seemed in danger of doing, but I do feel we need to be quite clear on this point. As I was accused by the noble Earl, Lord Cork and Orrery, of raising only frivolous examples of astronauts or traffic blocks on the motorway, I would seriously put this for the House to consider as an example of what the result of the Bill will be with or without the Amendment.
BARONESS GAITSKELL: My Lords, I do not wish to make another speech. I simply wish to say to the noble Lord who has just sat down—
SEVERAL NOBLE LORDS: Order, order!
BARONESS GAITSKELL: My Lords, I apologise. With the permission of the House, I simply wish to say that the noble Lord accused me of saying something I did not say. That is all.
VISCOUNT BARRINGTON: My Lords, may I apologise to the noble Baroness if I did that. I certainly did not mean to accuse her of anything. I thought she was implying that criminals should think twice before they marry.
LORD SILKIN: My Lords, the real issue between us is a fairly simple one. It is, are we to treat an involuntary separation as being such a separation as to justify the assumption, as it does under paragraph (e) of Clause 2 (1), that the marriage has broken down, whether in fact it has or not. What we are saying is that once two people have been separated quite involuntarily, it is at the discretion of either party to say, "The marriage has broken down and I want a divorce." I think that is utterly wrong, and it is not what most of us intended when we supported this Bill and the particular provision in paragraph (e). While I am not sure whether the Amendment of the noble Earl is satisfactory—I should be surprised if it were—nevertheless I do think that something of that sort ought to be written into the Bill, to make it quite clear that when we talk of separation for five years we do not mean an involuntary separation brought about by imprisonment or serving abroad or any other circumstances of that kind. I
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would only say to the noble Baroness, Lady Summerskill, who made a very good speech, as usual, that this does apply to husbands as well as to wives; husbands sometimes are sent to prison for more than five years as well as wives, and the same would apply to them.
LORD CHORLEY: My Lords, I am afraid that I cannot agree with my noble friend, Lord Silkin. Obviously, unless the marriage has completely broken down on one side there will not be a petition for divorce, and therefore it is quite clear that on one side it has broken down. On the other side, of course, the problem in cases of this sort has always been the fact that the prospective respondent, either for reasons of revengeful feelings or in other cases for reasons of religious conviction, is standing out against the idea of a divorce. The fact that there has been a long period of separation is perfectly clear in all these cases, and what we are really trying to do is to deal with the case where, either for the purposes of revenge, which the noble Lord, Lord Silkin, has frequently underlined in this type of argument, or for reasons of religious conviction, the other party—the prospective respondent—is not prepared to agree to the divorce.
It seems to me that we are not getting anywhere at all by just adding an extra year, or whatever it may be; it is simply going back to this idea of the matrimonial offence, which keeps breaking out in unexpected places during these discussions. In effect, you are saying that, although it is perfectly clear that one of these parties is so satisfied that the marriage has gone that he or she is bringing a petition you are going to keep them together, in theory—because quite obviously you are not going to do it in practice—for another extra period simply to satisfy revengeful feeling or because of religious conviction. It seems to me it boils down to this, and it is really just sentimental nonsense to insist on having an Amendment of this kind.
The sort of argument one gets into is well exemplified by the speech of the noble Lord, Lord Sandford. Are we going to waste all this money that we spend on social workers in attempting to keep a marriage going while somebody is in prison? Of course not. It is right and proper that it should be done; and in many cases the effort will succeed and

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it will be money well spent. But surely in cases of the kind we are discussing the money will have been lost, because the petitioner whom the social workers have been trying to keep in touch with the other spouse would not bring the petition. In a case like this you write off the money that has been spent and the effort that has been made and recognise that it is one of the cases where the attempt at reconciliation, a very proper and praiseworthy attempt, has failed. I cannot myself see that any real case has been made out for this Amendment.
LORD DONALDSON OF KINGSBRIDGE: My Lords, I think this Amendment may be a bad thing for prisoners, and I am particularly interested in this aspect. The marriages of men sent to prison for any length of time are at very high risk anyway. I think the noble Lord, Lord Sandford, painted a rosy picture of society's frantic action to help them. A little is done here and there, but I think it is a great deal less than should be done. What I am worried about here is that if a marriage is pretty rocky anyway, and the man gets seven years, though the probation officer and everyone else do their best to keep the parties together, the wife's friend is going to say to her, "Look here, you had better give notice straight away. Otherwise, if you pack up after two years you will have lost two years of your five-year period, and you will have him hanging around for two years after he comes out." This is a difficult situation. I do not think it applies to a man in the Services but it applies strongly to a man—or a woman—in prison. I am inclined to agree with the noble Lord, Lord Chorley. This is the kind of Amendment which is not necessary, although one can see a possible reason for it. But in this particular case I think it will have sufficient bad effect for me to be inclined to oppose it.
LORD DENNING: My Lords, may I ask for some perspective in this Statute? The fundamental point is that for a divorce to be granted the marriage must have irretrievably broken down. The five-year separation is only evidence of it, and the case which has been put before us, of the person in prison, is a very special case. It can be met perfectly well when it is remembered that the five-year separation is only evidence and that
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the judge, when he comes to consider the whole case, will decide whether or not the marriage has irretrievably broken down. If it has, let the principle of this Act apply. I would be against the Amendment.
LORD DENHAM: My Lords, may I ask one very short question, purely for guidance? Are the five indications of breakdown of marriage referred to in this subsection intended to be taken as indications in that they are causes which one may assume would lead to the breakdown of marriage; or are they to be taken as indications in that they are results from which one may assume the marriage had already broken down? If they are indications in that they are results of breakdown, this Amendment is obviously necessary, because the five years living apart as a result of breakdown must begin at the time of the breakdown.
4.40 p.m.
LORD STOW HILL: My Lords may I in the first place express the hope that your Lordships will believe that I did my best to comply with the undertaking which I gave on the Committee stage of this Bill, that I would most carefully re-examine the problems which had been thrown up in our discussions at that stage. I most carefully re-examined the whole subject, together with the expert advisers whose assistance I have previously had and I was thoroughly convinced that the Bill as presented is in the right form and that the Amendments suggested, including the noble Earl's Amendment, ought not to be accepted. I hope that your Lordships will accept that assurance.
May I now answer the question just put? What the Bill does is to pose certain factual situations upon proof of which it shall be assumed, unless the evidence as a whole points to a contrary conclusion, that the marriage has broken down. That is what the Bill does. May I make one or two general observations? First, supposing somebody comes and says that A and B have been apart for five years—not for one, or two, or three years, but for five years—and that A has approached the divorce court to ask for a decree of divorce, I should have thought that any reasonable person would say: "Well, if there is one thing

1115
which is patently obvious it is that the marriage between A and B has broken down." He will not start asking why they were apart for five years. He will say that once two people live apart for five years it is not at all unlikely that one will fall out of love with the other and want to be free from that other person. That is, unfortunately, the ordinary case. I should have thought that most people would rarely bother in the slightest as to why they were apart for five years; the thing that matters is that they were apart for that five years. That is the situation which the Bill acknowledges and recognises.
May I add this? It really is a fundamental misconception for the noble Earl who moved this Amendment to put the matter in this way: aye or nay, does five years' separation spell breakdown? With respect, that is not the question. The question is: does living apart for five years, followed by an application by one of the parties to the divorce court for a decree of divorce—do those two things conjoined together—spell the breakdown of a marriage? I should have thought that in the ordinary course of affairs it is almost impossible to say that when these two situations are conjoined marriage has not come to an end. Even when they are conjoined, there is still the provision in Clause 2 (3) requiring the judge nevertheless to look at all the circumstances; and if those circumstances convince him that, in spite of the conjunction of those two most telling situations, the marriage has not broken down, he has still to refuse a divorce. That is the issue. I should have thought that one has only to state the question in that form to make it fairly obvious that it does not really matter why the spouses were apart; the question is whether or not they were apart, and whether their separation led one of the two to approach the divorce court and ask for a decree.
I make this further comment. What does the pronouncement of a decree do? It does not break up the marriage. All it does is to recognise, formally and officially by the decree of the court, that the marriage has obviously broken down. What happens, unfortunately, is that there is a separation, one party gradually comes to the conclusion that he or she wishes for a divorce and then, after five years, asks for it; and all the court does
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when it pronounces a decree is to recognise that that is the pre-existing situation which has led to the breakdown of the marriage.
May I make this further observation? When one is legislating, one can pass only legislation which fits most cases. Cases differ so infinitely in their circumstances that it is quite impossible, without unreasonable complication, to devise a form of words that will cater for each and every separate unusual case. The ordinary case is that in which the separation takes place because the two parties cannot get on together. It is impossible numerically to compute cases of compulsory separation but I should have thought it was the rare case. It is not the ordinary case. The ordinary case is the one that is reflected in the letters which I am sure noble Lords must all have received, of people who have been apart for years and want the court formally to recognise the fact that their marriage has long since terminated.
But may I ask your Lordships to look at the situation of compulsory separation? My noble friend Lady Gaitskell dealt with the situation of the Services. It is only in the rarest case that a soldier or sailor has to be away for five years. That is a tremendously long time. A situation of that sort befalls people in the rarest of circumstances. I cannot follow the argument of the noble and learned Viscount, who says that we should disregard that because the Army or Service authorities may at some time abandon that most human system which they at present operate in curtailing the separation of the husband and wife, and adopt a much less human system; or that there may be another world war which may involve separation for five years. I say that we should not adjust our judgment by reference to that sort of situation.
I have taken some trouble to ascertain what the position is in all possible spheres of separation. At the Foreign Office service abroad is up to four years, but the man usually has his family with him. At frequent intervals of time, which differ according to the circumstances, he has home leave. Then I had inquiries made from one or two of the great companies, which I need not mention by name, having employees overseas. The general tour of duty abroad is for a maximum of two years, and they do their level best to

1117
get their employees back within that time to visit their families if the families are not with them. I should have thought that anybody who has had any experience of the Services knows perfectly well that a commanding officer who has reason to think that the marriage of another rank or an officer under his command is going astray, does his level best to see that that other rank or officer gets compassionate leave to try to straighten things out.
I respectfully submit that in this matter it cannot be too strongly emphasised that what happens is not that the marriage is broken up by the making of the decree, but that the marriage breaks up because of the two parties; they themselves fall out of love with each other. That is a situation no doubt eventuating as a result of the separation. I do not wish to repeat myself, but the divorce court does nothing to bring that separation about; it simply recognises it when it has taken place. Some noble Lords have expressed considerable dislike of the idea that compulsory separation should count. It has been part of our law ever since 1937. Those noble Lords seem to forget that since Sir Alan Herbert introduced the measure which became the Matrimonial Causes Act 1937, insanity and the requirement of care and treatment for a period of five years has been by itself a ground for divorce. That applies in the case of compulsory separation where either the unfortunate husband or wife is stricken by insanity and is compulsorily put away from their spouse. It is a most clear and obvious case.
So this is no change in principle. It is following a principle that we have recognised, without any complaint, for years. I may say that such complaint as there has been of that provision, which is now to be found in Section 1 of the Matrimonial Causes Act 1965, is in a contrary direction. It is that the existing provision is too restrictive. For example, the case has arisen where it could not be proved that the spouse was incurably insane because medical evidence showed that he was rather subnormal and could not be said to be insane. Or it has been criticised on the ground that it cannot always be proved that the individual has needed care and treatment for five years. Sometimes the process to which he has been subjected is a process of training rather than of care and treatment, so the peti-
1118
tion has failed on that ground. What has been said over and over again is that that existing provision of thirty years' standing is not wide enough. There is nothing new in this; we are simply following an existing path which has been trodden over and over again and which is thought now to be too narrowly bounded.
I ask your Lordships to say that it would be very unfortunate if this Amendment were accepted. It would go far to wrecking this provision. Many noble Lords have spoken of the prisoner. I have had some experience and have talked with and tried to understand the thinking of dozens and dozens of prisoners up and down the country in personal contact with them. What is the position? To begin with, you normally get one-third off your sentence for good conduct; and, since the Act we passed in 1967, in addition to that normal good conduct remission of one-third, i: you behave yourself you now qualify for a further one-third off your sentence, at the discretion of the Parole Board. So if you are a well-conducted prisoner, with any luck you will serve one-third of your sentence. The only prisoner who runs a risk of being separated from his family for five years is the prisoner who is serving a very long sentence indeed. If he gets two-thirds off, I suppose he has to be sentenced to 15 years imprisonment, which is a very rare sentence. Therefore, they are very rare cases one is dealing with.
I hate to talk about my own experience, but I must do so for a moment. If you have a man who has, unhappily, been sentenced to 12 months' imprisonment, he can get one-third off, and now one hopes that he may get another third off. For a man to be away from his family for four months is a terrible thing. It is a tragedy for him, and one's heart goes out to him. Anybody who has had anything to do with that sort of situation knows that the one way of enabling a man like that to pull himself together, to get on the right lines again, is to have the hope of coming out to a wife and family. That is the ordinary case.
What is the way to deal with that kind of case? The way the noble Lord, Lord Sandford, described: do everything you conceivably can through the prison administration, who are most helpful

1119
and eager to co-operate in this matter, to keep him in touch with his family. That is the right approach in a civilised society. You should have better interview rooms; get away from the old grill system; the conversations out of earshot; circumstances in which it will not be frightening for the children to come; home leave in due course when the prisoner qualifies for that; ample facilities for correspondence; and the best possible welfare services. That is the right answer for a civilised community to give to the problem of the unfortunate man in prison who is anxious because he is separated from his family.
I should have thought it was common experience that the person who is really anxious is the man who has to be away for four months, six months, or nine months. When a man gets into the sort of state in which he is liable to get 15 years' imprisonment, very often his mode of life has not been such as to fit into a normal family existence. It would be grossly unfair to say that the people who receive those sentences are not concerned with their families, but it is not unfair to say that they are less frequent when you are talking about that sort of prisoner than if you are talking about a prisoner doing 12 months, or even up to three years.
That is the right approach; do your level best to keep them in touch. But in spite of every possible endeavour, and whatever the divorce courts say, when the two people are apart, especially when there is all the indignity and stigma of a prison sentence, marriages are under strain. It is up to the prison administration to do their best to alleviate that strain, but the divorce court cannot affect it one way or the other. Therefore, I should have thought that the argument based on the prisoners' situation cannot carry much weight.
I do not wish to make an invidious remark, but when one talks about compulsory situations, it really is not obligatory on anybody to commit a crime in this country—far less obligatory upon him to commit, or to go on committing crimes which will result in his being sent to prison for 15 years, or that sort of sentence. He need not be sent to prison for 12 months if he behaves himself, as the vast majority of his fellow citizens do.
1120
So it is really compulsory only in an indirect sense. Equally, if you accept an appointment overseas for five years you are not bound to serve it. If for reasons of promotion or reward, you think it appropriate your wife may agree to your doing so. So it is really a misnomer to call these separations in any real, factual sense compulsory.
Suppose one did accept the Amendment. I thought, if I may respectfully say so, that the right reverend Prelate the Bishop of Exeter put his finger directly on the point: that one is anxious to keep marriages together and not to let them collapse. Take two wives—if I may take wives instead of husbands. The separation takes place; they have been on bad terms and for one reason or another they part. She may go to stay with her mother for a holiday and not come back, or whatever the situation may be in different cases. One wife will say to herself, "I hope that nevertheless we shall be able to patch this up and build this relationship up again." There may be children involved, and she will fight hard to try to keep that marriage in being. She will not give up hope perhaps for months, perhaps for years, and perhaps for many years, and only at the end, after the lapse of many years, will she decide that the matter is hopeless.
If this Amendment is accepted the time will run only after those many years, when that unfortunate, conscientious woman has given up hope. Another woman, when a rift comes, perhaps no more severe than the rift in the former case which I mentioned, will just throw her hands up and say, "The whole thing is over; I am not going to bother". In her case she is at a great advantage. She can get her decree, if she wants it, five years from that moment. Therefore, I should have thought that those who propose this Amendment would be achieving a result precisely the opposite of the sort of result we all have in mind; they are making marriage more brittle, not less, and they are invalidating it.
I go further. I say that if the Amendment is carried, one is playing right into the hands of the less scrupulous wife, or the less scrupulous husband, whichever is the petitioner. If a wife goes to a solicitor, and the solicitor says, "Your five years dates from the time when you decided you would separate" the less

1121
scrupulous petitioner—I believe she is sometimes called the more sophisticated—would say, "I made up my mind as soon as we parted". The more honest wife would try to really think when it was she made up her mind. So it would be playing into the hands of the less honest petitioner, and would disadvantage the more honest.
Then there is another and I should have thought a fundamental objection. As has been pointed out, this Bill is plastered over with machinery to try to promote reconciliation. If one looks at Clause 3 (5), in calculating the five years you disregard any six months that they have been together during that five years. A solicitor can say to a woman when five years have really gone, "Why do you not make one more attempt to join up with your husband?" and she can join up with her husband, say for a week or a fortnight, to see whether they can come together again. It may be unsuccessful. As the Bill is at present drafted that joinder, if it is not for over six months, will not count. If this Amendment is carried, I suppose the five years dates from the time when the wife has unsuccessfully tried to reintegrate the marriage by going back to her husband for a limited time. So the whole of Clause 3, I suppose, would have to be jettisoned. The whole of the system of reconciliation on which this Bill is founded would be completely aborted and would have to be cancelled.
For all those reasons, I greatly hope that your Lordships will not accept this Amendment. It would mean that heaps and heaps of people, who have been waiting and waiting, would have to wait for another five years. How on earth can you tell when people make up their minds? Do they have to make up their minds and never change? Supposing they make up their minds after three years of separation—have they got to stay of the same mind? Supposing they change and then again make up their minds? I suppose the five years has to run from the second period. For all those reasons, I very greatly hope that your Lordships will not accept this Amendment.
5.0 p.m.
LORD HODSON: My Lords, as one would expect of him, the noble Lord, Lord Stow Hill, has given a fair and
1122
accurate statement of the problem, which is simply this. Does anything else matter except the desire of "A" for a divorce, and the fact of separation? The noble Lord says that nothing matters, and that is the issue between us. I know from my conversations with him, and from what he has said in this House, that he and those behind him who are helping him in this matter have given the most anxious consideration to some form of definition of "living apart".
It was pointed out, on one of the occasions when this matter was debated in the House, by some of those such as the noble Lord, Lord Goodman, who supports my noble friend Lord Stow Hill, that it really is no good at all trying to define "living apart "—I think the noble Lord, Lord Conesford, took the same view—and that any attempt to define "living apart" is almost impossible. I shall not read out the relevant provision in the Bill, but I think your Lordships will agree that it is a pretty hopeless definition. It says that a husband and wife are living apart if they are not living in the same household. But of course they can live apart in the same household. I know of one couple who have lived apart in the same household for over ten years. I believe they have never spoken to one another all that time, although they drive about in the same car and live in the same household. But according to this Bill they would not be living apart. However, that is rather by the way.
I should like to mention what the right reverend Prelate the Bishop of Exeter said, about the difficulty of starting the period of five years. I agree with him that, if one had to look at the matter from the same point of view as he does, and one started off by saying, "I am never going to live with that man again", it would be a most futile situation. But the judges look at this question of living apart without definition, and I think my noble and learned friend Lord Denning will agree with me—he has already made remarks to this effect—that you can leave the matter to the judges without definition. Over the years, the judges have had to deal with this question of living apart not only in connection with matrimonial disputes, but also in revenue case;. The question of whether a man is living with his wife is irrelevant. It does not mean

1123
living with his wife factually; I might almost say it means living with his wife emotionally. They are living together in law if they are separated by circumstances, whether a person is serving abroad and whether a person is insane.
I do not understand the illustration which my noble friend Lord Stow Hill gave about insanity. What has that to do with this problem at all? Some of us may be sincerely shocked that insanity is a ground for divorce. Why should mental illness be a ground for divorce any more than any other illness? Ideally I should have thought insanity would not be a good ground for divorce, but, as the right reverend Prelate pointed out, with the hardness of our hearts these cases have to be decided and relief has to be given by law to people who are in difficult positions.
I sincerely wish to emphasise the cleavage which exists between those who take opposite views on this matter. There are those who take the factual view, like the noble Baroness, Lady Birk, who said, "If they are apart, then they are apart. What does it matter why they are apart? If you say that you want a divorce, then you want a divorce. Of course the marriage has broken down, and there is no means of denying it."
Some of us sought to support an Amendment to Clause 2 (3), which puts the burden on the one who opposes the divorce to say that the marriage has not broken down. We sought to say that it should be proved that the marriage had broken down. But the noble Lord, Lord Henley, and others, pointed out that this only brings back the wretched idea of an inquest, which would be quite intolerable. So the position now is that you do not have to prove breakdown at all. "Breakdown" is only one of those words which are tossed about. You have to prove that you have had five years' separation, and you have to say that you want a divorce. But of course it has broken down, if you want a divorce. That is all you have to do. In my submission, it is really essential that this question of living apart should be decided on the basis that the living apart means that there is a real division, a real cleavage, between husband and wife; not a factual separation, whether voluntary or involuntary.
1124
I am quite sure that the noble Earl, Lord Cork and Orrery, is not particularly wedded to this form of words. I, for my part, think that he has been exceedingly clever in producing a form of words which will get on its legs at all. I should prefer to leave the matter without the present definition, and to ask—I hope not in vain—my noble friend. Lord Stow Hill, who has been so good in trying to meet problems of this kind which have been put before him, to find a definition which is less harsh than leaving the matter as if the intention is quite irrelevant; because I am quite sure he takes the view that the intention behind the separation is quite relevant. I support this Amendment.
5.6 p.m.
THE EARL OF CORK AND ORRERY: My Lords, may I begin by attempting to deal with one or two misapprehensions? I begin with one which was voiced by one or two noble Lords, who mentioned the length of what I choose to call period X—the preliminary voluntary or involuntary separation which has nothing to do with the breakdown of marriage. The noble Lord, Lord Stow Hill, is still wedded to the case of the long-term prisoner. In attempting to advance the case for this Amendment, I think I made no reference to the length of service, the length of imprisonment or anything else, and the principle which animates this Amendment applies equally, whether the length of preliminary separation is 15 years or 15 days.
My contention is simply that it ought not to count in the running period of five years which would qualify for divorce. Therefore, when the noble Baroness, Lady Gaitskell, supported by the noble Lord, Lord Stow Hill, quotes figures from the Ministry of Defence as to what is likely to be the length of overseas service for a soldier, sailor or airman, then my answer, as politely as I can, is to say that I simply do not care. All I am interested in is whether they are taken away by one means or another, or whether they are separated because they are fed up with the company of each other. That is all.
Several noble Lords have referred to the speech of the right reverend Prelate the Bishop of Exeter, who made almost the only cogent argument in opposition

1125
to the Amendment, although it is something of an argument in a corner, a rather private field, which is not a very widely represented one in this situation. I refer to the possibility that, if the Amendment came into force, a wife who was otherwise devoted to her husband—loyal, attending to him, visiting him and writing to him—might be discouraged from doing that by her solicitor. He might say, "Look here, if you go on doing this you will find it very difficult to prove—if you want to prove it—that you have been living apart all this time, and that the marriage has broken down."
I do not think the right reverend Prelate really meant that that would alter the evidence of living apart. The noble and learned Viscount, Lord Dilhorne, took him up on that, so I think we can drop that one. But such an event might scotch the idea that the marriage had broken down, if we brought in the Amendment. However, I think it is very unlikely to be a very important factor because, after all, as the noble Lord, Lord Sandford, and others have pointed out, there are very large and powerful factors which are operating the other way. If it is possible for a solicitor to convince a wife, who is still trying to do the right thing by her husband, that she would do much better to give up and reconcile herself to the idea of getting a divorce in five years' time, then I can say that that combination of solicitor and wife would be a pretty rare one and ought not to weigh too heavily in this argument.
May I say straight away that of course I accept without the slightest reservation the assurance of the noble Lord, 'Lord Stow Hill—and, indeed, I accepted it almost in advance—that he has done everything he can to reconsider this matter and, if possible, to come up with a new form of clause; and I quite understand that he has been unable to do so. But, if I may turn to the noble Lord's own remarks, I venture to say, with the greatest diffidence and respect, that he has introduced one or two irrelevancies into these arguments. I have already referred to one which is irrelevant to me, at least, and that is the length of service—such matters as he took up from the noble Baroness, Lady Gaitskell.
But he has also said that a period of attempted reconciliation will invalidate
1126
the preceding five years—that is bow I wrote it down. I am not quite sure whether I got it right, but I thins the argument is this. Suppose at the end of a period of five years, or whatever it may be, the potential respondent is suddenly persuaded to take the other party back again for bed and board for a period of six months, and then finds it is a failure, that attempt would in itself invalidate or cancel all the preceding 4½ years, or whatever it might be, and the period would have to start again. But that is not so. If your Lordships look at the Amendment, you will see that it says that in calculating the period of at least five years
"regard shall not be had to any period during which the parties to the marriage lived apart prior to the time when one party decked on account of matrimonial difficulties to live separately from the other".
If they should decide later to come together again for a short time, and that should fail, it makes no difference, because that clearly it is not a time prior to the time when they decided to live apart. So that has nothing whatever to dc with the argument. Once the time starts 10 run it runs on and nothing can stop it.
Then the noble Lord said—and I paraphrase him again—"Does not a five-year separation followed by a petition for divorce spell breakdown?". That, I think, is the key to the noble Lord's argument.
LORD STOW HILL: My Lords, it is not customary in your Lordships' House for anybody to speak twice, but the noble Lord will not perhaps mind my intervening to correct a misapprehension as to what I said. The kind of case I was taking was that of a wife who is undecided for five years but she is very much inclined to think that the marriage is at an end. She goes to her solicitor at the end of five years. Under the existing Bill he can say, "Go and try. Go and live with him for a fortnight and try to reconcile yourself". If the Amendment is carried, then if she does that the five years has to start from then.
THE EARL OF CORK AND ORRERY: My Lords, I thought I had made it clear—I tried hard to do so—that that is exactly what would not happen. The only period that is left out of account is the period earlier than that. I shall be exceedingly brief now; I am sure noble

1127
Lords want to press on. I will continue with the quotation that I was making from the noble Lord when he asked, "Does not a five-year separation followed by a petition for divorce spell breakdown?". He considers that it does. I say, "No, it may or it may not". That is the whole point of this Amendment: it is about nothing else. It may spell breakdown or it may not. If it spells breakdown, the marriage may have been broken down for a year or it may have been broken down for five years; but there is no knowing whatever that it has broken down within the terms of Clause 2 (1) (e), which is perfectly plain. That says that the marriage shall be said to have broken down—which is what this Bill is about—if the parties
"have lived apart for a continuous period of five years".
That is what we are trying to change by putting in this qualification—and I think it makes a great deal of difference. They must have lived apart on purpose. It is perfectly simple.
Several noble Lords—I will not identify them particularly—have said that there is a safeguard in Clause 2 (3) against this matter going wrong. I was at some pains to try, at any rate, to dispose of this safeguard in my earlier speech, but I must come back to it now, because I do not see that there is any discretion at all left to the judge. This subsection is perfectly plain. It says that unless the court—that is, the judge—is satisfied on all the evidence that the marriage has not broken down, it shall grant a decree. There is no discretion left to the judge to say, "The marriage has not broken down, and
therefore I will not grant a decree". If we had carried the Amendment which was proposed during the Committee stage, that would have been so, but it was not carried. Therefore, the judge has no discretion, and the Bill as it stands now says that if people live apart for five yeas and the judge is not satisfied that the marriage has not broken down then he shall give a decree. I and those of my noble and my noble and learned friends who support me in this matter say that that is wrong.
We do not say that this Amendment is necessarily the total answer, but it is a step towards it, and I think it is better than what we already have. The noble and learned Lord, Lord Hodson, is quite likely to be right in saying that we should do much better to take the definition out altogether. Let us, I suggest, take this first step of trying to insert this Amendment, and then if, for one reason or another, it is not entirely successful—if, that is to say, either your Lordships do not choose to accept it or, on the other hand, the noble Lord, Lord Stow Hill, has a better idea which he brings up at a later stage—then let us fall back on the big guns remaining in the background, in the shape of Amendment No. 5 in the names of the noble Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Hodson, and blow the whole thing to pieces on Third Reading. But in the meantime I think that I must insist upon this Amendment.
5.20 p.m.
On Question, Whether the said Amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 91.

CONTENTS

Aberdare, L.

Daventry, V.

Hodson, L.

Abinger, L.

Denham, L.

Ilford, L.

Ailwyn, L.

Derwent, L.

Lauderdale, E.

Auckland, L.

Devonport, V.

Leatherland, L.

Audley, Bs.

Dilhorne, V.

Longford, E.

Balerno, L.

Drumalbyn, L.

Lothian, M.

Barnby, L.

Dudley, L.

Mancroft, L.

Barrington, V.

Dundee, E.

Massereene and Ferrard, V.

Belstead, L.

Ebbisham, L.

Mersey, V.

Boston, L.

Effingham, E.

Milverton, L.

Bourne, L.

Emmet of Amberley, Bs.

Mowbray and Stourton, L.

Brooke of Cumnor, L.

Erroll of Hale, L.

Moyne, L.

Brooke of Ystradfellte, Bs.

Fortescue, E.

Nugent of Guildford, L.

Carnock, L.

Goschen, V.

Pearson, L.

Chester, L. Bp.

Gray, L.

Phillips, Bs.

Conesford, L.

Grenfell, L.

Rankeillour, L.

Cork and Orrery, E. [Teller.]

Gridley, L.

St. Albans, L. Bp.

St. Helens, L.

Silkin, L.

Swinton, E.

St. Oswald, L.

Stamp, L.

Terrington, L.

Sandford, L.

Strange of Knokin, Bs.

Wakefield of Kendal, L.

Sandys, L.

Strathclyde, L.

Winchester, L. Bp.

Selkirk, E.

Summerskill, Bs. [Teller.]

Wolverton, L.

Sempill, Ly.

NOT-CONTENTS

Addison, V.

Gaitskell, Bs.

Moyle, L.

Amulree, L.

Gardiner, L. (L. Chancellor)

Noel-Buxton, L.

Archibald, L.

Garnsworthy, L.

Platt, L.

Arwyn, L.

Geddes of Epsom, L.

Plummer, Bs.

Atholl, D.

Gifford, L.

Popplewell, L.

Aylestone, L.

Goodman, L.

Rathcavan, L.

Balogh, L.

Gowrie, E.

Robbins, L.

Beaumont of Whitley, L.

Greenway, L.

Royle, L.

Beswick, L.

Hawke, L.

Ruthven of Freeland, L. [Teller.]

Birk, Bs.

Henley, L.

Blyton, L.

Hill of Wivenhoe, L.

Sainsbury, L.

Bowles, L.

Hilton of Upton, L.

St. Davids, V.

Brockway, L.

Holford, L.

Shackleton, L. (L. Privy Seal)

Buckinghamshire, E.

Hughes, L.

Shepherd, L.

Burden, L.

Jackson of Burnley, L.

Snow, L.

Byers, L.

Jacques, L.

Sorensen, L.

Champion, L.

Jessel, L.

Stocks, Bs.

Chorley, L.

Kilbracken, L.

Stow Hill, L. [Teller.]

Citrine, L.

Killearn, L.

Strabolgi, L.

Cole, L.

Kings Norton, L.

Strang, L.

Crook, L.

Kirkwood, L.

Swanborough, Bs.

Crowther, L.

Lindgren, L.

Taylor of Mansfield, L.

Denning, L.

Llewelyn-Davies of Hastoe, Bs.

Thorneycroft, L.

Donaldson of Kingsbridge, L.

Lucas of Chilworth, L.

Truro, L. Bp.

Douglass of Cleveland, L.

Mais, L.

Wade, L.

Eccles, V.

Merrivale, L.

Walston, L.

Evans of Hungershall, L.

Meston, L.

Williamson, L.

Exeter, L. Bp.

Mitchison, L.

Willis, L.

Falkland, V.

Molson, L.

Wise, L.

Faringdon, L.

Morris of Borfh-y-Gest, L.

Wright of Ashton-under-Lyne, L.

Foot, L.

Morrison, L.

On Question, Motion agreed to

SOCIAL INSURANCE BENEFITS
5.27 p.m.
BARONESS PHILLIPS: My Lords, with permission I would repeat a Statement which my right honourable friend the Secretary of State for Social Services has made in another place on the White Paper on Social Insurance Benefits. The statement is as follows:—
"I have to-day laid before Parliament a White Paper setting out the Government's proposals for social insurance benefits in the new scheme of earnings-related social security.
"The Government have already, in 1966, introduced a substantial measure of earnings relationship into the provision for short-term benefits for the early months of sickness, unemployment and widowhood.
1130
"The changes now proposed for short-term benefits are thus limited to those required to adapt them to the new system of earnings-related contributions and long-term benefits. Stamped cards and flat-rate contributions will be abolished for all employees covered by P.A.Y.E. and the new contributions for them will be collected through the P.A.Y.E. system. The proposals with the financial implications, are set out in detail in the White Paper.
"The White Paper also describes the new deal for the long-term sick. Short-term sickness benefit under the new scheme will be payable for up to six months. Those who are still sick at the end of this period will be able to receive a new earnings related long-term sickness benefit—to be called invalidity pension. This benefit will replace the present flat-rate sickness benefit for those who are sick for more than six months. For those who are

1131
so severely handicapped that they need a great deal of help from other people there will also be available a new attendance allowance announced' in the earlier White Paper.
"As regards the industrial injuries scheme, the Government are still in consultation with both sides of industry on the consequential changes necessary in industrial injury benefit and industrial widows' pensions; no change is proposed in industrial disablement benefit. Subject to this, the proposals in today's White Paper, with those already announced in the earlier White Paper, National Superannuation and Social Insurance, complete the Government's plans for reconstructing the present national insurance scheme. The Government intend to introduce the necessary legislation in the next Session of Parliament."
LORD DRUMALBYN: My Lords, I should like to thank the noble Baroness for repeating this Statement. May I ask one or two questions about it? First, may I take it that the White Paper, as well as stating the benefits, will on this occasion also state the contributions and the cost involved? That seems to be specifically stated in regard to short-term benefits but not in regard to the others. The invalidity pension is something for which the Government have been pressed for a long time and we shall be very glad to see that. May I take it that industrial injuries are mentioned in the Statement because consultations are still going on? May I ask the noble Baroness whether this is the only matter on which consultations are still continuing? In particular, may I ask her whether consultations on the question of an occupational pension scheme and contracting out have yet been completed? I was under the impression that they were still going on, and I hope that this is so. Perhaps the noble Baroness can answer those points.
LORD WADE: My Lords, I should like to join in thanking the noble Baroness, Lady Phillips, for repeating the Statement. We shall of course have to study the White Paper. I welcome the proposal to abolish the stamping of cards; this was advocated by a Liberal Committee some years ago. May I ask a question about the handicapped? What
1132
form of benefit is proposed for them, apart from the attendance allowance? I have in mind those cases where the disability is so great that a person has not been able to earn, and therefore there are no earnings to which any payment could be related. Is any form of benefit intended for such cases?
BARONESS PHILLIPS: My Lords, I thank the two noble Lords who have put questions. I should prefer to give replies in writing to the factual questions, particularly those relating to consultations on the matters not mentioned specifically in the White Paper. As noble Lords will appreciate, we shall need to study this Paper very carefully. The actual proposals for legislation will come of course in the next Session, but I will see that both noble Lords receive replies to the questions which they have put this afternoon. In this White Paper we are considering particularly short-term benefits. The long-term benefits, to which I think the question posed by the noble Lord, Lord Wade, relates, were discussed in the earlier White Paper. But I will see that both the noble Lords who put questions receive replies.
LORD DRUMALBYN: My Lords, I think it regrettable that the noble Baroness is not in a position to answer the question about occupational pensions. This matter has been canvassed a good deal in the Press, and I think that the House would have liked to know the answer to that question. May I ask a question arising out of a remark by the noble Lord, Lord Wade? He said, if I understood him right, that the stamping of cards was to be completely abolished. But is that so? I understood the noble Baroness to say that it was being abolished for employees. Does this not mean that the stamping of cards will continue for the self-employed and the non-employed? If that is so does it mean that the present system, what might be called the "Newcastle" system, will have to be maintained and that the whole operation cannot be completely computerised? I have been under the impression that the whole thing was to be computerised. Is that not so?
BARONESS PHILLIPS: My Lords, I hope that the noble Lord, Lord Drumalbyn, will not press me on this matter. After all, it deals with a rather narrower issue than the very much wider

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issues in the White Paper. I can tell the noble Lord that consultations are still going on in connection with the second point that he raised, about occupational pensions. Regarding the abolition of the cards, I think that I must rest on the Statement. Stamped cards for flat-rate contributions will be abolished for all employees covered by P.A.Y.E. I think this may be interpreted as the noble Lord, Lord Drumalbyn, has interpreted it; that it does not apply to the self-employed.

DIVORCE REFORM BILL
5.34 p.m.
Report stage resumed.
LORD STOW HILL: My Lords, Amendments Nos. 7 and 8 are purely drafting, and consequential on the adoption by this House of the word "consents" instead of "does not object" in Clause 2 (1) (d). I beg to move.
Amendment moved—
Page 2, line 24, leave out ("section 2(1) (d) of this Act") and insert ("subsection (1) (d) of this section")—(Lord Stow Hill.)
LORD STOW HILL: My Lords, I beg to move Amendment No. 8.
Amendment moved—
Page 2, line 29, leave out ("if he wishes to oppose") and insert ("to indicate that he consents to").—(Lord Stow Hill.)

Clause 4 [Decree to be refused in certain circumstances]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 9:
Page 3, line 36, after ("divorce") insert ("or the ground stated in section 2 (1) (e)")
The noble and learned Viscount said: My Lords, I beg to move the Amendment standing in my name. This clause was closely examined in Committee and I do not intend to go over in any detail the ground then covered. But I should like to remind the House of the extent of the clause. As it stands at present, any respondent to any petition for divorce may invoke this clause. He can do it whether the facts on which the petition are based relate to adultery, cruelty or desertion; or indeed where there is a period of two years' separation with con-
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sent (the respondent is not likely to do it then; because he or she would not consent) and also where it is based on a five-year separation. So this clause may be brought into operation by a respondent over the whole field covered by Clause 2 (1). That could happen in respect of a very large number of petitions.
Secondly, every time a respondent takes action to bring this Clause into operation it means that the court will have to consider
"all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned",
and whether there will be "grave financial or other hardship," and whether it would be "wrong in all the circumstances to dissolve the marriage".
The noble Lord, Lord Henley, who was present in the Chamber a few moments ago, said a great deal during the Committee stage about a "mini inquisition". The point I want to make, and I do not think that the noble Lord, Lord Stow Hill, will contest it, i:; that this process may be invoked at the option of the respondent in any divorce petition. Then you are going to get that inquisition in every case. No matter how scandalous the adultery; how grave the cruelty; how long the desertion—nevertheless, a respondent, by invoking this clause, can at least postpone, and may prevent, the making of a decree nisi; I say "postpone", because there is bound to be delay in view of the investigation which will have to be made by the court. The respondent may be able to establish that the clause should operate and the petition be dismissed.
My Lords, the delay might be long and, with the clause as wide as it is, it seems to me that there is a not inconsiderable possibility of it being abused; that some angry respondent of either sex may invoke Clause 4 just out of spite, to hold up the making of a decree nisi. I do not think anyone wants that to happen. As I understood the discussion during the Committee stage, the real case for Clause 4 is in relation to divorces based on the facts stated in Clause 2 (1) (e); that is to say, a five-year separation. The other matters, surely, could be left to be dealt with after the decree nisi as they are now—that is questions of maintenance. In the other cases, surely

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there is no need and no case for saying, as I understand it, that the decree should be refused and the petition dismissed. The purport of this Amendment is to limit the operation of Clause 4 to cases in which the petition is founded on a five-year separation; that is Clause 2 (1) (e).
It was suggested to me that it should be limited to cases of that character where there was no other charge in the petition; where the charge, if you like, was not accompanied by a charge under paragraph (c) of desertion. I think it would be better—although I do not hold any strong views on it—to say that Clause 4 may be invoked when one of the grounds on which a divorce is given—even if there be other grounds—is Clause 4, because if we did not provide that, it seems to me that there is an appreciable risk that people will try to obtain a decree on the ground of desertion and fight that issue to avoid the possibility of the respondent, if proceeded against under Clause 2 (1) (e), invoking Clause 4. I think we want to guard against that. With the Clause in its present form, it gives opportunities to respondents—and some of them are not always very accommodating—to delay the granting of a decree, and I do not think it serves any useful purpose because respondents in petitions under paragraphs (a), (b) and (c) can be dealt with, so far as maintenance is concerned, after the decree nisi has been granted. I hope that I have made this clear and that the noble Baroness, Lady Gaitskell, will agree that she has had no difficulty in understanding it. I beg to move.
BARONESS GAITSKELL: My Lords, may I congratulate the noble and learned Viscount on the lucidity of his explanation? I find myself in the unaccustomed position, and it is a great pleasure to me, not only of understanding him but also of agreeing with him, so that I should like to support this Amendment.
LORD GOODMAN: My Lords, I, too, wish to support this Amendment, subject to one minor qualification. I am not entirely clear what the noble and learned Viscount intends in relation to a situation where there is more than one ground (though of course they are now not grounds but justifications) inserted in the
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petition. I do not think it is appropriate that Clause 4 should be restricted exclusively to cases where a decree is granted under paragraph (e), and nothing else, because that appears to be the only case of a completely innocent respondent who is entitled to invoke this clause. It should be right to invoke it in other cases. If that is what the noble and learned Viscount has in mind, the House may be well advised to accept this Amendment.
LORD SILKIN: My Lords, I hope that your Lordships will not accept this Amendment. I think it is quite retrograde. We are asking the court on a petition to consider all the circumstances arising out of the alleged breakdown of the marriage. Why it should be restricted to the particular case where the parties have separated for five years I cannot understand. Why should not the court look at the conduct of the parties, the position of the children, the possibility of grave hardship, in all these other cases? They are just as relevant to the question of a decree. Why should not the court, for instance, look at the case of a petition on the ground of adultery of one of the parties? Why should it not be possible for the respondent to say, "You have been just as bad; you have been worse. In fact you have driven me to this course of conduct; you have even condoned it"? Why should he not be able to say that? The noble and learned Viscount is not able to speak again but I hope that he will think again and try to appreciate why it is not right that Clause 4 should apply only to one sort of case and not to all the others.
5.44 p.m.
BARONESS SUMMERSKILL: My Lords, I must confess that though I supported the noble and learned Viscount on other occasions, and he has supported me, I am utterly puzzled by this Amendment. He is completely destroying the clause. The most careful thought was given by the promoters of this Bill, and those who advise them, when they drafted this clause. I had a feeling that I heard a murmur behind my back which indicated assent from my noble friend Lord Stow Hill. Is he going to rise up and accept this Amendment? Surely not. He has been so difficult and dug his toes in so strongly on everything else. Now the noble and learned Viscount comes along and seeks to emasculate Clause 4,

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which is one of the most important in the Bill. He seeks to make it apply only to cases under paragraph (e). This really is an amazing attitude to take.
I agree with my noble friend Lord Silkin, who has much more legal experience than I have. I approach these matters only on the ground of common sense. I hope that the House will not accept the Amendment, which is of such a destructive character that it would do injustice to a large number of respondents.
LORD DENNING: My Lords, I express sympathy with the noble Lord, Lord Silkin, and the noble Baroness, Lady Summerskill, because in all cases under Clause 2 (1) (a), (b) and (c), we are not to have discretion statements in future. The petitioner may be far more guilty than the person who has committed adultery or behaved in the way complained of. The petitioner himself may be exceedingly guilty, and yet paragraphs (a), (b) and (c) may be satisfied. The real basis of the whole position is the irretrievable breakdown of marriage, and I should have thought that Clause 4 could stand as it is and not have this Amendment. After all, the court cannot tell guilt or innocence, and if it is restricted to paragraph (e), it follows that in all other cases, though the petitioner may be very guilty himself, the court is not to inquire into other matters, such as hardship and finance. I would ask your Lordships not to accept the Amendment.
LORD MITCHISON: My Lords, I must admit to feeling critical about any Amendment at this stage because I feel, as the noble and learned Lord, Lord Denning said, that we stand in such need of a better system of divorce than prevails at present that we should not quarrel over minor matters. But I do not think that this is a minor matter. I do not see how, on the language of this Amendment, the point that was first made by the noble Lord, Lord Goodman, can be answered. What happens to a petition which is founded on several grounds? That is what we are talking about at the moment, and we are talking about it at the stage when the petition is lodged.
In my view, the most difficult position is going to arise if somebody alleges paragraph (b)—-which deals with the
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question of conduct of living together—as a ground for the breakdown of the marriage. How the court could disregard the provisions of this clause when considering a case under paragraph (b), I find it difficult to understand. I think that a good many of your Lordships feel that the real trouble about the present divorce system is the amount (to be blunt) of dodging and lying that goes on. I feel that if this Amendment is passed, we shall get people putting in a petition under paragraph (b) when the real trouble comes under the other paragraphs. I think that it ought to be a general provision—and I say this in no controversial spirit. I believe that it would be much better if the clause were left as it is, and therefore I hope that the House will reject this Amendment.
THE LORD BISHOP OF EXETER: My Lords, I find Clause 4, as drifted, totally illogical, and the Amendment seems to put the matter right. I cannot understand why, simply because a petitioner may also be guilty of certain marital offences, it should be open to the respondent, who is also guilty of such offences and probably worse ones, to evoke Clause 4—that if a decree is granted, he or she will somehow suffer hardship. Any husband divorced by his wife primarily on the ground of his adultery could certainly plead that he would suffer, as a consequence, considerable hardship. He loses his housekeeper; he may even lose now, under the noble Baroness's ideas, his house. Of course he is going to suffer hardship. If he is able to evoke this clause then he could stop the divorce.
This seems to me quite extraordinary. I have always understood, when we were discussing these things before the Bill was drafted, that these rather exceptional provisions in Clause 4 were drafted with Clause 2 (1) (e) in mind and nothing else. They were drafted in order to try to reassure people who, understandably enough, feel the greatest objection to Clause 2 (1) (e) and divorce against one's consent, that everything possible would be done to avoid injustice and hardship. This clause makes sense only if it is restricted to that one point.
THE LORD CHANCELLOR: My Lords, I do not intend to say anything about the merits of this Amendment, but, as drafted, it gives rise to one or two

1139
difficulties, and I wonder whether the noble and learned Viscount would consider them. It starts off by adding to the words "the respondent to a petition for divorce" the words "on the ground stated in section 2 (1) ((e)". There is no such ground. If the Bill goes through at all, we are abandoning the matrimonial offence and we are basing the law of divorce on a recognition of the fact that a marriage has irretrievably broken down. Paragraphs (a), (b), (c), (d) and ((e) are not grounds for divorce. Clause 1 is in perfectly clear and simple terms, and it says:
"After the commencement of this Act the sole ground on which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably."
Therefore, paragraph (e) is not a ground at all. There are five situations which are to constitute a prima facie case that the marriage has broken down. So that is open only to rebuttal.
The second difficulty is this. Different views have already been expressed as to whether, if Clause 4 is to be limited in some way or other, it is to be limited where the only situation relied on is paragraph (e), or whether it should be limited to cases where paragraph (e) plus other situations are involved. Different views have been expressed—and I think particularly of the noble and learned Viscount, Lord Dilhorne, and the noble Lord, Lord Goodman—as to which of those two positions ought to apply. I do not wish to express any opinion on that; it is a question of policy. But I find it impossible to know how any court would construe this provision. I can envisage a great deal of argument, with some people saying that this Amendment obviously means that Clause 4 applies where the only situation relied on is paragraph (e), and its being equally cogently argued on the other side that it may not mean that at all: that it may mean paragraph (e) but that other situations may be relied on as well. I am not in any way opposing what the noble and learned Viscount wants to achieve, but the actual wording of this Amendment seems to me, with respect, to give rise to considerable difficulties which I hope he will take into account.
LORD STOW HILL: My Lords, I appear in a rather unusual role, in that
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I wish to align myself with the noble and learned Viscount, Lord Dilhorne. I have frequently complimented him on his lucidity; I always understand what he says, and I have on this occasion. I hope that he will press his Amendment, subject to this: that he has heard what the noble and learned Lord the Lord Chancellor has said on the question of drafting, and he might be prepared to give some further thought to the actual wording he has chosen for the purpose of his Amendment.
I must say, with respect, to the noble and learned Lord the Master of the Rolls that I think the noble and learned Viscount, Lord Dilhorne, is in principle, absolutely right, whatever the actual situation should be if alternative grounds are alleged. I see the points he has in mind with regard to that. But this is a matter, I should have thought, of giving consideration to the wording. If I may say so to the noble and learned Lord the Master of the Rolls, if we are cutting away the matrimonial offence, it would not be desirable, again by a side wind, to re-introduce the old discretionary bars. That is not what Clause 4 is intended to do, nor is it so worded.
The main case, as it appears to me from what the noble and learned Viscount has said, is this. It would be quite ridiculous if a wife petitioner appears before the court and complains for example, of conduct under paragraph (b), and says: "My husband hit me on the head with a hammer; he threw all the plates in the kitchen at me and cut my nose; he then kicked me out of the house and starved me and then abused me. He has done that for six long months, and I really cannot stand it any longer", that he should then be able to say: "Nevertheless, I pray in aid Clause 4. I want the court to say that I have suffered grave hardship and that, in spite of my behaviour, my wife should not be allowed to obtain a decree."
Equally, one can think of profligate cases of adultery. It seems to me that when one spouse complains that the other has behaved rather like a rabbit in his sexual activities, it is a little unreasonable that that other should be allowed to claim that Clause 4 should prevent him or her from obtaining a decree of divorce on the ground of that profligate conduct. That, if I interpret it correctly, is what

1141
the noble and learned Viscount principally has in mind. I thought that the right reverend Prelate the Bishop of Exeter put excellently what I am trying to put in less adequate form. I very much hope that, while the noble and learned Viscount may wish to reconsider the language he has chosen and to deal with the point raised by the noble Lord, Lord Goodman, in any fresh language that he selects, he will invite the House to support him in the principle of this Amendment, which I feel is quite acceptable.
VISCOUNT DILHORNE: My Lords, this is indeed an unusual experience. I have made new allies, and I fear that I have made some new enemies. It is the first time in the course of this debate that I have incurred the ire of the noble Baroness, Lady Summerskill. I am grateful to the noble and learned Lord, Lord Stow Hill, for the clarity with which he expounded the reasons behind this Amendment. I listened with interest to my noble and learned friend Lord Denning. I think he had it a little wrong in thinking that one was concerned here with questions of guilt or innocence. I was concerned with this possibility, which I am sure would weigh with him: that if you are going to allow Clause 4 to operate over the whole field, you are putting a very powerful weapon in the hands of every respondent, male or female, to hold up the grant of the decree nisi; and you are putting a heavy additional burden on the courts to investigate every single case in which Clause 4 is invoked. I think that would be a very serious detriment. I can see no advantage, because provisions for finance, maintenance and all those matters in other cases can be dealt with after decree nisi.
I cannot have made myself clear to the noble Lord, Lord Goodman. Perhaps I dealt with this point too shortly. I said I realised that there was a difficult question as to whether you can make Clause 4 apply only when the petition is based on paragraph (e) or whether you should make it apply when it is based on paragraph (e) and other paragraphs. I do not feel strongly about this question, but I have tentatively come to the conclusion that Clause 4 ought to apply whether the petition is on paragraph (e) alone or paragraph (e) and other grounds. The reason I
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put forward that argument is that if it is on paragraph (e) alone there will be a great temptation to other petitioners to by-pass Clause 4 by adding some other allegation—for example, desertion or cruelty—in the hope of avoiding the operation of Clause 4. I do not feel strongly about this matter, but that was the reasoning behind why I wanted it to apply every time that paragraph (e) was relied on, whether alone or in conjunction with some other ground.
The noble and learned Lord the Lord Chancellor has criticised and, if I may say so with great respect, rightly criticised the drafting of this Amendment. It leaves a lot to be desired. The word "facts" ought to have been used instead of "ground", and it should have been made clear it was intended to apply to paragraph (e) standing alone or with paragraphs (a), (b), (c) and (d). I do not know whether there is a great division of opinion—I hope there is not—about this point. I am in two minds as to the best course to take. I want the wording to be right.
If it would please the House, and if the House would think it the right course, I would withdraw the Amendment and table for Third Reading another Amendment which I hope I shall be able to agree upon with the noble Lord, Lord Stow Hill. Perhaps that course would be the best one to take. Alternatively, if there is a real division of opinion, we could get an expression of it now, and I would undertake to move an Amendment later on to put it into the wording which would meet with the requirements of the draftsmen. If there is a division of view and people want to test it perhaps we had better test it by voting and get the Amendment correct later. But I am perfectly prepared to withdraw the Amendment and move it again on Third Reading. I think the view of the House is that I should ask leave to withdraw the Amendment—
LORD LEATHERLAND: My Lords, before the noble and learned Viscount does ask leave to withdraw the Amendment, I wonder whether he could tell us precisely the spirit in which he approaches this matter. Frankly, I believe that not only paragraph (e) but paragraphs (a), (b), (c) and (d) also should be included in this provision. Is it his intention, when he brings forward his

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redrawn Amendment, to make it all-inclusive in the manner I have suggested?
VISCOUNT DILHORNE: My Lords, no, I cannot say that it is. I am intending to limit Clause 4 to cases based on Clause 2 (1) (e), whether based only on Clause 2 (1) (e) or on Clause 2 (1) (e) in conjunction with other paragraphs. In my view the other cases, so far as the financial provisions are concerned, can be dealt with after decree nisi. We ought not to open the door to action by respondents in those other cases under Clause 4, because if we do we shall run a severe risk of completely clogging up the machinery. I do not believe there is much use in debating this matter further. I should like to have the opportunity of consulting with the noble Lord, Lord Stow Hill, before Third Reading, and I hope to get the aid of the experts in drafting, so that at the next stage we can put down an Amendment which will not be open to criticism from its language, although there may be some criticism for what it in fact achieves.
Amendment, by leave, withdrawn.
6.5 p.m.
VISCOUNT MASSEREENE AND FERRARD VISCOUNT MASSEREENE AND FERRARD moved Amendment No. 10:
Page 4, line 5, at end insert: '
("(2) If a petition for divorce is presented more than twenty-five years from the date of the celebration of the marriage and the respondent does not consent to a decree being granted, the court shall dismiss the petition.")
The noble Viscount said: My Lords, I have put down this Amendment because I find it hard to believe that if a marriage has lasted for 25 years or more you can say that it has irretrievably broken down. Twenty-five years—or perhaps 30 years—is a long time for the parties to make up their minds about this, and I should like to see this Bill so amended that any divorce after 25 years of married life should be by mutual consent. My real object in putting down this Amendment was to try to give some protection to the fair sex. Although I like certain aspects of this Bill, I would say that, on the whole, it appears to be slightly biased in men's favour. Therefore, it is not entirely fair.
It is true enough that during 25 years of marriage a husband and wife are bound to have appalling rows; they might get very bored, and have all sorts
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of differences of opinion. But is marriage to be reduced to a point of total selfishness? If so, it will not be a fit institution in the future in which to bring up a new generation. I have always regarded the family unit as a basis of our civilisation—in fact the basis of any civilisation. Mr. Jenkins, the Chancellor of the Exchequer, gave us, I understand, a little lecture the other day on civilisation. He told us that in his opinion the present age in this country was the most civilised age we had ever seen. How he arrived at that conclusion I find it hard to understand, with the great increase in crime and drug-taking.
Although I am all for freedom of thought, freedom that becomes licence is something with which I disagree. If this Bill goes through as it is at present drafted then marriage as an institution, and the ties of marriage are bound to be weakened. To my way of thinking you should strengthen the wife's position and not seek to diminish it. We all know that on the whole it can be said that women, especially if they have had children, may age more quickly than men. Whereas a man of 55 or 60 years of age can go and find an attractive young wife, it is not so easy for a woman of 55 or 60 years of age to marry again. Therefore under this Bill she is at a great disadvantage. It is quite possible, of course, that the respondent may be a man, but on the whole, after 25 years of married life the respondent is more likely to be a woman. This Amendment will help to protect the woman.
A man who has had a wife for 25 years or more can, under this Bill, abandon her, though she has probably devoted all her life to bringing up his children. We have clauses in the Bill, I agree, to provide for her financially and so on, but money is not everything and it is no compensation for loneliness. To-day especially children grow up very quickly. There are improved means of travel and they like to be independent, and they are therefore liable to fly away abroad, and there is no guarantee that the deserted wife will have the companionship of her children. In any event, it is not a fitting duty for children to take the place of, or to give the same companionship as, her life's partner, As I have said before, money is no compensation for loneliness. One cannot buy oneself out of moral responsibilities.
I see a number of right reverend Prelates opposite. What do they really think the marriage lines are for? For better or for worse; in sickness or in health.
LORD BYERS: My Lords, will the noble Viscount be a little more explicit? Is it the intention of this Amendment that the husband should be locked up with the wife; should be forced to remain in the household night after night?
VISCOUNT MASSEREENE AND FERRARD: No, my Lords, of course not. I will come to that point in a moment. The noble Lord has jumped the gun.
One can almost say that the marriage lines will have to be re-written. I think that under this Bill they will appear to be rather a confidence trick. However, the point is that the elderly or middle-aged woman may have her husband go away and be separated from him, but she has the legal protection and prestige of having a husband. I have known some sad cases of elderly women whose husbands have gone off, and if these women had had their husbands with them they might not have been swindled and suffered other unpleasant experiences.
Marriage is a woman's whole life. In some respects it could be called a career, but it is certainly a woman's whole life. This Bill is going to bear rather hardly on some women, and as I am always very pro the fair sex I do not want them to be unfairly treated. If this Bill as drafted becomes law it will surely negate the great sense of security in marriage that women have. If women feel that marriage is no longer secure and can no longer offer them security, they may even abandon marriage altogether. Some people might find certain aspects of that attractive, but of course I am speaking seriously. That would obviously be a disastrous thing for the State and for civilisation. I think that if we do not give women security in marriage there will probably be a great crusade for equal pay for equal work for women. So we shall not have it all our own way. As I say, if women cannot have 100 per cent. security in marriage they will want to stand on their own feet, and they can do that only if they get equal pay for equal work, which of course
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they have been trying to get for a considerable time. I say again that I introduced this Amendment because I want to see justice, and I am rather frightened because certain aspects of this Bill appear to me to be rather unfair to women in certain categories. I beg to move.
6.16 p.m.
BARONESS GAITSKELL: My Lords, although I think the views of the noble Viscount are very gallant towards women, I cannot support his Amendment, because the cases he is thinking of are the less usual cases. In most cases if a marriage lasts for 25 years there is a pretty good chance that it will make a century. The noble Viscount said (my noble friend Lady Summerskill was not here a: that moment, but if she had heard it I think she would have risen up in arms) that marriage is the whole of a woman's life.
BARONESS SUMMERSKILL: My Lords, I think that for most women it is. I agree with the noble Viscount.
BARONESS GAITSKELL: I dc not think that that is the way the world is going. Women have other interests and other concerns than just the family, because they are in a very bad way when they become older if their interests are restricted to only the family. But I have known cases where a woman has waited until all her children have grown up, and even married, and has then divorced her husband (he has usually been not a very good husband) and has lived more happily ever after.
BARONESS SUMMERSKILL: My Lords, may I say just one word, because it was so delightful to hear the noble Viscount being so gallant? It is very unusual, and it was very refreshing. It is perhaps significant that when he was paying a tribute to marriage I popped out of the Chamber to tell my husband that I should be late for dinner. I can only say this to the noble Viscount. I fully appreciate his point, but I have not stressed it throughout the passage of this Bill, or during the discussions that have been taking place during the last two or three years, because one cannot compel two people who loathe each other to live together. Therefore, the only logical approach to that position is to say that if the circumstances described by the noble Viscount arise after 25

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years of married life, during which the wife has devoted herself to the family, if divorce then comes, at least she should be assured of some adequate financial provision. I have stressed the financial side, not because I approach marriage in a materialistic way in any sense at all but because I feel that this is the only logical approach.
6.19 p.m.
VISCOUNT ECCLES: My Lords, I feel that I must enter a small protest against my noble friend's Amendment bcause what he is really saying is that men regard women as merchandise, and when they have had the merchandise for 25 years it is very likely that they want a change. I repudiate that; I think it is most unfair. So far as I can see, my noble friend does not understand that the charms of women who have gained in experience, and probably in beauty too, are very great indeed.
What the noble Viscount is saying is not fair. He is putting forward a kind of Indian Summer Amendment, and I object to that very much. On the other hand, there may be occasions—and in fact I know of one—where a man and wife remained together for 25 years because of the children. They were determined that their children should not realise (if you like to put it this way) that they had fallen out of love, and they went to remarkable lengths to give their children an upbringing in an unbroken home. But after all that, is it not reasonable that in such a case they should have the same chance as people who have not been through all that long period because they believe precisely what my noble friend believes in; namely, that a family ought to be kept together, and particularly while the children are there? It is not fair to charge the male sex with having this almost universal feeling that after 25 years it would be nice to have a change, if we could.
LORD STOW HILL: My Lords, I hope the House will not accept this Amendment. I listened with the greatest interest to the fascinating, analytical and philosophical approach of the noble Viscount, Lord Massereene and Ferrard, to this difficult social problem. I go with him a long way. I also am pro the fair sex. I also accept that money is not
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everything, and I agree with him that marriage should not be abolished. However, those considerations do not lead me to think that this Amendment is one which should be supported.
I think the case that has sprung to the mind of all the speakers on this Amendment is very much the same sort of case as that mentioned by the noble Viscount, Lord Eccles. One constantly comes across the case of a man and woman who do not get on but who have children. If there were no children they would long since have fallen apart, their relationship would have ended in divorce and they might have made other happy unions, but in an unselfish desire to maintain the family unit together until the children have reached adult age, they have stayed together for that one reason for over 25 years. That is highly meritorious on their part.
The effect of the Amendment would be that those very people who, perhaps, when they have discharged what they rightly regard as their duty towards their children, would like to separate in a real sense and lead their independent lives, will not be able to do so. I hope the noble Viscount will agree with me that that would be a most unfair result. It is not as if—at any rate so far as our debates on this Bill have gone—the principle has not been accepted that after five years there should be divorce at the instance of one party despite the wish of the other. That has been accepted, but the noble Viscount wants to ensure that it should not apply where the marriage has lasted for 25 years. The result would be that the meritorious cases that I have described and which have been referred to by previous speakers would be put at a great disadvantage and would not be able to achieve the wish they have harboured secretly for so many years. I hope that for that one consideration the noble Viscount may feel that it would not be right to press his Amendment.
LORD SILKIN: My Lords, I wish to make only a brief comment. Of course one can only get a divorce on the ground that the marriage has irretrievably broken down. There may be cases where it has irretrievably broken down even though the parties have been married for 25 years, but it is not very likely. The very fact that they are together would be at

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least presumptive evidence against the marriage having irretrievably broken down. But might not one of the by-products of this Amendment be that the party who wants a divorce would say, "I really must get in before the end of the 25 years "? He might consult a calendar and say, "I will start my divorce proceedings a month before the 25 years are up, otherwise I may be too late".
VISCOUNT MASSEREENE AND FERRARD: My Lords, regarding the remarks made by the noble Baroness, Lady Summerskill, I did not in fact mean that all women regarded marriage as their whole life and career, but I think a considerable number do. In regard to the question of financial provision, I think we are all inclined to look at this Bill from our own point of view. The average man in this country cannot afford to keep two or three women, and I am afraid that when financial provision comes to be made the man will not have any money to make proper financial provision for his wife. It is all very well if you are a rich man, but the average man is not rich.
There is another point, that the single woman, the woman who has remained unmarried, has presumably had a career and has managed to amass some money. She probably has some capital, so she will be far better off than the married woman who has been deserted after 25 years; and if she has been deserted by a poor husband she will not get any worth while money from him. She will have given her whole life to him, after having borne his children, and presumably the remainder of her life will be void. The noble Viscount, Lord Eccles, quite rightly said that there are some extremely attractive women of 60 and over, but to be fair—
LORD LEATHERLAND: My Lords, if I may interrupt the noble Viscount, he referred to single women. Surely he is not suggesting that there should be divorce for single women?
VISCOUNT MASSEREENE AND FERRARD: My Lords, the noble Lord obviously misunderstood me. I was saying that if women had not been married they had an opportunity to amass some money, whereas the married women have not had such an opportunity. At least, they might find it difficult.
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I will of course withdraw the Amendment, but I wanted to bring out those points. I still maintain that to my way of thinking this Bill may turn out to be unfair to some women, and I think that would be a pity. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 5 [Power to rescind decree nisi in certain cases]:
LORD STOW HILL: My Lords, this Amendment No. 11 is purely consequential. I beg to move.
Amendment moved—
Page 4, line 14, leave out ("not to object") and insert ("to consent").—(Lord Stow Hill.)
Clause 11 [Short title, constriction, commencement and extent]:
6.29 p.m.
LORD BYERS LORD BYERS moved Amendment No. 12:
Page 6, line 34, leave out from ("on") to end of line 36 and insert ("1st January, 1971").
The noble Lord said: My Lords, during the Committee stage a similar Amendment to this was moved by the noble Lord, Lord Stow Hill, and after an important debate it was withdrawn for further consideration. During the debate at the Committee stage a number of speakers expressed apprehension that we were intending to pass a measure to make divorce easier without satisfying ourselves that suitable financial arrangements would be available to the respondent, or what I suppose used to be called the "innocent party". This was particularly worrying—and I can understand it—to certain noble Lords who seemed to believe that the Law Commission will come forward next year with a measure that will fundamentally affect the results which may be expected to flow from this Bill.
Because of this concern various suggestions were put forward, which are represented in other Amendments which follow mine on the Marshalled List. The noble and learned Viscount, Lord Dilhorne, wanted to be certain that the operation of this measure would be delayed until what we might call the new Matrimonial Property Bill came forward or, indeed, was safely on the Statute Book

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—or shall I call it the Financial Provisions Bill which is envisaged? And he wanted to do this whether it was earlier or later than January, 1971.
There was a further proposal, again represented by an Amendment on the Marshalled List, that different parts of the Bill should come into operation at different times. And the noble Lord, Lord Sandford, proposed that the Bill when it becomes an Act should not operate until an Affirmative Resolution had been passed by both Houses. Faced with that, I thought it right to put down this Amendment again, to see whether the date of January 1, 1971 was an acceptable compromise. I make no secret of the fact that I should prefer to see this Bill operate at an earlier date, but in deference to those who have misgivings I have put down this later date of 1971 in the hope that the House may accept it.
I want to make only two main submissions, because the debate in Committee was a full debate, and far better speeches were made by the noble Lord, Lord Stow Hill, and the noble and learned Lord, the Lord Chancellor, than I can hope to make. First, I think that we ought to agree to set a firm date, a date by which those members of the public affected by this new Bill when it becomes an Act will know that it will be in operation. Many people are living in misery and they have been in that state for some considerable time. In my view they are entitled to know that Parliament has set a term for their frustrations and that they will not have to continue to live in a state of very unhappy uncertainty. While I fully appreciate the compassion and praiseworthy motives of those who seek to satisfy themselves on the financial protection, all those proposals which have been made and are being made do impose delay, and they do prolong uncertainty.
The suggestion that the date of commencement of the Act should be subject to an Affirmative Resolution in both Houses, as suggested by the noble Lord, Lord Sandford, in my view makes the position of those involved even more worrying, because the Bill could be prevented from coming into operation by a vote of either House; and I do not
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think it fair that the people who are waiting should feel that even at that stage the Act could be snatched away from them by a vote in either House. I should not like to think we should be a party to encouraging this doubt to hang over legislation, a doubt which in itself prolongs human suffering.
As to the protection which may or may not be afforded under any new measure which comes forward next year, I am no less concerned than the next noble Lord. I want to see the situation improved very much along the lines suggested by the noble Baroness, Lady Summerskill, and others in all parts of the House, and I would certainly support the whole idea. I am particularly concerned with the position, for instance—and I have recently come across such cases—of married women who are deserted by their husbands who go abroad. The husband transfers all his assets abroad, takes up with another woman; and at the present time, I am advised nothing can be done about it. I want to see that situation put right. The parties to the divorce, especially the respondent, have a right to expect better protection than they have at present, and I am quite sure the Law Reform Commission will come forward with important proposals.
I think we must recognise that the financial provisions of this Bill are far better than anything we have had up to now; and certainly under Clauses 4 and 6 what are called the Draconian proposals go a very long way to improve the situation. I will not quote this part of the Bill; noble Lords and noble Baronesses know it. But it says that the court shall do everything in its power virtually to see that there is proper protection; and in the last resort the best job that can be done in the circumstances is done.
I think that many speakers have given the impression that any new Bill which comes forward will be able to do far more than in fact it can do. Where we are dealing with the sort of case I have quoted, of the man who goes abroad and takes his assets, we may be able to devise a fairer system, by arrangements between different countries, and similar steps. Where there is a family with a reasonable income and some property, the Bill can provide for fairer apportionment and reasonable arrangement; but where the family income is a low one, any financial

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arrangement is bound to create the most difficult problem, as it does to-day. Some noble Lords have given me the impression that they thought that under some new Bill to come forward next year the court might be empowered to increase the family income in some way, or to create new assets, or print money. I am quite sure this is absolutely impossible.
I do not believe that anybody is going to take seriously the suggestion made by the right reverend Prelate the Bishop of Durham, that we should have cash awards to people in low income groups on the sole ground that they wish to get a divorce. I do not think there would be much public sympathy for a policy of that sort. The fact is that, whatever is done, any redistribution of income in the £10 to £15 a week class is bound to cause some hardship. Under this Bill, I believe it is right to say, provision has been made so that the courts will be able to do the best they can in very difficult circumstances. I think it is therefore up to us not to prolong uncertainty but to do the best we can for the people who are suffering at the present time. I would ask the House to accept this as a compromise measure. By 1971 we shall know a great deal more about the proposals to be made, but even if we do not, I do not see that we can go much further in this measure than we have done at the moment. I beg to move.
6.37 p.m.
VISCOUNT DILHORNE: My Lords, the noble Lord, Lord Byers, thought fit in the course of moving his Amendment to refer both to the Committee stage and also to the other Amendments now upon the Marshalled List. He has put forward his suggestion as a compromise. My difficulty is that I do not think it is a very satisfactory one. I can see no reason myself why a great deal of this Bill should not be brought into force at the earliest possible moment after its enactment. I can see no reason why, for instance, the provisions relating to divorce on the facts stated in Clause 2 (1) (a), (b), (c) and (d) should not be brought into operation immediately. Where there is a special case for delay is where the divorce is based on the fact of separation for five years and it is brought against a person who is, or is said by many to be, wholly innocent.
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The noble and learned Lord, the Lord Chancellor, has received a letter which has been referred to many times in this debate, giving certain assurances. My criticism of Lord Byers's Amendment is that it does not give the noble and learned Lord, the Lord Chancellor, much room for movement. It is to give him that, which I hope he will accept, that I have put down the Amendment which is No. 13. That would enable him to bring different parts of the Bill into operation on different days. I say straight away, in case it may save time, that the Amendment may be entirely wrongly drafted, but I took it from an existing Act; so I hope that in this case the wording is right. The idea is to enable the noble and learned Lord, the Lord Chancellor, to do that. After all, why should one delay the operation of the greater part of this Bill to an arbitrary date, January 1, 1971? It seems to me unnecessary, and it seems to me unnecessary to be so specific. Suppose the Government get on with their legislation more quickly than they have done in the past; suppose the Bill is introduced, enacted and brought into operation months before January 1, 1971. I think that is not impossible. Then can we really justify the delay? I feel that there is a strong case for a measure of flexibility here. It may be that January 1, 1971, will be too soon; one cannot tell.
The noble Lord, Lord Byers, talked about the hardship of petitioners who have been separated for so long and who cannot get a divorce against someone who under the existing law has not committed any matrimonial sin. One is perhaps apt—I think the noble Lord, Lord Byers was—to look too much at one side of the picture. I should not like to see that kind of decree granted until the best possible provision, financial and otherwise, had been made for the divorced spouse. It is true that in Clauses 4 and 6 this Bill seeks to make such provision as can be made. But, as I understand it, the Act we are concerned with deals with other matters which depend not upon the husband's income but the various related benefits under our social services schemes, and all that.
I am trying to take this point shortly and to speak to two Amendments at once in the hope that we can save time. Leaving on one side the question of an Affirmative Resolution, could ore not

1155
take Amendments Nos. 13 and 15 together? That would mean that all the Bill, except the parts relating to Clause 2 (1) (e), could be brought into operation straight away and without an Affirmative Resolution. Then you can bring into operation Clause 2 (1) e) directly after the new promised Act has been brought into operation; so there would be no gap so far as the respondent was concerned. So far as I can see, that would be the happier arrangement. I do not like fixing a completely inflexible date. I would give the noble and learned Lord the Lord Chancellor more liberty of movement. The best thing of all would be that both Houses of Parliament should have an opportunity of seeing whether, in the light of the new measure which is promised, they would wish to bring this Bill, or parts of it, into operation. That may be too much to hope for.
I hope that the noble Lord, Lord Byers, whose Amendment is the one now under discussion, will think again and not press his Amendment to-night, for this reason: he might combine Amendment No. 13 with his, in the sense of providing that the Bill could be brought into operation on such day or days as the Lord Chancellor thought fit, but—and this is a possible alternative—in any event not later than a particular date. That is one possible compromise. I shall be interested to hear what the noble and learned Lord, Lord Stow Hill, says. After our friendly debate on this Bill, it would be a pity that we should perhaps end up by way of friction, and I hope that we may find a solution which is mutually acceptable. For myself, I should be prepared to trust the Lord Chancellor to do what I am sure are the wishes of the House, and to give him more flexibility than the Amendment of the noble Lord, Lord Byers, would allow.
6.43 p.m.
VISCOUNT ADDISON: My Lords, it seems to me that the noble and learned Viscount who has just spoken is asking that the noble and learned Lord on the Woolsack shall have discretion or as much freedom of action as is possible. I hope I have understood him correctly. For my part, I think there is a great deal to be said for the Amendment, by reason of the fact that it sets a time beyond
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which it would not be possible to go. It seems to me that the wish of the noble and learned Viscount is already in the Bill. Clause 11 (3) says:
"This Act shall come into operation on such day as the Lord Chancellor may by order made by statutory instrument appoint."
I do not think you can have any more freedom than that.
VISCOUNT DILHORNE: My Lords, the noble Viscount will appreciate that that applies to the whole of the Act, not different parts.
VISCOUNT ADDISON: I am well aware of that, and that makes me all the more in favour of supporting some sort of extended time limit. I quite understand that this may not entirely fall into line with what the noble Lord, Lord Stow Hill, desires. But I can see nothing seriously wrong with the amendment and in the absence of any better assurance, I think it would be a good thing to support it.
BARONESS SUMMERSKILL: My Lords, I am sure that the House will be glad that this will be the last speech I shall make on this Bill, because in my opinion we could have telescoped the last four Amendments into one. I concur with everything that the noble and learned Viscount has said, and also with what the noble Lord, Lord Byers, has said. I am sure that our object is the same. I would have supported this Amendment on the assumption that during the next Session legislation would be introduced which would protect the woman who is compulsorily divorced—the woman whom we now call "paragraph (e)". I am quite happy that much of the rest of the Bill should go on the Statute Book immediately. But I have said this many times: the real victim of this Bill is that particular woman.
I do not like to press my noble and learned friend who sits on the Woolsack, but he could rise now and assure us that this legislation will be introduced in a certain time. Then we could accept the noble Lord's Amendment now, because that is all we are waiting for. We are awaiting, and trying to think of the best date which can be thought of in order that the cart should not be put before the horse. That has been said time after time in this House. We are waiting

1157
only to be assured that this particular woman will have financial protection, and then the measure can go on to the Statute Book. I think that this is the general feeling of those who have put their names to the last four Amendments on the Marshalled List to-night. It is certainly my view.
6.47 p.m.
LORD SEGAL: My Lords, there seems to be general agreement that the coming into operation of this Bill should not be delayed beyond January 1, 1971. Surely this difficulty could be resolved if Clause 11 (3) were made to read
"This Act shall come into operation on such day prior to January 1, 1971, as the Lord Chancellor may by order made by statutory instrument appoint."
That would make it obligatory. On whichever date the Act, or any section of the Act, should come into operation, at any rate it should not be later than January 1, 1971.
LORD GOODMAN: My Lords, I personally would be strongly in favour of the immediate enactment of this Bill when it receives the Royal Assent, for reasons that I sought to explain during the debate in Committee, when I hoped that the arguments that commended themselves to me might be demonstrated to be wrong if they were wrong. I had no such demonstration, and I believe them to be right. But as a compromise proposal I would support the Amendment proposed by the noble Lord, Lord Byers. Certainly it must be better to have a specific date when people know when their rights will be defined.
I wonder, however, whether I may detain your Lordships for one moment in an effort to reassure you that you will not be doing anything prejudicial to the rights of the ladies whose interests have been so powerfully canvassed so often in this House, if in fact you were to enact this Bill immediately; and certainly you will not if you enact the Bill on January 1, 1971. I was frankly puzzled by the suggestion on the part of the noble Viscount, Lord Dilhorne, that those parts of the Bill which, it seemed to me, are demonstrably weak in relation to the financial provisions now in existence should be introduced immediately, but that that part of the Bill which contained its own self-contained, very effective financial code, should be deferred.
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So far as the famous paragraph (e) and the two new grounds are concerned, they are supported by financial provisions in the Bill. No one has demonstrated or suggested that those financial provisions are not as good as you can get. They are. Shed of the wishful thinking, as the noble Lord, Lord Byers, so rightly said, that the Government are going to be able to produce some means of improving the income of improvident adulterers—for which, so far as I know, no such proposal exists—the financial provisions now in the Bill are as good as you can get. They are that the order to be made is to be a fair and reasonable order, or it is to be the best that can be achieved. No one can do better than that. Moreover, these financial provisions have the great advantage that by way of improvement over the financial powers given to the Judiciary at present obtaining, they can make every kind of order; which power, in some cases, is not at present available. The judge can require that there should be a settlement of capital; he can require that arrangements should be made for the long-term financial interests of the ladies concerned; he can make any kind of financial order that he pleases which, in his opinion, is fair and reasonable in all the circumstances. He has complete and absolute discretion in this matter. Nothing better can be thought out.
In fact, if we turn our minds to the famous letter written by the Law Commissioners to the Lord Chancellor, it will be remembered that they made no promise of anything better in relation to these matters. What they say is that they will produce something better for the existing grounds of divorce when: there is, and is acknowledged to be, a deficiency in relation to the powers of the Judiciary. The Law Commissioners are not promising any better financial provisions than are contained in Clause 6 of this Bill, and we can wait until Doomsday—and shall wait until Doomsday—for the hopeful proposal in one of these Amendments that the Bill shall not be brought into power until an Act has been passed to improve the financial provision of divorced wives. No Act will be passed to improve the financial position of divorced wives. Nobody has any intention of passing any such Act. This would be a fiscal measure, requiring

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that some financial provision be appropriated by the Government, for it to be available for divorced wives. It is obviously a completely fanciful notion. We are, if I may say so, held back by entirely fanciful and chimerical fears about the financial provisions of this Bill. What I am quite certain of is that your Lordships are not to be shaken in the view that there should be an opportunity to have a look at what the Law Commission are going to produce.
It would seem to me that the proposal of the noble Lord, Lord Byers, is entirely sensible. By January, 1971, whatever it is that is going to be produced will be produced, and it is not going to be anything that will be profoundly encouraging to those who are destitute of adequate means to maintain two households. But whatever it is that is going to be produced will have seen the light of day. I would strongly recommend your Lordships to follow the course which I propose to follow, that is, if the noble Lord, Lord Byers, presses this Amendment to a Division, that we support him and have a firm date.
As I started, I conclude by saying that the apprehensions in this matter are fanciful, and nothing will emerge from the Law Commissioners, or anyone else, to improve this situation in relation to the two new grounds of divorce already established in the Bill. What may happen is that better powers may be given to the judge in relation to grounds for divorce which are being granted every day of the week under the inadequate powers they already have.
6.55 p.m.
LORD SANDFORD: My Lords, it may save time, and it might be convenient, to discuss all the four Amendments to Clause 11 together—and at any rate Amendments 13, 14 and 15 are all competitive with each other. Though I support them all, I address myself chiefly to Amendment No. 14, which stands in my name. I mention two things that this Amendment does not seek to do. It does not have the effect of imposing a delay, as Amendment No. 12 does, though I grant that that is a precise delay. There is no attempt in my Amendment to suspend the Bill beyond the period that is essential for the preparation of the framework in which the Bill is to operate.
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We know from the Amendment moved by the noble Lord, Lord Stow Hill, at the Committee stage, that he thought 18 months was about right. If I recall rightly, the noble and learned Lord the Lord Chancellor, also in the Committee stage, thought that it would take until Easter 1970, nine months, in order to prepare the rules.
It is factors like these, and other factors of this kind, that will impose any delay there is to be, not the requirement set out in my Amendment for a debate on an Affirmative Resolution in both Houses. Nor does this Amendment involve yet a further debate on the content of the Bill. That will have been settled once the Bill has received the Royal Assent, and surely all noble Lords and Members in another place know that its contents cannot be altered by any further debate, any more than can the debates on an ecclesiastical measure, or a set of regulations laid before Parliament for approval.
The purpose of Amendment No. 14, which it serves in conjunction with Amendments Nos. 13 and 15, is to ensure full Parliamentary control not so much over the content of the Bill, which has been secured by the thorough scrutiny it has already had, but rather over the timing and the context, or the circumstances of its commencement, about which a good deal of anxiety and doubt still, in my judgment, remain. There is this uncertainty about the financial provision in spite of what the noble Lord, Lord Goodman, has said. This is a point which, if need be, Amendment No. 15 will deal with on its own. There are also other matters which, as the noble and learned Lord the Lord Chancellor mentioned at Second Reading, were being looked into by his right honourable friend the Secretary of State for Social Services, and there are others which I specified at the Committee stage and which I will not weary your Lordships with again.
There is a further reason why I believe the procedure provided for in Amendment No. 14 is particularly needed It is because on the one hand this has been introduced as a Private Member's Bill, and, on the other hand, it is one of the most far-reaching pieces of social reform we have had to deal with in this decade. In the case of this Bill and one or two others in this social field, the case for its being a Private Member's

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Bill has been well made, and is well understood. It does not mean that it has not been thoroughly thought out; it does not mean that it has not been properly drafted, and it does not mean that it has not been properly discussed. This Bill has been thoroughly thought out; it has been well prepared and expertly drafted, and, with the skilful eloquence of the noble Lord, Lord Stow Hill, behind it, and the time provided for its full discussion in this House, we can be content about what is actually in the Bill. But the fact that it is a Private Member's Bill means that Her Majesty's Government are not as fully committed to it as they would have been had it been Government legislation. There are no Whips on, and there have not been. But once the Bill is on the Statute Book it has the same status as any other Statute, and it deserves to operate in a framework as fair and as well founded as any other Government legislation. It also deserves to come into operation with all reasonable despatch. This consideration does not perhaps have all that weight when we are legislating for social reform that only affects minorities such as murderers, homosexuals and abortionists, but I submit that it has very great force when we are dealing with a Bill which reaches out to, and may affect, every family in the land.
Nor does this consideration apply only to this Bill. Only yesterday another Private Member's Bill, the Employer's Liability (Compulsory Insurance) Bill, received its Second Reading in your Lordships' House. That Bill, when it is enacted, will affect every employer in the land, but it was quite clear, as I listened to the Government spokesman being questioned by my noble friend Lord Drumalbyn about the framework which is being prepared for this Bill to operate in, that Her Majesty's Government have hardly even begun to set it forward. So that there again there would appear to be a case for the same procedure as is proposed in our Amendment No. 14, and for the same reason. There is a case for Parliament's controlling the commencement of a Private Member's Bill—when it is a Bill of wide-ranging significance—after it has been enacted, in order fully to satisfy itself and to assure the public outside that all is set fair for its commencement.
7.2 p.m.
LORD STOW HILL: My Lords, I think I can address your Lordships shortly, because I absolutely agree with every word uttered by the noble Lords, Lord Byers and Lord Goodman. May I say to the noble and learned Viscount that I hope he will not think there is any question of the debate ending in asperity—certainly not on my part—but I cordially disagree with him. It seems to me that the noble Lord, Lord Byers, was absolutely right when he said that it is not fair that people should be left in suspense. January 1, 1971, is a date a long way away from to-day: they will have to wait nearly 18 months; but they will be given certainty.
My noble friend Lady Summerskill said that the only persons who were the victims of this Bill were ladies who would be inadequately provided for. With great respect, she is completely and absolutely wrong. There are an enormous number of people who are waiting to know when they can have their situations straightened as a result of the enactment of paragraph (e), and it would be quite unfair to leave them in a state of completely unnecessary suspense. So I should have thought the first thing one should aim at was a fixed date. That is what I had in mind when I originally put down an Amendment in the same terms as that which the noble Lord, Lord Byers, has moved.
When we last debated this subject, the noble and learned Lord the Lord Chancellor made what I thought was an extremely helpful intervention. He indicated two things, as he has done on many previous occasions. The first, was that, as the noble Lord, Lord Goodman, said, the measure which he has it in his power to introduce is not going to revolutionise the situation—very far from it. On the contrary, the most Draconian powers are now contained in Clauses 4 and 6 of this Bill, and it is extremely difficult to envisage their being improved upon. They are in addition to the existing powers, which are contained in the Matrimonial Causes Act 1965, which have operated for many years and about which there has been no complaint. So these new powers will be added to what already exists and it really is not possible, in any real sense, to improve upon them.
The noble and learned Lord the Lord Chancellor has made it perfectly clear

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that that is the case, except in some respects. He has made it perfectly clear (I hope he will correct me if I am mistaken) that it is his intention to introduce the measure which he has in mind between, I think, November of this year and April of next year. I do not know whether he has any further proposals from the Law Commission than those contained in the letter which he read out during our Second Reading debate. But he must have—indeed, he has intimated that he has—a very clear idea of what he has in mind; and if he introduces between November this year and next April the measure to which he referred, the whole of 1970 has to go by and, unless something very surprising takes place, the two Houses of Parliament will, I should have thought, have ample opportunity to acquaint themselves with the nature of his proposals, then to examine them and to import into them such changes as they think necessary. It is possible that that process might finish before January, 1971, but surely it is worth a greal deal to have some certainty of date.
I am quite certain that I speak for those people in the country who are longing to know whether this Bill is going to be passed and when it will come into operation, if I say on their behalf that they will be overjoyed for this measure to be postponed a little until January, 1971, so long as they now have a certainty, first, that it is going to get on to the Statute Book; and, secondly, that it is going to come into operation not later than that date. I earnestly hope that the noble Lord, Lord Byers, will ask the opinion of the House on his Amendment.
LORD LEATHERLAND: My Lords, may I ask one question? How does the noble and learned Lord the Lord Chancellor intend to introduce the financial provisions? Will they be in the form of a Bill or of some other kind of Instrument?
THE LORD CHANCELLOR: No, my Lords. They will be in the form of a Bill.
LORD BYERS: My Lords, I am grateful to the noble Lords who have taken part in this debate, and all I want to do is to reinforce what the noble Lord, Lord Stow Hill, has said. In my view,
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all the other proposals which have been put forward, very sincerely, have the defect that either they are asking for piecemeal legislation (and we all know what that means: some of the pieces get lost on the way) or they are imposing delay; or, in an attempt to give flexibility, which I appreciate, they are creating or prolonging uncertainty. That is why we are asking as a compromise, but as a clean compromise, for a date to be set for this Bill to come into operation. I hope that when I press this Amendment, as I intend to do, we shall have support in the Division.
VISCOUNT DILHORNE: My Lords, I think Amendment No. 13 cannot arise, as Amendment No. 12 has been carried; but if it could arise I should not move it. Also, I shall not move Amendment No. 15 either.

CONSOLIDATED FUND (No. 2) BILL
7.8 p.m.
Brought from the Commons, endorsed with the Certificate from the Speaker that the Bill is a Money Bill, within the meaning of the Parliament Act 1911, and read la.
Then, Standing Order No. 41, having been suspended (pursuant to the Resolution of July 14), Bill read 2a: Committee negatived; Bill read 3a, and passed.

FINANCE BILL
7.9 p.m.
LORD BESWICK: My Lords, I beg to move that this Bill be read a second time. In moving the Second Reading of this Bill, I ought to mention that it is customary for us to have an economic debate on the same day—
LORD BARNBY: My Lords, on a point of order—and I apologise to the noble Lord for interrupting him—may I draw your Lordships' attention to the fact that it is now ten minutes past seven and the Second Reading of the Finance Bill is just being taken? Although the noble Lord's explanation may be that he is the victim of the Government's own mismanagement, and I sympathise with him, on looking back over a long—
LORD BESWICK: My Lords, I wonder whether the noble Lord will properly allow me to finish the sentence on which I had begun. I was saying that it is customary to take the Finance Bill formally and that it has been agreed that we do so on this occasion. I was about to say, however, that it is also customary, when we take this Bill formally, to arrange for a debate on economic affairs. On this occasion the Opposition have, in the interests of the House generally, agreed that we should not have this debate on economic affairs at this point of time, in order to make room for other important business, which has just been concluded; and I was about to offer my appreciation to the usual channels and to the Opposition for their help and co-operation in this matter. With that, I was about to move formally that this Bill should now be read a second time.
Moved, That the Bill be now read 2a.—(Lord Beswick.)
LORD BARNBY: My Lords, may I now continue with my interruption, for which I apologise to the noble Lord? I am grateful to him for the explanation which he has given, but while he has admitted that it is customary that there should be some discussion on the Finance Bill, looking back over a long experience in your Lordships' House I think it is unusual for the House to be presented with a Finance Bill in this manner. I think it would be unfortunate if there were not comment made about it, because the debate on the Finance Bill has been of great value to your Lordships in providing the opportunity to hear the comments on financial matters of several distinguished and eminent Members of your Lordships' House. So I thank the noble Lord for the explanation he has given, but he will understand—and I think he would agree—that I think it would be unfortunate if attention were not drawn to this point and it should provide a precedent for the Finance Bill to be passed without any discussion when there has been no debate on economic affairs during the Session.
LORD BESWICK: My Lords, I quite agree with that. I would also say that the fact that we are not having the customary economic debate on this occasion should not be taken as a precedent. I hope that, with that assurance, the
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noble Lord, Lord Barnby, will agree that we now accept that this Bill should be read a second time.
On Question, Bill read 2a; Committee negatived.
Then, Standing Order No. 41 hiving been suspended (pursuant to the Resolution of July 14), Bill read 3a.
LORD BESWICK: My Lords, in moving that the Bill do now pass, perhaps I may add, further to the assurance that I have given to the noble Lord, Lord Barnby, that part of the agreement was that we should have a debate on the economic situation of the country during the first week of the new Session, in the debate on the gracious Speech. My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Beswick.)
On Question, Bill passed.

EDUCATION (SCOTLAND) BILL
7.15 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES): My Lords, I beg to move that the Commons Reason for disagreeing to certain of the Lords Amendments and the Commons Amendment to one of the Lords Amendments be now considered.
Moved, That the Commons Reason for disagreeing with certain of the Lords Amendments and the Commons Amendment to one of the Lords Amendments be now considered.—(Lord Hughes.)

COMMONS AMENDMENT TO ONE OF THE LORDS AMENDMENTS AND COMMONS REASON FOR DIS- AGREEING TO CERTAIN OTHER OF THE LORDS AMENDMENTS
[References are to Bill (107) as first printed for the Lords. Commons Amendment and Reason are printed in Italics.]

LORDS AMENDMENTS
[Nos. 1-5]
Clause 1, page 2, line 24, after first "of" insert "school education in public schools at which fees were being charged on the 25th November 1968 and of".
Clause 27, page 35, line 14, leave out from beginning to "Part" in line 15 and insert "Paragraph 7 (2) of".
Clause 27, page 35, line 24, leave out paragraph (a).
Schedule 2, page 38, line 44, leave out from beginning to end of line 5 on page 39.
Schedule 3, page 48, column 3, leave out line 10.
The Commons disagreed to these Amendments for the following Reason:—
Because it is desirable to bring to an end as soon as practicable the charging by education authorities in Scotland of fees to parents for the education of their children in the limited number of schools where this practice still obtains.
LORD HUGHES: My Lords, I beg to move that this House doth not insist on its Amendments Nos. 1 to 5, to which the Commons have disagreed. Noble Lords will recall that the general question of fee-paying in education authority schools was fully discussed in this House in Committee. The point at issue now is whether this practice should be allowed to persist in those last few schools where fees were still charged last November. The Government remain firmly of the opinion that it is now time to put an end once and for all to fee-paying in education authority schools in Scotland. This is the reason why the Commons do not agree with the Lords in these Amendments.
My Lords, I do not think I need rehearse the arguments which I put to your Lordships during the earlier stages of our proceedings. I think it is sufficient to say that I agree entirely with the Commons Reason for disagreeing to these Amendments, and I hope your Lordships will not insist on the Amendments to which the Commons have disagreed. I beg to move.
Moved, That this House doth not insist on its Amendments to which the Commons have disagreed.—(Lord Hughes.)
LORD DRUMALBYN: My Lords, I do not propose to make a speech about this matter—the noble Lord has not done so—but I do not think I can let this pass without making at least this point. We have made the views of this House in this matter abundantly clear, and we can only regret that the Commons disagree with our views, or at least the majority of them. This seems to us to represent a victory for theoretical conformity or uniformity over the express views of the elected members of the people of Edinburgh and Glasgow, the only two education authorities concerned.
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The noble Lord talks about putting an end to this once and for all. I can only reiterate the pledge that we have given: that when the Party to which I belong is returned to power we shall restore the position to what it is now, if it is practicable to do so and, of course, if the education authorities so desire.

LORDS AMENDMENT
[No. 6]
Clause 1, page 3, line 15, leave out subsection (3) and insert—
"(3) Notwithstanding the provisions of section 3 of the principal Act (as set out in subsection (1) above) where—

(a) an education authority have, at any time in the year ending with 1st August 1970, provided school education in any school under their management for an out-with-area pupil and have charged fees in respect of that education, and

(b) the said pupil is on 1st October 1970 in attendance at a class in a secondary school, or in the secondary department of a school, under the management of that education authority,

the said education authority may charge fees in respect of any school education provided by them for that pupil in any school under their management at any time after 1st August 1970 when he is an outwith-area pupil:
Provided that the education authority shall not have power under this paragraph to charge fees in respect of education provided by them for any pupil if a contribution in respect of such provision is payable to them by another education authority.
In this subsection 'outwith-area pupil' means, in relation to any education authority, a pupil who is not deemed to belong for the purposes of section 24 of the principal Act to the area of that authority."
The Commons agree to this Amendment but propose the following Amendment thereto:—
Line 2, after "above)", insert—

"(a) the power to charge fees in public schools conferred on education authorities by the proviso to section 1 (3) of that Act (as originally enacted) shall continue to be available to, and may be exercised by, education authorities after the commencement of this Act, so, however, that this paragraph shall cease to have effect on 1st August 1970;

(b)".

LORD HUGHES: My Lords, I beg to move that this House doth agree with the Commons in their Amendment to the Lords Amendment No. 6. The Amendment which is set out in italics on the Order Paper restores to the Bill

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subsection (3) of Clause 1 in the form in which it originally left the Commons. The Lords Amendment, which I would call the outwith area pupils Amendment, replaced this subsection with a new one. Both subsections are needed—that is, the original Commons subsection and the Lords Amendment—if fee-paying is to be abolished. The effect of the Commons Amendment is to postpone the abolition of fee-paying until August 1, 1970. If it were not made and the other provisions for the abolition of fee-paying were allowed to stand, fee-paying would be abolished one month after this Bill was enacted. That, of course, is not the intention, because it is considered desirable to give the authorities concerned, and especially Edinburgh and Glasgow, a full year to make the necessary adjustments to their schemes of educational provision. The effect, therefore, of the Commons Amendment to the Lords Amendment is to put the position back of giving that year's grace. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment to the Lords Amendment.—(Lord Hughes.)
LORD DRUMALBYN: My Lords, 1 think that the history of this matter is that we moved this Amendment as a consequential Amendment to one of the Amendments that we carried; and I suppose inadvertently it was not moved back—although I do not suppose, as things then stood, it could have been moved back. This Amendment is in a sense a consequential Amendment to the Commons disagreeing with Amendments Nos. 1 to 5. May I ask a question about the drafting? It seems to be left in a slightly peculiar way. As the clause stands with the Commons Amendment inserted the position is that we now have "(a)" and "(b)" and "(b)" will then start with the word "where". Then we have another "(a) and a "(b)". I suppose what will happen is that we shall again have the word "where" and then a heading (i) and a heading (ii) and so on. It looks a little peculiar. I think that is what happens.
LORD HUGHES: My Lords, I had hoped that the noble Lord would not notice that. I ought to have known better. I also could not understand it; but unfortunately at the time when I
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looked at it there was no one I could ask. It looks as though "where" either got in the wrong place or was left in inadvertently. But the mysteries of draftsmanship I have long given up hope of understanding. I have not the slightest doubt that the draftsman is right and the noble Lord, Lord Drumalbyn, and I are equally wrong. But I cannot say where we are wrong. I shall have to hope that they are right and we are wrong.
LORD DRUMALBYN: My Lords, I have not complained that anyone was wrong. I merely asked whether what seemed to be the only possible explanation was the right one, otherwise there was something wrong with it.
LORD HUGHES: My Lords, I thought that that was what I had said in slightly different words.

CARDIFF CORPORATION EILL ESSEX RIVER AND SOUTH ESSEX WATER BILL LONDON TRANSPORT BILL
Returned from the Commons with the Amendments agreed to.
SAINT SAVIOUR, PADDINGTON BILL
Returned from the Commons with the Amendment agreed to.
BRADFORD CORPORATION BILL [H.L.]
Returned from the Commons, agreed to, with Amendments: the said Amendments considered and agreed to.