HL Deb 28 July 1976 vol 373 cc1437-55

7.17 p.m.

Baroness PHILLIPS

My Lords, I beg to move that this Bill be now read a second time. As one who has always been concerned at the weight of legislation which we have to deal with in both Houses at this time of the year, I feel it is my responsibility to explain to your Lordships why yet another Bill is brought before you for consideration and, I hope, acceptance.

Sadly enough, domestic violence is not a new thing. The Victorian and Edwardian novels give us a very graphic picture of the brutal husband and father; but if we can believe the records of that time, the type of people who behaved in this way seemed to be more limited. Sadly, today it extends over all classes in society and all too often a man who appears a normal, reasonable person outside his own home is a very different individual within the confines of his own domain. If any of your Lordships could bear to read some of the evidence given to the Select Committee on Violence, they would understand exactly what I mean.

Working, as I do, in a women's organisation, I have met all kinds of women's problems; and this has been one of them. There are some very sad and disturbing cases and some women have been ill-treated over long periods of years. While one may well ask why they do not leave their husbands, the next question would be: where would they go? It is only recently that certain enlightened and compassionate people have attempted to set up centres where they can at least find some kind of refuge. I am very touched this evening because I have received messages of good wishes from so many of these centres in London—a cry from the heart, my Lords.

Your Lordships may well ask why it is necessary to have a Bill covering these unfortunates. Can they not get redress already under the existing law? At present, if a woman is beaten or assaulted by her husband, she must first start divorce or separation proceedings, or bring a charge, before she can get an injunction against him. I hasten to say that of course this Bill is not meant to protect only women, but I have not so far heard of a case of a battered husband. If they exist, they have not come forward.

At the time of probably having been beaten, assaulted and thrown out of the house, bruised and frightened, the last thing a woman wants to do is start the complications of a divorce or separation proceedings. So Clause 1 gives her the right to obtain an injunction on a straightforward application. It gives the county court wider powers to grant matrimonial injunctions, enabling the spouse or co-habitee to obtain an injunction restraining the other from using violence against him or her, or against a child living in the house, or to exclude the other from the whole or part of their home, without having to join the application for an injunction, as was previously the case, to an action for damages for assault or a petition for matrimonial relief.

Clause 2 provides that where a judge issues an injunction ordering a spouse, or a cohabitee, not to behave violently towards the other, or to a child living with the other, or to vacate or stay away from the dwellinghouse, he may attach to the injunction a power of arrest. Any constable who has reasonable cause to suspect that the respondent has disobeyed the order by using violence against the other party, or by entering the house or the prohibited area, may then arrest the respondent and take him or her before a judge to be dealt with. A person arrested in this way must be released if he cannot be brought before a judge within 24 hours.

Clause 2 seemed to cause the most discussion in another place, and it was suggested that it would add to the work of the police. I have the greatest admiration and respect for our police force and I should be the last to want to add to their already heavy load of duties. But I suggest, quite seriously, that this clause should simplify the situation when a policeman has been called to the scene of an assault on a woman. As it was explained by the Minister in the other place, under this clause the police station would probably be one near the home of the victim and the policeman would know whether an injunction had already been granted.

Clause 3 gives the court power to order a spouse, who is the sole owner or tenant of a house, to vacate it upon the application of the other spouse in appropriate circumstances. This was one of the "slip-ups", to use layman's language, in the Matrimonial Homes Act 1967 and puts right a fairly simple situation. Clause 4 applies where the legal interest in the matrimonial home is jointly owned by the husband and the wife. It enables a court in such circumstances to make the same kind of order—namely, one restricting one party's occupation of the home— as it can make under the Matrimonial Homes Act 1967, when one party owns the legal interest and the other does not.

The last clause limits the application of the Bill to England and Wales, because Scottish law has to be dealt with separately. Perhaps it is too much to hope that there are no people in Scotland in need of the law; I suspect that there probably are some such people. The Select Committee made about 28 recommendations, and obviously this Bill is exactly as it was described in another place; that is, "a tiny scratch on the surface". The same Member said that it was not inadequacies in the law that caused social evils, and I am sure we all agree that that is true. But it seems equally important to have laws which protect the victims of social evils while seeking to change the conditions which create them. On behalf of the many suffering women, may I ask for your Lordships' support and acceptance of this Bill? My Lords, I beg to move.

Moved, That the Bill be now read 2a.—(Baroness Phillips).

7.25 p.m.

The LORD CHANCELLOR

My Lords, it is a sad fact that the famous question, "Have you stopped beating your wife?" is no longer a matter for jesting, but points to a situation where greater help from the legal process is called for. This Bill seeks to provide that greater help, and I should like to congratulate my noble friend Lady Phillips on her skill in presenting it to your Lordships. It is a short Bill but it is full of legal technicalities which she has explained with admirable clarity and, if I may say so, brevity, and I shall try to follow at least in the latter regard, even if I cannot accomplish the former.

I hasten to say at once that the Government wish the Bill well, and I invite your Lordships to give it a Second Reading. I think it is useful to set the Bill in context against the background of the existing law and I should like, as Lord Chancellor, to dispel any impression that the victims of domestic violence cannot get redress speedily under the law as it is at present. They can, but the procedure is not as simple and straightforward as it ought to be, and this Bill will seek, through Clause 1 in particular, to remove some of the procedural difficulties.

Once a complaint of domestic violence has been made to a court which has jurisdiction to deal with it, matters proceed very swiftly and protection in the form of an injunction can be quickly provided. A judge can always be reached in an emergency to deal with urgent matters such as domestic violence at any hour of the day or night, so that he may grant an injunction or make such other order as may be necessary. Here, as in habeas corpus proceedings, judges make themselves available. I remember on one occasion, at about 11.30 at night, knocking at the door of a judge in Hampstead to obtain the necessary authority to proceed. It very rarely takes more than three hours from the time when the applicant arrives at the court office to the granting of an injunction, even when the application is made out of office hours.

This Bill will not alter these arrangements or the speed at which an application is dealt with, but Clause 1 will simplify the process of application, as my noble friend said. In addition, it will relieve a wife of the need to make up her mind to start actual divorce proceedings, when she may not be in a condition to make a considered, rational judgment about divorce. And in the cases where the parties are not married, a woman will not have to bring an action for damages which she may not really want.

It might be suggested—it has not been suggested by my noble friend—that to extend the Bill to cover the cases of men and women who are not married, but are living together as husband and wife in the same household, in some way devalues the institution of marriage. I do not believe this is so. Those of your Lordships who have read the Select Committee's Report will know of the horrifying acts of violence which occur within the home, as my noble friend has said. This situation may arise whenever people are living together, whether or not they are married. Strengthening the law to deal with violence in these cases does not, in my view, debase marriage at all. It accords with the human needs of the situation as it may exist in fact, and there is a need for women in such relationships to be protected.

The Bill also protects the children. Alas! they, too, are often violently assaulted, and to protect them is the least we can do. Incidentally, as my noble friend Lady Phillips pointed out, the Bill also protects the battered husband, though happily he is a rare bird. Such cases do occur from time to time, as I have seen in the courts; but essentially I am afraid that it is the violence of the male that is really at the root of the trouble.

It may be useful if I illustrate the size of the problem with which the Bill seeks to deal. A recent survey of matrimonial injunctions showed that 252 such applications were made in one month. Practically all of them involved physical violence to the person, and the very large majority related to couples who were still married. From this sample we can reasonably expect that about 3,000 of these emergency applications are made each year. The Select Committee said that the evidence they had indicated that perhaps 5,000 wives are assaulted each year, out of a figure of 680,000 married women. By no means every one of these women will seek an emergency injunction, so there is some correspondence between the figures of the Select Committee and those of my own Department. When one considers that many of these thousands of cases involve quite serious assaults, then I think there can be little doubt that there is a problem which needs to be dealt with.

Clause 1 refers to the county courts. It does not refer to the High Court, because it is unnecessary that it should do so. The jurisdiction of the county courts is an entirely statutory one, so that if it is to be extended, as in this Bill, legislation is needed. The position is different in the High Court, where although jurisdiction exists to grant an injunction in the absence of a claim for any other relief, the practice of the High Court has been only to grant matrimonial injunctions when they are ancillary to other matrimonial proceedings. This practice can be altered by an amendment to the Rules of Court, and I can assure my noble friend that I intend soon to invite the Supreme Court Rule Committee to consider such an amendment.

Turning now to Clause 2 of the Bill, I should like to explain to your Lordships why the Government support a provision which admittedly will impose a further duty upon the police. In most cases a court injunction is obeyed; but if it is not, the court must act to enforce its orders. The breach of the court's order must, of course, be reported back to the court. This means that a woman who has been subjected to a violent attack must go back to the court and make an application for her husband to be brought before the court to show cause why he should not be punished, usually by imprisonment, for breach of the court's orders. In the most obvious and flagrant cases the court may be prepared to make an order for committal in the husband's absence. But the courts are reluctant to make such a drastic order in a summary fashion; it is usually necessary to serve the husband with a summons to appear in court. Until an order for committal is made, a violent husband will remain at large and his wife will be at risk of further attack by him. By conferring a power of arrest on the police on reasonable suspicion that there has been a breach of an injunction of the kind the Bill contemplates, the clause breaks new ground, but I believe that it will make both enforcement and protection more effective.

The Select Committee heard a great deal of evidence on the attitude of the police to domestic violence. It is a difficult decision for a policeman to make when he is required to draw the line between a criminal offence or a civil matter concerning a husband and his wife, when a dispute occurs in the matrimonial home. I cannot claim that this clause will make the job of a policeman easy, but it may well make it easier than it is now. He will have a power of arrest which has been given to him by a judge for a specific event and he will be relieved of the difficult decision which he would have to make of his own judgment were he to make an arrest under the criminal law. The clause will involve the police in matters of civil law to a greater extent than before, but given the difficult situation with which the clause deals, the Government are satisfied that such a provision is appropriate.

As my noble friend has explained, Clauses 3 and 4 of the Bill—

The Earl of MANSFIELD

My Lords, I wonder whether I might interrupt the noble and learned Lord at this point as he is passing to a new clause. He will not be following me; unusually I shall be following him. First, can the noble and learned Lord assure the House that the police authorities have been consulted in regard to Clause 2, and secondly, that if the police authorities have been consulted, they have given at least some kind of acquiescence to this clause which, as the noble and learned Lord himself has said, breaks new ground?

The LORD CHANCELLOR

My Lords, I think that the answer to the noble Lord's question is that the police have been consulted. The provision to which I have been referring is not opposed either by the Police Federation or by the Association of Police Superintendents, provided that it is drawn in terms which give to the police constable a clear discretion as to whether or not he may arrest a person and as to the situation which must exist before the power of arrest arises. On the other hand—and I must say this frankly—the Association of Chief Police Officers is not convinced that a change in the law on these lines is essential. However, the Association accepts that the extra burden on the police is not likely to be large and it is sympathetic to the desire which lies behind the Bill to protect women and children who are subjected to violence. That is the best information I can give to the noble Earl. It is reasonably reassuring that we shall have police support for what the Bill intends.

I was about to turn to Clauses 3 and 4 of the Bill which, as the noble Baroness, Lady Phillips, has already explained, are concerned with rights of occupation in the matrimonial home. They make changes to the scheme of the Matrimonial Homes Act 1967. These changes, however, are in accord with the broad approach of reform in the field of matrimonial powers, which is to enable the court to do broadly what is right between the parties to a matrimonial dispute. Therefore, looking at the Bill as a whole, I believe that it makes worthwhile proposals for the sad matter of the protection of the victims of domestic violence. I believe that the proposals enable the courts more easily and more effectively to do justice between the parties to disputes involving the matrimonial home and violence within the home itself and, as I have said, I hope that your Lordships will give the Bill a Second Reading.

Lord DE CLIFFORD

My Lords, before the noble and learned Lord sits down, may I ask him a question? I am not quite clear about one thing that he said, which was that as the law stands at present there is cover but that this Bill is a great help towards improving it. Does the present law cover the cohabitee as well as the normal matrimonial home?

The LORD CHANCELLOR

My Lords, I am not sure that it does, and I should like to have notice of that question. Any violence by one person against another can be brought to the attention of the criminal courts. To that extent everybody is protected, I suppose. I think, however, that it may well be that the Bill goes a little further in its provisions in respect of spouses living together than the law provides for at the moment. However, I take notice of the question, and perhaps I may either write to the noble Lord or refer to it at a later stage. I am sorry that at the moment I cannot give an answer with absolute confidence.

7.39 p.m.

The Earl of MANSFIELD

My Lords, I should like, if I may, to congratulate the noble Baroness, Lady Phillips, on the way in which she has introduced the Bill. If my welcome for the Bill is only lukewarm, that is not in any way meant to detract from anything that the noble Baroness has said—nor, indeed, from the cause which she espouses. All noble Lords who have had anything to do with the question of unhappy spouses or cohabitees—if we must use that inelegant expression—are appalled at the inhumanity which man frequently shows to woman. For two unhappy years during the earlier part of my career at the Bar I was in divorce chambers and I used to spend every Saturday afternoon, for a modest fee, sorting out the domestic difficulties of people who came before various magistrates' courts alleging that they had been shown violence by each other. A distressing and an extremely difficult task it was, and therefore everybody will be in sympathy with the objects behind this Bill.

Whether in fact—as the noble Baroness was quick to say when she justified her Bill at the beginning of her speech— this is a justification for adding a further load to our already strained Statute Book I think is a matter for debate, or at least for some consideration. As the noble and learned Lord the Lord Chancellor was quick to point out, in fact any remedy which this Bill seeks to produce is already available in one form or another, although obtaining it may not necessarily be very easy. Perhaps in my ignorance 1 might answer my noble friend Lord de Clifford: if somebody beats his mistress she can sue him in court for battery and obtain an injunction, but I do not suppose she would be well advised to try because it would be a slow, tedious and extremely expensive process.

So when one is faced with this Bill one has to ask oneself, looking first at Clause 1, is there justification for it? Can a battered wife—and I use that term because it is the most convenient— already obtain a remedy without this new form of legislation? She can of course go to the magistrates' court and see the probation officer or a solicitor and take out a summons. Frequently, because of the congestion in magistrates' courts, it takes a long time to be heard. It is not always a very satisfactory remedy even if she manages to take out her summons. In my experience the courts try—at least in the case of wives—to dissuade them from going to law, and certainly so far as the criminal law is concerned it is not really a very satisfactory method of trying to stop such conduct in the future.

As has already been pointed out, if the parties are married the woman can try to obtain either a divorce or a separation order, the latter on the ground of persistent cruelty. Again I suppose it is conceivable that, although she wishes her husband to desist from ill-treating her, she still wishes to live with him, and in that case of course it would not be suitable to apply for a separation order. So one is driven to the conclusion that so far as Clause 1 is concerned there is room for this sort of remedy.

I am going into this in a little detail, my Lords, and I suppose I should justify why I am doing it on Second Reading. It is really for two reasons. First, our programme for the rest of this Session is already, apparently, appallingly overcrowded. If I may give vent to my worries and apprehensions now, it may mean that we shall not have to have a Committee stage, which I am sure would cause some sort of rejoicing in the heart of the Chief Whip. More than that, anybody who has looked at the Hansard reports of another place will have seen that this Bill unfortunately obtained only the most cursory consideration in another place.

There was there a Second Reading debate which ended in unseemly wrangling on points of procedure. A number of points were put which to my mind were never satisfactorily answered. The eventual Second Reading took place on the nod. There was a Committee stage which lasted one morning and it was attended by eight or nine Members of the other place. There was nobody on the Front Bench of the Opposition, which may or may not have been a good thing but it is a fact, and the unfortunate Law Officer, or assistant thereto, having made a mistake as to the jurisdiction of the High Court thereafter seemed to be more or less silent; at any rate he did not play a tremendous part in the further progress of the Bill. There was no Report stage and no debate on Third Reading. So the Bill comes to us, in my view, ill-considered.

If I may say so, one of the difficulties or traps which the noble and learned Lord fell into was to consider the circumstances in which this sort of relief would be sought. Everybody has supposed that this is what I might describe, if it is not falling into undue levity, as a sort of four ale bar situation. One of the parties, presumably the wife, is assaulted by a drunken, or at any rate a very angry, consort and then the question arises as to what is to be done about him. As was said in the other place, and as was related to us by the noble and learned Lord, there was then a gnat deal of talk about getting judges either out of bed or away from their firesides and obtaining some sort of immediate relief. I really wonder whether in those circumstances this would ever happen. I find it very difficult to visualise a woman assaulted, running out of the house—and it was graphically described, I think, by the Promoter of the Bill in the other place. Her first sentence was to the effect that at about that time on the Friday afternoon thousands of women were dreading the thought of Friday night. One is tempted to interpose that a good many more—hundreds of thousands, one hopes—are looking forward to it and to the weekend. But still, that is what the Promoter of the Bill said.

Is it really conceived that these unfortunate ladies are going to be able to find out the address of their nearest county court judge, obtain the services of somebody who is going to help them and in those circumstances obtain this sort of injunction? I think the answer must be, No. Certainly so far as Clause 1 is concerned, it will be obtained in normal court hours in the ordinary course of court business. Of course, I do not except from that a vacation court; it may well be that there will be a vacation court, but I cannot conceive that this will happen at what I might call late at night.

If that is so, one then has to go on to the question, what about Clause 2? As I have said, I am prepared to concede that there is a case for obtaining an injunction in certain circumstances, as laid down in Clause 1. Clause 2 which deals with attachment—if that is the right word; that is to say, an arrest in the case of a breach—I find much more worrying for a number of reasons. First, it should be remembered that if a woman obtains this sort of injunction it is a weapon which will be held over the head of her man. "The judge told you not to molest me and I will go back to him if you do", will be the cry that will ring out on Friday nights. May I say that personally I am very glad that this Bill does not extend to Scotland where I now sit as a sheriff, and I hope that my Friday nights will remain undisturbed. Assuming, therefore, that it is proper that the good lady should have this weapon, what happens if there is a further molestation or breach of the provision of paragraphs (a), (b) or (c) of subsection (1) of Clause 2? Apparently the police are going to be informed, so I assume that in every police station there will be a register of wives with injunctions and every officer will have to familiarise himself with the register and presumably will have to be prepared to keep in his mind—or certainly the station officers will have to—the name and address and something of the circumstances of those in his bailiwick who have obtained this relief. Because otherwise, if they do not keep this in their minds and there is further trouble, the arrest will not be made.

One understands that this sort of injunction will to a large extent apply in London or in the conurbations. But what happens if—dare one say it? —somewhere in the land where Members of the other place have their flats, there is trouble? Does the wife go to Cannon Row or Rochester Row? And what happens if she goes to Rochester Row when she should go to Cannon Row, and they have not got the register? This is the sort of minor difficulty which has to be taken into account, because they will not know.

Then it says here: …the constable may arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of [the] provision". Let us suppose it is not violence that the woman alleges, but that her consort, or husband, has in fact entered the matrimonial home when he has been told that he must not. What are the guidelines? If a woman goes on Sunday morning and says, "My husband came into the house last night and said he wanted to take his shirts away, because he was not going to live with me any more. I want him arrested. The judge said he would be. "Maybe that situation is twelve hours old. What would the constable do? Would he arrest, using the power given to him? Or would he say, "If your husband has got his shirts, I should be thankful he's out of the house, madam"? It is practical questions like these which have to be asked.

Supposing the circumstances are such that the officer does arrest the husband. What does he then do with him? Does he ring up the county court judge and say, "I've got Bert Bloggins here. You gave an injunction three months ago and he has come back into the matrimonial home"? Or does he try to get on to the solicitor for the Metropolitan Police, or does his superintendent do so?—or who? Bearing in mind it is a weekend and that the husband can only be incarcerated for 24 hours, all this has to be done, and the man has to be brought before the judge during this period.

My Lords, may I just say this, that in a Session when we have spent a great deal of time arguing the merits of the Bail Bill which has, to a very large extent, stopped people being incarcerated at the whim of the police, should we now pass a law that says that in fact a constable has power to lock up a man for 24 hours at the whim of an injured wife? Is that good law? I do not know, but I question it.

Another matter is this: if a wife who has been granted an injunction, with a power of arrest attached to it, and if there is further trouble, the person who is responsible for making that arrest will be the police officer. He has, if I may coin the current phrase, to make a value judgment on the merits of the situation. Occasions do arise when quarrels, and even strife, are six of one and half a dozen of another. I just query whether it is right for us to expect an ordinary young constable, faced with this sort of situation, which has nothing to do with the criminal law, to make this sort of value judgment which he will have to make.

Supposing the woman is a liar. Supposing she has held the warrant over her husband's head. Supposing he has merely been rude to her and says to her, "Go on, you wouldn't dare to get the police", and she says, "All right, I will," and she then goes off and says, "I have been caused actual bodily harm again" and it is all untrue. The husband is arrested and deprived of his liberty for 24 hours. To whom does he then have recourse? Can he sue the police officer for false arrest when he is carrying out a warrant on the orders of a superior court? He cannot sue his wife. He will not get any damages from her. That is another question.

My Lords, I fear I have taken quite a long time to criticise Clause 2. I have nothing to say about Clauses 3, 4 and 5 which to me seem an inoffensive and, indeed, quite effective way of amending the Matrimonial Homes Act. I wonder whether the noble and learned Lord welcomes the mandatory duty, forced upon him by a manuscript Amendment at the last gasp of the Committee stage in another place, to make his orders by 1st April 1977, whether or not he is ready. But no doubt he does, or he would have said so, or no doubt, if he is not so satisfied, he will invite the noble Baroness to amend the Bill in this House.

I think we are in danger of enacting a legislative nonsense. I think we—and it is Parliament I am talking about in this instance—sometimes consider the good cause with more enthusiasm than temperance, and move too quickly in trying to remedy things. 1 would have hoped that so far as Clause 2 is concerned the noble and learned Lord was speaking after me; he would have been in a position to have said either, "Yes, we take your points and will go away and consider them, and if there is any validity in them we will either desert the Bill, so to speak, for this Session, or at any rate amend the whole Bill so that the matter is more satisfactory", or alternatively, at least go to allay the feelings and fears of noble Lords that in fact, as I have said, too much is being tried too fast.

But there it is. It may be we have a few weeks now—not so many as I should have liked, but a few—until we meet again. So perhaps either the noble Baroness or the noble and learned Lord could write to me. Otherwise, I am bound to say that, if there is no satisfaction, we shall have to go into this matter with considerable care in Committee.

The LORD CHEANCELLOR

My Lords, with the leave of the House might I answer the point that has just been made? I have been given permission to intervene at this stage. Of course we will look at the points raised by the noble Earl. Frankly, they are the sort of difficulties the police normally encounter and, as I have indicated, they are not disposed to oppose the provisions of the Bill. My noble friend, the noble Earl, Lord Mansfield, and myself could well get together to see whether there is anything of substance which ought to be dealt with.

While I am so irregularly on my feet, may I give the answer to the noble Lord, Lord de Clifford, that an injunction may be obtained by a cohabitee by means of an action for assault, coupled with a claim for damages in the county court. But there must be a claim for damages before the injunction process can be called in aid. By reason of the terms of the Bill, an injunction can be obtained without the necessity of a joinder of an action for damages. That is the position.

7.59 p.m.

The Lord Bishop of DERBY

My Lords, there are two matters in this Bill about which I should like to speak. The first is to give a welcome to it in general terms, because it deals with the problem of seeking to relieve suffering, whose great extent has only recently come to light, and whose full extent is not yet known. For this reason, I am very grateful to the noble Baroness for her support and interpretation of this Bill. Whatever revision it may require, something of the sort seems to me to be urgently called for.

The second thing I would do is to draw attention to subsection (2) of Clause 2. This is a point to which the noble and learned Lord the Lord Chancellor has already referred, and my own conclusion is the same as his. But I feel bound to express a point of view which has been put to me very strongly. This subsection has caused disquiet because it equates spouses and cohabitors as having the same status. It is urged that it is objectionable to include extra-matrimonial relationships in a matrimonial Bill. To treat them in a legal enactment as being in practice the same as married relationships is, it is said, to undermine the state of marriage. One correspondent put it in the form, "This is another nail in the coffin of the sanctity of marriage". I have some sympathy with this approach, and I would remind your Lordships of the debate initiated a few weeks back by the most reverend Primate the Archbishop of Canterbury about the place of marriage and family life in the nation.

We seem to be presented here with a choice between two courses. If we support the Bill as it stands with this subsection, we are doing something, however slight, to undermine the stability of marriage as an institution vital to the welfare of the whole community. On the other hand, not to include those who live in a relationship of cohabitation would be to leave out those who, on the testimony of many social workers, are at greater risk in terms of domestic violence than those who are married. In making a choice, it is important to recognise that the aim of the Bill is to give easier relief than is obtainable at present to those who are brutally treated either in marriage or while cohabiting. The fact that this aim is paramount lessens the danger that marriage is being undermined. Indeed, if the dangers are greater in cohabitation, their being brought to light could well help to discourage that practice.

Compassion must be the prime consideration in legislation of this kind, and also in the making of such choice as there is over this particular point. I speak, I suppose, as the official representative of one whose sun shines on the evil as on the good, and who sends his rain both on the just and also on the unjust. God is undiscriminating in the generosity of his compassion, and so also should we be. To have two Bills to cover those who are married and those who merely live as though they are married would be unreal in a situation which calls for great compassion, and it might well do more to undermine the institution of marriage than the present Bill could possibly do, because it could be wrongly discriminatory. I support the Bill, but I think it is important to consider the kind of effect that this legislation may have in an area about which we need to be vigilant.

8.4 p.m.

Baroness PHILLIPS

My Lords, perhaps I may first of all thank the right reverend Prelate for his welcome to the Bill and say that I understand and sympathise with his reservations, but I feel that in this, as I think he has indicated, we must take the wider, compassionate and Christian point of view. Having made the point, I do take this as his caveat. I am deeply grateful to the noble and learned Lord the Lord Chancellor for making the very valid points about the way this law would be finally made into nuts and bolts, the amendment of the Rules of Court, Clause 1, and, of course, his very clear explanation of Clause 2. I was going to reply to the noble Lord, Lord de Clifford, but I believe he has now had two replies, so I will not add to that.

It seemed to me that the only really strong opposition came from the noble Earl, Lord Mansfield. I should not like to be unkind to him, but I felt that he somewhat made light of the terrible sufferings of these women. He also, in a way, I felt, patronised the police. This may be only an impression coming through to me. The local officer does know his people. I sit in a magistrates' court; one of the things that impresses one most of all about police officers is the way that they give their evidence about individuals, whatever they are charged with; the way they speak and say, "I know that this man, when he says this, means it". He speaks with some knowledge. So I do not think there is the danger that the woman will be confused and running to the wrong station. In any case, there are reservations which will prevent this from happening, in relation to the arrest, which I can let the noble Earl have in writing; I am a little nervous about giving it in the House in case I am not strictly correct, and therefore I would like to do it in writing.

I hope the noble Earl will also take up the invitation. I would be happy to meet him with the noble and learned Lord on any occasion, whether to discuss the Bill or not. It is important that it should go through unamended. Otherwise, as I am sure the noble Earl appreciates, it will not go through, and I know he would not want that.

Can I appeal to him this way. If it does nothing to help, it surely does nothing to hinder. He suggests this might be used perhaps on the whim of a wife. I know he has seen and heard stories in the divorce court, but has he seen the terrible injuries that some women suffer? When he speaks about the whim of a wife, and the man coming in to get his shirts, I cannot think any police officer will accept such flimsy evidence, and indeed he is empowered not to.

The Earl of MANSFIELD

My Lords, the noble Baroness asks me the question and puts it on a personal basis, and I shall reply. During the period that I was at the Bar I prosecuted and indeed defended cases, which ranged from common assault in the courts where the noble Baroness sits, up to murder in the Central Criminal Court. I have seen and heard, and, as I said, represented these ladies in the civil sense. I know very well what happens to them and how they feel.

Baroness PHILLIPS

My Lords, I am very grateful to the noble Earl for explaining that, because I thought he rather suggested that this might be utilised lightly. I think he used the phrase, "on the whim of a wife", who would hold this over her husband. I was not quite certain when he said he looked forward to the weekend. He has every right to look forward to the weekend, unless he is going to go home and beat his wife, in which case I hope he does not look forward to the weekend.

He also suggested that it would be necessary to get the judge out of bed. I think he is overstating the case. The speed with which one operates is not necessarily immediately at that point of time. The next morning is still the time when the woman, having left the house, wants to take action, but at the present time is able to take action only in certain ways. I understand and appreciate his reservations. I would be the last to desire that anybody should be arrested without having committed any crime and who afterwards was found to be innocent. In relation to the policeman having to make his own judgment, if I may refer to my humble courts again, in the case of a fight in the street it always seems to me that if both parties complain that the other started it but one has a large bruise on his head, the policeman must, of necessity, have had to make some value judgment at some point of time. While a violent assault in the street between two strangers can be dealt with, all too sadly a violent and horrible assault between two parties who live together may well not be dealt with, and all we seek to do is to make this possible. If there can be any easement of the terrible pain which women endure, I am quite certain that the noble Earl would be the last to want to prevent that happening.

On Question, Bill read 2a, and committed to a Committee of the Whole House.