Clause 1. — (Amendments of principal Act as to grounds on which orders may be made.)

Orders of the Day — Summary Jurisdiction (Separation and Maintenance) Bill. – in the House of Commons on 4th July 1924.

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Photo of Mr John Whitley Mr John Whitley , Halifax

The first Amendment on the Paper, in the name of the hon. Member for Nuneaton (Mr. Willison)—in page 1, line 14, after the word" repealed," to insert the words where at the time when such order, or orders, is made the married woman is residing with her husband the order, or orders, shall not be enforceable whilst she so continues to reside with him"— I have been unable to read into Clause 1.

Photo of Hon. Sir Malcolm Macnaghten Hon. Sir Malcolm Macnaghten , County Londonderry

I beg to move, in page 1, line 19, to leave out from the word "accordingly" to the end of the Sub-section.

This Sub-section introduces a change in the law of a very important character, because it provides that, where the husband of a married woman has compelled his wife to submit herself to prostitution, she should be entitled to apply under the Bill for an Order which has the same effect as a judicial separation. That is rather a striking change in the law, and I presume that the intention is that the applicant at the time she makes the application should have abandoned that course of life to which she was unfortunately compelled by her husband. I cannot suppose it is intended that a married woman who is living in a state of prostitution should be entitled to go to the Court, and obtain a decree of separation from her husband. Persons who come for these decrees should come, as they sometimes say, with clean hands, if not with clean hearts, and it is not right that a woman living in prostitution should go to Court, and get such an Order. That being the intention of the Bill, I presume, the first part of the Sub-section has a good deal to be said in its favour. The use of the word "compel" is right in this connection, because the word "compel" necessarily involves that the wife has been driven into this evil course against her will—that she has been forced by the treatment she received at the hands of her husband to go into a life of prostitution.

But when we come to the second part of the Sub-section the provision is made that certain conduct on the part of her husband should be deemed to have compelled her to submit herself to prostitution. It ought to be pointed out that, when an Act of Parliament says that something is to be deemed to be something else, it means that that is not something else, and it requires the force of an Act of Parliament to say that it is to be so deemed. Therefore, in this second case, which is provided for in the latter part of the Sub-section, you have in fact got rid of the use of the word "compel" and of all that it implies, and you are really dealing with a case, not where an unfortunate woman has been forced against her will into prostitution, but where, as it sometimes unfortunately happens, she herself is not wholly unwilling to adopt that course. If that is the true meaning of these words, in such cases the woman ought not to be allowed to go and get a Separation Order against her husband. There is a very grave objection to the words in that they are so vague and indeterminate. This procedure is a procedure before Courts of Summary Jurisdiction; it is before any Court of Magistrates throughout the land. It is of vital importance that the words of an Act of Parliament should be plain and clear, but when you are dealing with Courts which consist, not of trained and skilled lawyers, but of laymen, it is all the more important that the words should be clear and unambiguous, so that those who are administering, the law may know what it is that they are entitled to do.

Sometimes politicians criticise judges, and some people think it is unfortunate. Sometimes judges criticise politicians, and complain that Parliament passes laws which are unintelligible, or very obscure. I am sure the House will agree that it is very desirable that we should, if possible, make our meaning plain and express it by clear words. I invite the House to consider what are the words here used. We are dealing with the case of a married woman who has submitted herself to prostitution. It has been provided that she is to be deemed to have been compelled to take that course in the following circumstances: where her husband has, in the opinion of the Court, been guilty of such conduct as was likely to result, and has resulted, in her so submitting herself. If you take the case of a woman who has submitted herself to prostitution, I think it may fairly be presumed that her married life has not been a very happy one, and in such cases the general opinion, I think, is that both sides are to blame. It is very seldom that you would get an unhappy married life where one of the parties was absolutely blameless in the sight of God and man.

Therefore, I am entitled to assume that in the case which is being supposed of a married woman who has submitted herself to prostitution, the husband has not been all that a, husband should be. He may have had a bad temper. He may possibly have, from time to time, indulged in intemperance, he may have wandered after other loves, he may not have dressed himself or behaved himself to her liking. He may have been guilty of all sorts of small or large things which may cause friction between husband and wife; and if he has done that, surely it may fairly be said that his conduct helped to bring about the result of the woman submitting herself to prostitution. Indeed, I think I may carry the argument further, because I was assuming that the husband had been guilty of some misconduct. But let us take the classic case of King Arthur and Queen Guinevere. There are some people who hold that it was the perfection of King Arthur that, I will not say compelled, but did something to impel that unhappy lady to the tragedy of her life. Therefore, even in the case of a perfect husband, it might be said that he had been guilty of such conduct as to lead to this result.

Photo of Mr Leifchild Jones Mr Leifchild Jones , Rushcliffe

Would the hon. and learned Member say that it is a relevant case?

Photo of Hon. Sir Malcolm Macnaghten Hon. Sir Malcolm Macnaghten , County Londonderry

It is quite true that the lady in that case did not take to a course of prostitution, but she was guilty of misconduct, and there are people who hold that her misconduct was due to the immaculate perfection of her husband. Most of us, however, are frail mortal men, who cannot hope to attain the perfection of King Arthur, and in the case of most people it would be fair to say that the man's conduct was such as, in the particular circumstances, and dealing with the particular woman, would be likely to result and in fact resulted in her submitting herself to prostitution If that be so, are not these words too vague? They really might apply and will apply to practically every case where a married woman has submitted herself to prostitution. I respectfully submit they are too wide, and should not be allowed to stand in the Bill.

Photo of Sir Alan McLean Sir Alan McLean , Norfolk South Western

I beg to second the Amendment.

This Sub-section first of all defines an offence, and I think all hon. Members will agree there can be no greater moral offence than the offence with which it deals. Having defined the offence, you then go on to say in effect, "We have not made our net sufficiently large" and then you proceed to enlarge the scope of your net, not, by making the net itself bigger, but by looking at the results and by saying that any action, or any failure to take action resulting in the offence, shall receive the same punishment. I do not think it can be contended that you could apply that principle to any of the great offences such as murder. Murder undoubtedly results in the death of another person, but would any hon. Member bring forward an amendment to say that any action taken by a man which results in the death of another person should have the same punishment as murder?

Photo of Mr Frederick Pethick-Lawrence Mr Frederick Pethick-Lawrence , Leicester West

That is the law at the present time.

Photo of Sir Alan McLean Sir Alan McLean , Norfolk South Western

The hon. Member will have an opportunity presently of showing us that a man who has taken action or who has refused to take action is guilty of murder if his action or his refusal leads to the death of another person. It seems to me a most pernicious form of legislation. We have defined the offence perfectly clearly and have said that where a man compels his wife to submit to prostitution, she is to have the benefit of the Clause; out the Sub-section then seems to me to try to pre-judge the decision of the Court in the use of the word "guilty" We say. "where the husband is guilty" and surely that pre-judges the question. To say "where he has conducted himself in such a way" would be sufficient and the whole or the second part seems, on both grounds, to be a most pernicious form of legislation which I hope the House will not support.

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

If this Amendment be carried, we might as well strike out the whole of Sub-section (2) but I trust the House will not accede to the plea put forward by the Mover and Seconder of the Amendment. The object of the Clause is to give an additional cause whereby a woman can obtain a separation order. The first words of the Clause are Where the husband of a married woman has compelled her to submit herself to prostitution, and if we do not add the amplifying words at the end, it will mean practically that actual physical compulsion will have to be proved. That is not what the Clause is intended to mean. The Clause is intended to meet those cases where the husband by his conduct makes it almost inevitable that the wife should submit herself to prostitution, and if these words be cut out, the whole object of the Clause is defeated. I ask the House to leave the Clause as it is. This Bill was originally brought up by the National Union for Equal Citizenship. Then it was a much larger Bill, but the Bill before us to-day is one which had the approval of the Conservative Government and the previous Coalition Government, which has been carefully scrutinised by the Home Office, and embodies a more or less agreed view as to the proper steps to be taken for the protection of women in these cases.

Photo of Mr James Cassels Mr James Cassels , Leyton West

I venture to disagree entirely with the observations of the Chancellor of the Duchy who has just spoken. In my opinion the division of the Sub-section into two separate parts causes it to be contradictory. If hon. Members look at the first part of the Subsection they will see these words: Where the husband of a married woman has compelled her to submit herself to prostitution, the married woman shall be entitled to apply for an order or orders under the principal Act, and that Act shall have effect accordingly. That provides a new ground whereby a married woman may go to a Court of Summary Jurisdiction, and obtain the benefit of a maintenance order against her husband. It is correct that that should be so, but where you are going to add a Sub-section, to say that the word "compelled" means that the husband has, in the opinion of the Court, been guilty of such conduct as was likely to result and has resulted in her so submitting herself, then you are putting on to a Court of Summary Jurisdiction the task of deciding whether the conduct, not the compulsion, of the husband has been such as would be likely to cause the wife to lead a life of prostitution. If that be so, the Courts of Summary Jurisdiction are going to listen to a variety of evidence, such as that, at an early stage of their married life, the husband and the -wife ceased to occupy the same room, evidence that the husband was continually devoting himself to a life of pleasure, and neglecting his wife, evidence that the wife was left to go about her own ways, and lead her life as she thought fit, and that there was no control over her movements, such as one anticipates does exist in the relationship of husband and wife. Then you would have this Court of Summary Jurisdiction, perhaps represented by a large number of Justices of the Peace, who, after they had listened to the evidence, would retire into their room to consider whether the evidence which they had heard was evidence of conduct likely to cause a wife to go on to the streets, and to lead a life of prostitution.

That is not the position of affairs which is desired, either by the group which supports this Bill or by the policy that underlies the Bill. The position is that, if a husband has compelled his wife to go on to the streets to lead an immoral life—that is to say, if he is a man who dislikes work, who does not desire to maintain his wife and family, who, perhaps as the result of a drunken life, says to his wife that the only means whereby money can be provided for the maintenance of the home is that she herself should go on to the streets and become a prostitute—then that woman is entitled to go to the Court, and say "My husband has thrust me on to the streets, and I apply for the protection of the Court. "This is an offence well known to the law, such as living upon the immoral earnings of a woman, that would cause the husband to be brought before the Court. In a case of that sort, you have husband and wife coming before the Court, where the charge against the husband is that of living upon the immoral earnings of his wife, and the natural result of the conviction of the husband for such an offence as that would be that the wife would be entitled, under this Clause, to go to the Court and say: "He has been convicted of living upon my immoral earnings; he compelled me to go on to the streets, and lead a life of prostitution, and I ask for an order of maintenance against him under this Act."

If you are going to stretch that, and to say that the Justices, in deciding a matter of this sort, shall go into all sorts of side issues, as to whether the conduct of the husband was "likely to result," what on earth does that mean? In the infinite variety of circumstances that make up married life, you can discover all sorts of conditions which may well be worthy of the consideration of a Court of Summary Jurisdiction as to whether or not the conduct was "likely to result" in a woman going on the streets. Then the Clause goes on— and in fact has resulted in her so submitting herself. I do not suppose there is any married woman who goes on the streets who would not find some reason or other whereby she could blame her husband for the life she was leading. Married women usually blame their husbands for most things, and the natural result is that married men blame their wives for most things. At any rate, if you are going to be serious with this Bill, in the desire to provide for married women a new ground whereby to make a claim for maintenance, let it be definite, and not in the vague words of the second part of this Clause. Let it be definite that the Justices have to decide whether there is evidence before them that the wife has been compelled to go on to the streets by the husband. If they are satisfied of that, let them make the order, but if they have only to decide whether the conduct was such as to be likely to cause the wife to go on to the streets, and in fact has caused her to go on the streets, in my opinion, this second part of the Clause destroys the effect of the Bill, and is unnecessary if you consider the principle of the Bill.

Photo of Mr James Wignall Mr James Wignall , Forest of Dean

I have heard with great interest the speeches delivered from the other side of the House in favour of the Amendment. I am opposed to the Amendment, because I read the Clause in two parts, one of which is certainly dependent upon the other. Courts of Summary Jurisdiction are benches composed, not of legally trained men, although there are sometimes a few of them who go there, but at least they are practical men and women who have had some experience of sitting with legal gentlemen, and I have always known them to give at least careful consideration to matters that come before them. Then they are guided by the Clerk of the Court, who undoubtedly is a highly trained legal gentleman, and on points of law no Court of Summary Jurisdiction would attempt to settle the question without careful consideration and consultation with the Clerk, who on legal points would guide them. So that I have no fear, from my knowledge and experience, of matters of this kind coming before a Court of Summary Jurisdiction. I read the Clause as meaning, in the first place, where there is no doubt or question about it. It may be that there are convictions known to the police and the people concerned, and the compulsion is clear and definite. But in the second part of the Clause, it says that the husband has, "in the opinion of the Court," and that is the key-note of the whole Clause. The case is thoroughly investigated, the statements are made, and the Bench themselves have to decide on the evidence received whether there has been some compelling cause or some act of which the husband has been guilty that has driven the wife into this unfortunate position.

It is easy to exaggerate these things, and to draw pictures of what might or might not happen. It is easy to magnify the possibilities that are involved, but I am going to come down to the practical, matter of fact position which would be occupied by a Court of Summary Jurisdiction. They would have to take the evidence submitted to them, and if they were satisfied that, in their judgment, the case had been proved, the woman would and should get the benefit, I will not say of the doubt, but of the evidence submitted to the Court. Therefore, if the second part of the Clause be omitted, the Clause loses its value, and the whole thing becomes distorted. I oppose the Amendment, and hope the House will accept the Clause as it stands, because the best legal minds of the country have considered the Clause. The people who have devoted their lives to what I will describe as the emancipation of woman and the defence of womanhood—the best minds of the country—have been devoted to it, have considered it, and agreed to it. Therefore, I hope and trust that this House will accept the Clause as it stands and reject the Amendment.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

I cordially agree with the hon. Member for the Forest of Dean (Mr. Wignall) in this matter. I hope the House will reject this Amendment. There is one thing which I cannot quite follow, though, in what he said. He seems to think that this Clause as drafted is almost ideal in its language, but my reason for wishing that this Amendment should be rejected is that I regret that an Amendment preceding this on the Paper, to alter the word "compelled" to "caused," was not moved. The word" compel" is a word of high import, and a word which may lead to an extremely narrow construction of the Clause. The magistrates would have to ask themselves whether the woman had been compelled, in a strictly legal sense, to go out upon the streets and offer herself in prostitution. That would be an extremely narrow construction, and yet anyone who has had any acquaintance at all with the administration of law in the police courts knows perfectly well that there are a thousand and one ways absolutely short of legal compulsion where there would be such a strong moral compulsion as only the very strongest-minded woman in the world could resist. In those circumstances, the word "compelled" standing by itself would, in my opinion, defeat entirely the object of those who are supporting this Measure.

Therefore, it is absolutely necessary that there should be some words which will mitigate the hardship of the strict interpretation of the word" compelled." I do not say that the words which have been selected are ideal, but I do say, quite definitely, that this Clause is far better with the words that are now in than it would be if those words were left out. After all, these matters are very largely interpreted in the light of the ordinary practice which is carried out today in the divorce court, and one realises that if you want to get a legal interpretation of this, if there should be at any time an appeal against the decision of the magistrates, that appeal will go to two judges well qualified to deal with this matter, namely, two judges who deal with matters of this kind in the Divisional Court. I have no doubt they will be able to give a perfectly clear and common-sense interpretation of these words. They will give an interpretation to them which will make this Clause of real value to the community, of real value to the wife, while she cannot say she has been physically compelled, can prove quite clearly that the course of conduct and treatment has been such that she has had no alternative except to take the unfortunate course she has taken. My hon. and learned Friend seems to be a little troubled about what might be done in the case of the immaculate husband. I do not think the police courts of this country are very often troubled with the case of the immaculate husband. Are we to distort and destroy this Clause, merely for the off-chance that there may, at some time or another, appear in the police courts that immaculate person, who should be preserved in the museum when he does appear? We should destroy entirely the real dignity of Parliament, if, for an odd chance of that kind, we were to destroy what will be, if the Bill be passed in these terms—although the drafting may not be ideal—at any rate, a real safety valve, and a real means of protection to women who undoubtedly need some protection of this kind.

Photo of Mr Frederick Hindle Mr Frederick Hindle , Darwen

I also invite the House to reject this Amendment. It seems to me that the word "compelled" is somewhat vague. Personally, in many respects, I should very much prefer the word "caused," as it would make this Clause somewhat similar to Sections in the principal Act, where the word is used, and, for a period of time, there have been judicial decisions which have helped as to the definition and meaning of that word. Therefore, I think in many respects it would be highly desirable to substitute the word "mused" for "compelled." I understand the previous Amendment standing in the names of the hon. Members who are promoting this particular Amendment has been passed over, and therefore I may take it that the word compelled" now stands part of the Bill. It is absolutely essential there should be some definition of what that word means in this sense, and that is where the advantage of the latter part of this Clause comes in, because, in effect, it is a definition of a reason which the Justices must take into account before they uphold that a wife has been, in fact, compelled to submit herself to prostitution.

I do not agree with the hon. and learned Member for West Leyton (Mr. Cassels) in his judgment as to the ability of the Justices to consider all the multifarious facts that will have to be considered by them in discussing any claim under this particular Clause. I would remind the House that Magistrates' Courts all over the country, every day of the year, are considering equally important and equally difficult matters of fact, especially in dealing with matrimonial questions. There is no more difficult question ever put before Justices than in these matrimonial disputes. I think I may speak with some little knowledge of the matter, because for the last 20 years I have had the privilege of advising a Bench of Magistrates on these particular matters, and I can assure the House that the attention, the care and consideration given by these Magistrates in all these cases is immense, and in no circumstances do they ever leave their knowledge of human nature behind them when they enter the Court It would be, to my mind, disastrous to leave out the latter part of this Clause, and I hope, therefore, that it will not be pressed to a Division.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

I venture to appeal to my hon. Friends to withdraw this Amendment, and, as one who has had some little experience in cases of this kind, I very heartily endorse the remarks of the hon. Gentleman who has just sat down. I suppose there are no more distressing and difficult cases than those that are, contemplated in this particular Sub-section, and I much regret that my hon. and learned Friend did not move his Amendment on line 16, because, undoubtedly, the word "caused" would be much more appropriate, and I hope those who are supporting this Bill, when it goes to another place, will, at any rate, endeavour to get that word inserted, because I am sure it would be much more satisfactory to the magistrates who have to determine the interpretation of this Clause. There is no doubt about it, in certain Courts, if you use the word "compelled," they will think some measure of physical compulsion is involved in that particular word, and it is very necessary, in my judgment, that the House should realise that in the majority of cases, I should say, it is not physical compulsion that brings about these cases, but it is conduct of another character altogether Therefore, I think that is the real reason why the second part of the Sub-section which it is proposed to delete, ought to be included. There is no doubt that in a very large number of cases the conduct which brings about this distressing state of affairs is not the conduct of a man going to strike his wife, or any thing of that kind, but a very much more deliberate, and, in many respects, devilish kind of conduct, which many of us who have had experience of these cases know about.

I do put to my hon. Friends this point also: There is no doubt about it, if this Bill gets on to the Statute Book—as I hope it will very speedily—some of these cases will be taken to the Divisional Court or the Divorce Court itself. There you have one of the most experienced Presidents sitting, whom we knew in this House as Sir Henry Duke, and with him sits another Divorce Court Judge. They will, if the necessity arises, very speedily lay down rules which would guide the magistrates up and down the country. Anyone who thinks that the vagueness of these terms may in some way be detrimental to the administration of justice may rely upon it that if there is anything of the kind the Divorce Court, which I feel, after all, is in very many respects one of the most careful courts in the country, will speedily put that side of the matter right, and there will soon be laid down a number of rulings and decisions to guide the Courts of Summary Jurisdiction.

Some reference has been made to the point as to whether this Clause is most against the husband or most against the wife. One can say this: that the position is very largely changed, because on a large number of benches of magistrates up and down the country—and I for one am glad to know it—there are many women magistrates who are sitting, and therefore you are getting—if there is any question of sex in this matter—a more balanced view in this particular connection. I hope on all these grounds that my hon. Friends will allow this Clause to remain. They certainly have, if I may say so, made very effective speeches in the suggestions that have been made, and it is a perfectly proper criticism to say that this Sub- section is of rather an indefinite character. But the difficulty is that directly you begin to define matters of this sort you get into very deep waters. The more you attempt to define these things the more likely you are to limit them, and make the administration of justice difficult. On all these grounds I hope my hon. and learned Friend, who has quite properly put forward this matter, because it ought to be very carefully sifted in this House, will see his way not to further press this Amendment.

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

I think my hon. and learned Friends have really rendered a service by the Amendment which they have moved, for they have called attention to what I consider is the very awkward language used in this Subsection. Subject to that, I wholly and entirely agree with what has been said by the right hon. Gentleman the Chancellor of the Duchy of Lancaster. I think that if we left this Bill merely with the word "compelled" in it, it would be a waste of time and a waste of paper. My own opinion is that if we stop at the word "compel" the whole intentions of the promoters of the Bill would be defeated; therefore, I cannot possibly support the Amendment. I think, however, that this Sub-section is very unfortunately worded. The second part, as I read it, really comes as a definition of the first. We have words in the second part of this Sub-section where something is deemed to be compulsion which, in fact, is not. I want to help the promoters of the Bill. If they will look at the earlier part of the Sub-section, they will see that a married woman is entitled to apply for an order; they will also note there is no power to apply for an order under the second part of the Sub-section. The order is applied for on the ground that the married woman has been compelled to do something, and this may be supposed to be something which it is not. I think it is very unfortunate, and I would urge upon the promoters in the second part of this Sub-section to define the ground of application. I would suggest that you should take out the word "and" which connects the two parts and make it read: or where the husband has, in the opinion of the Court, been guilty of such conduct as was likely to result, or has resulted"— I should like to have another "or" there— in her so submitting herself, the married woman shall be entitled to apply for an order…. The result of that would be that you would give the Court a clear definition of women's rights, and it would not be necessary to give us something which is deemed to be compulsion which is not compulsion. She would go to the Court and say this or that has been the conduct of my husband, and I ask you to infer other conduct—refusing food, driving me out, and in insisting, it may be, in living with some low woman in the house, and so on. I think we would possibly get a clearer definition and the Court would not be asked to deem something to be that which it is not. There would be ample and just ground for an application. I attach the very greatest importance to this subject and the need for a substantial ground of application. I think it is the duty of the legislature to anticipate the possibility of a woman being compelled to lead an immoral life. We do in this way take these substantial grounds to anticipate, and we say to a woman: "If your husband's conduct has been such, as in the opinion of the Court, is likely to end in, or is likely to induce immorality, you can get your order right away." I would suggest to the promoters of the Bill that if they did this, if not here, in another place, they would properly amend this Sub-section.

I would also suggest to my hon. Friends that the order of the Sub-section should be transposed; in other words, I would put the latter part first, because we know, as I have said, how difficult it is to prove compulsion. If you put this latter part of this Sub-section first, then the woman may be entitled to go and apply for an order as against her husband on the ground that his conduct has been, quite obviously, such as, in the opinion of the court, was calculated to drive her to prostitution. That is what we want to put in. Therefore, I would prefer the wording to be on substantial grounds, leaving in "compulsion"—nobody can object to that. Therefore, I do urge an Amendment, either here or in another place, to make the ground of action clear and substantial to get away from saying a thing is deemed to be what it is not. I think the drafting is most unfortunate. I do not read it in the way it has been read, but I do not say I am right—but we want to make it quite clear.

Photo of Mr William Bridgeman Mr William Bridgeman , Oswestry

I think the point raised by the hon. Member for Gillingham (Sir G. Hohler) deserves an answer from the Government. His point is that the conduct is almost as bad whether the woman takes to a life of prostitution or whether she does not, and it seems to me that there is a good deal in the suggestion which he has put forward. In fact I should say that the woman who has the greatest provocation to take to prostitution and does not do so deserves our protection just as much as the one who does. I think the Government ought to inform the House whether they are willing to provide something to provide for this case.

Photo of Mr Leifchild Jones Mr Leifchild Jones , Rushcliffe

May I point out that the Amendment, if carried, would involve a re-drafting of the whole Clause, because if it be passed the first part becomes unnecessary. I do not think the suggestion made by the hon. and learned Member for Gillingham is relevant to this particular Amendment, because we should have to give a larger definition to the words, and it would make the second half meaningless and useless.

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

The words are "deemed to have compelled."

Photo of Mr Leifchild Jones Mr Leifchild Jones , Rushcliffe

I must not be drawn into an argument as to whether the husband has in the opinion of the Court "been guilty of such conduct as was likely to result and has resulted in her so submitting herself."

It is the word "compelled" that is important. I think the proposal made by the hon. and learned Member for Gillingham is well worthy of consideration in another place, but in the meantime we are bound to persist with this Amendment.

Photo of Hon. Sir Malcolm Macnaghten Hon. Sir Malcolm Macnaghten , County Londonderry

I ask leave to withdraw my Amendment, and I do so in order to facilitate the improvement of the Clause in another place.

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

I think the point which has been raised by the hon. and learned Member for Gillingham would be out of Order on this Amendment. It is a point as to whether there should not be an additional ground given to a woman in respect of a Separation Order. The ground is not that she has been forced to prostitution, but that she might be forced to it. I do not think a discussion on this point is in order on this particular Sub-section. We are now discussing whether we shall leave out the last part of Sub-section (2). If we can get rid of that Amendment, then we should have a clear field to discuss something which may not be in Order at this point, but it may be in Order subsequently.

12 N.

Photo of Sir William Mitchell-Thomson Sir William Mitchell-Thomson , Croydon South

The question put from the Chair is, "That the words proposed to be left out stand part of the Bill." If the word "and" stand part, my hon. Friend's suggestion will be impossible of achievement, because the proposal is to leave out the word "and" and to insert the word "or". I am afraid this cannot be done on this Amendment even if it is negatived. I do not think there is anything left to do except for the right hon. Gentleman and the promoters of this Bill to consider, before the Measure reaches another place, whether anything can be suggested to meet this point.

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

It must not be understood that we accept the new condition, because it will have to be gone into very carefully.

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

Will the Chancellor of the Duchy consider this point between now and the time this Measure goes to another place?

Amendment negatived.

Photo of Mr Herbert Willison Mr Herbert Willison , Nuneaton

I beg to move, in page 1, line 23, at the end, to insert (3) Where any Orders are made they shall not be enforceable whilst the married woman continues to reside with her husband. I do not want to hamper the administration of this Bill or go against the desires of the promoters, but in my view, unless some words of this description, are added, this Measure will only render the position of Justices a more difficult one because, as the law at present stands, a woman cannot obtain a separation order on either of the grounds referred to in this section unless by such conduct as neglect or persistent cruelty, which has led her to reside in separate apartments. This often inflicts the greatest possible hardship because, owing to the house shortage, the woman cannot obtain another house or room to which to take her children. I quite agree that the Clause itself as it stands would enable a woman, without necessarily leaving her husband, to be able to go to the Justices and obtain an order, but I do think it is absolutely necessary that we should add words to this effect, because otherwise it seems to me the position will become impossible, for this reason, that, as it stands at present, I am certain you will get different decisions all over the country.

Justices are extremely anxious—the hon. Member for Darwen (Mr. Hindle) spoke as a Clerk of the Peace, and I speak after twenty-five years' continuous practice before them—to administer the law correctly, and I want to feel sure that when they do get this Bill it will be clearly stated what is exactly their position. If it, stood without this proposed addition, the position apparently would be that the married woman, having obtained her separation order, could then enforce the order against the husband, although she was continuing to reside with him, and I do not think that would be either fair or right. May I call the attention of the House to the fact that the words as they stand are almost identical with the words that have been adopted and that were thought to be necessary in the Guardianship of Infants Bill now before the House of Lords. I therefore desire, in the interests of the Bill itself, that this Sub-section be added so that it may be made perfectly clear what is the opinion of this House with regard to it. If the members of the House think it is not necessary, I do not want to persist in it, but myself I do honestly feel that it is absolutely necessary for the purpose of Justices clearly understanding their position.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

I beg to second the Amendment.

I do so because I think it is necessary in order that the Bill shall not cause a perfectly impossible situation. The Clause, for the purpose for which it is introduced, is an extremely good Clause. There is no doubt that the position under which a woman cannot bring proceedings without leaving her husband causes an enormous amount of injustice. A woman is subjected to cruelty. If she leaves her husband she is left absolutely destitute and has to maintain herself during the time that is necessary in order to get the case before the magistrates. Undoubtedly, that prevents many women who are fully entitled to orders of this description from obtaining that justice to which they are entitled. But from the moment she has got to the Court and the Court has heard the matter and made the Order which provides for her maintenance, all reason is against her continuing to live with her husband. Quite apart from that, all reason and common-sense is against two people living in the same house and one enforcing an order for maintenance against the other. I think this is absolutely necessary for the purpose of clarifying the Bill. One remembers when the Guardianship of Infants Bill was before the House (that that view was taken by the Government with regard to a similar Section, and I hope the promoters will accept the Amendment as making the Clause better in its terms and more reasonably enforceable.

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

I think these words ought to be added to the Bill. The House will remember that the Guardianship of Infants Bill was the subject of an agreement. The promoters of the Bill, the Government, and the opponents came together and drew up an agreed Measure. In that Measure, after considerable discussion, this form of words was embodied, and, if it was necessary in that Bill, it is certainly as necessary in this. The, broad facts are these. So long as people live together you must trust to the natural play of affection to settle these matters. It is only when people cease to live together that you can bring in the Court to decide the knotty problem between them. By this Bill we give to injured wives the enormous advantage of being able to get an order and know where they are. But it would be intolerable and impossible that a woman should continue to live with her husband and to go to him at the week-end and say, "You have only given me 15s.; I will summon you for the balance." Under such circumstances, married life could not continue. Therefore we consider that this form of words ought to be added to the Bill in order to make it a workable Measure and at the same time to give the injured wives the real protection which they need at present.

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

I wish the right hon. Gentleman would consider exactly how this Clause would work. As I understand Sub-section (1) of Clause 1, the object is to repeal the words in the principal Act— and shall be such cruelty or neglect have caused her to leave and live separately and apart from him. If this Amendment run as part of the same Clause— Where at the time when such order, or orders, is made the married woman is residing with her husband the order, or orders, shall not be enforceable whilst she so continues to reside with him"— I am not sure about it, but would not those words read as a limitation, and would you not be limiting the repeal of the objectionable words now to be found in the principal Act? Ought it not to come in as a separate Clause?

Photo of Mr John Whitley Mr John Whitley , Halifax

That is the reason I did not take the Amendment as it stood originally on the Paper. It is now proposed as a new Sub-section.

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

I think that answers my criticism.

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

I think it is all right. It is now being taken as a manuscript Amendment, and we have not been able to consider how it works in with the rest of the Bill. I think it might be preferable to have it as a proviso to the first Sub-section, but we cannot possibly decide these matters on the spur of the moment in this way. I can only assure my hon. and learned Friend that between now and when the matter is taken in another place we will look into it carefully.

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

I felt your difficulty, and I did not quite follow how you had put it. It does require great care, and the right hon. Gentleman says that he will give it.

Photo of Mr James Cassels Mr James Cassels , Leyton West

I am all in favour of this new Sub-section. Under the principal Act, if a married woman on whose application an Order has been made shall voluntarily resume cohabitation with her husband, then the Order shall be discharged; and the position, as I understand it, is that a wife—

Photo of Sir Gerald Hohler Sir Gerald Hohler , Rochester Gillingham

My recollection is that there was a case in the Divisional Court in which it was decided that under that Act you could not get a discharge except by order of the Court.

Photo of Mr James Cassels Mr James Cassels , Leyton West

It means that the wife is to have power to go backwards and forwards, and do just whatever she likes. Although this is an admirable suggestion one must not forget that the Title of the Bill means Separation, and if we are going to allow a wife to obtain an order while in fact she is living with her husband, then of course it will be in the nature of an Order which is held in suspense. She will be entitled to refer to it frequently in the course of their married life. She will hold the separation order over her husband's head. Of course, one does not object to making additions to the weapons of a married woman, but before we put those weapons into the hands of married women, we must make sure that the Bill is properly drawn. If it were suggested in this House that another weapon should be put into the hands of a married man—

Viscountess ASTOR:

He has them all already.

Photo of Mr James Cassels Mr James Cassels , Leyton West

I have no doubt that such a suggestion would have the cordial support of the noble lady who sits for Plymouth, but here you have the wife entitled to trot to the police court and make application for an Order, at the time when she is not living apart from her husband. She gets the Order, and is going back. No doubt she will mention in well selected terms to her husband the fact that she has got this Order, but still she is going to continue to cohabit with him. The difficulty arising under the proposed new Sub-section is that one cannot enforce that Order while the wife continues to live with her husband. That is a very proper thing, but it will have to be considered in relation to the terms of the principal Act. This is one of the difficulties arising from not having the Solicitor-General or a Law Officer of the Crown to take charge of the Bill and to explain to hon. Members exactly what the effect of the proposal may be on the principal Act. We are going to have a large number of Acts on this subject, and this will make it very difficult for the Court of Summary Jurisdiction to administer them. The usual thing is that, when a wife makes an application for an Order of this sort, she is living separately from her husband, but in this case she is living in the same house. She is probably going up to the Court with him in the same tram, in order to thresh out their differences, and, having got the Order she will come home with it in her pocket. It is not to be enforced, but doubtless it will be spoken of. It may be framed, and hung over the mantlepiece for the edification of the husband. I do not know what the noble lady the Member for Plymouth desires, but I see she is shaking her fist at me. At any rate, she cannot get an order like this against me.

Viscountess ASTOR:

Is it right to say I was shaking my fist at the hon. and learned Member? You know how badly this looks in print, and I protest, not for my own sake but for the sake of women generally, against such a statement being made. I hardly raised my finger.

Photo of Mr John Whitley Mr John Whitley , Halifax

I think the Noble Lady failed to appreciate the humour of the remark.

Photo of Mr James Cassels Mr James Cassels , Leyton West

It is exactly the lack of appreciation of a little humour that sometimes leads to these applications to police courts. I can only express the hope that, when this Bill comes to be considered in another place, great care will be exercised to see that, as a result of putting on the Statute Book a new piece of legislation like this, confusion is not caused in the minds of the Court which has to administer the Bill by reason of the fact that you have so many contradictory principles expressed in it.

Photo of Mr Herbert Willison Mr Herbert Willison , Nuneaton

I should like to assure the hon. and learned Member who has just spoken that there is really no difficulty of the description he has mentioned, because the position at present is—after the decision in "Matthew v. Matthew," in which it was held that cohabitation did not bring to an end any order that might be in existence—the procedure is perfectly simple before the justices. The husband can at any time he likes, after the cohabitation has taken place, apply to the Court to discharge the Order, which is forthwith discharged. If the husband wants to put an end to such a state of affairs as the hon. and learned Gentleman has mentioned, all he has to do is to apply to the Court for a summons, which is granted. There is no difficulty on that score, whereas the addition of the Sub-section gives the wronged woman the right to obtain her Order. If the husband will not take the trouble to get it annulled, surely he is not worth consideration.

Mr. STORRY-DEANS:

In reference to the possible conduct of a wife mentioned by the hon. and learned Member for West Leyton (Mr. Cassels), I beg to assure the House that that sort of thing is not only possible, but that it has occurred. I can give an instance which happened this year in my own experience. A lady got an order against her husband. I gather the conduct complained of was not very bad, but she contrived to persuade the magistrates that she had been deserted by her husband, because, in a temper, when she said she wondered how he managed to live with her if she were so bad-tempered as he suggested, he replied, "Get out, then." She took him at his word and got out, and she thereupon got her order from a sympathetic beach of magistrates. Benches of magistrates are rightly sympathetic to the claims of women. That is my experience. They gave this lady her order. She went away to live in a distant part of the country, and the husband faithfully paid the amounts due under the order. After a while, at his urgent solicitation, she returned to him and lived with him for about a week, and then, without any other quarrel having taken place, she again left him. He did not apply for the order to be annulled, and he continued to pay her the allowance. After another three or four months she returned again and lived with him for 10 days—one week and two week-ends. Then she went away again, and the husband adopted the course which my hon. and learned Friend has spoken of, and applied for the order to be discharged. The lady as a consequence was very much aggrieved. There is no doubt that on the first occasion he wanted to get his wife back to him, and he therefore did not apply for the annulment of the order, thinking that probably if he took further proceedings in the police court she would refuse to return to him. He was genuinely fond of his wife. His letters in the case were couched in the most affectionate terms, but when she played this trick on him a second time he took the proceedings I have mentioned. I am only mentioning this to prove that the point made by my hon. and learned Friend is not a mare's nest, but is a thing which has actually happened.

What we want the Government and the promoters of the Bill to do is to take care, when a proposal is made to insert the new Clause in another place, to see that the legislation on this subject is properly co-ordinated. We do not want to take away or to injure any right which women have, but on the other hand we do not desire to put into the hands of any woman who might be capricious the power to act in the manner I have explained. I apologise to the Noble Lady the Member for Plymouth (Viscountess Astor) for venturing to suggest that a woman can be capricious, but I do beg the Government and the promoters of the Bill to take care that this new Clause shall be inserted in such a form as to do no injustice to anyone.

Photo of Mr John Mills Mr John Mills , Dartford

It occurs to me that the view of the marriage tie, held by those who oppose this Amendment, is the view which has been held throughout the centuries, and those of us who sit on these benches have often been accused of being in favour of free love because at times we have suggested that the economic dependence—[A laugh]—I do not know that there is anything to laugh at. I did not laugh at the hon. Gentleman. Our view is that it is the economic dependence of the woman upon the man that so often leads to these domestic tragedies. The hon. Gentleman who has just spoken quite unwittingly gave away the whole case. I myself and others of those who sit on these benches, long before we came here, have had to offer advice in hundreds of these cases where married couples were in trouble—cases that never went into Court—and in 99 cases out of 100 the wife has been absolutely dependent upon what the husband cared to bring home, and if she complained she was told to get out. I suggest that this problem, after all, is a 50–50 arrangement, based on ordinary common sense, and that when people go to the Court after there has been an explosion of bad temper, very often, on the way home, the fact that the proceedings have actually been taken in Court, and that the woman or the man has secured a temporary advantage or protection, leads to a better understanding. It does not follow, because a wife goes back with her husband with an order in her possession, that they are going to live in a spirit of continued antagonism. It may lead to a better understanding, and for the life of me I cannot see why the opposition should be maintained.

Amendment agreed to.