I beg to move, That the Clause be read a Second time.
The proposed new Clause may appeal to those who feel aggrieved about the previous proceedings in that it arises from the old Clause 5, in other words, the new Clause which has not been called. The case rests on Section 1(1,a) of the Divorce (Insanity and Desertion) Act, 1958, which was a United Kingdom Act. It changed the definition of incurable insanity in relation to patients who were formally certified but who were described in that Act as voluntary in-patients.
The 1958 Act preceded the Mental Health Act, 1959, which applies to England and Wales, and the Mental Health (Scotland) Act, 1960. It had its origins in the Royal Commission on Divorce which conducted its inquiries and set out its opinions between 1951 and 1955. Those Scottish Members who feel that we should enjoy the same privileges and rights as citizens in England and Wales believe that we should bring Scottish law into line with that of England and Wales.
I confess that there has been a great deal of good will on both sides of the Committee in this respect. I thank the sponsor of the Bill and all those concerned, including the Lord Advocate who has since written to me on this matter, for the way in which discussion and thought on this matter have proceeded.
I am proposing this new Clause in the knowledge that the Government will not like it and that the sponsor will probably not accept it, but I believe that the case for it and the reply to it, if acceptance of the new Clause is refused, should go on record. I am sure that many hon. Members, including those who have certain feelings about other matters which preceded this new Clause, look forward to the day when we might have a more comprehensive divorce Act which will incorporate many of the provisions which have since been abandoned. This is one provision which I hope hon. Members will not abandon. As I say, I have proposed the new Clause solely to get the case for it on record.
The case is this. In the current Health Report for Scotland, there is a remarkable table of statistics on page 66 which demonstrates the astonishing change in our practice regarding mental health in Scotland. In 1938, the total of both categories of patients suffering from mental ill-health—those certified insane and those who were voluntary patients—was 19,943. In 1963, the total for both categories was 19,435, a very small decrease. The figures are almost comparable.
The interesting thing about these figures is that in 1938, the total number of patients subject to compulsory powers was 18,463, while the total undergoing treatment voluntarily was 1,480. In 1963, on the other hand, almost the reverse was true. Some 17,229 patients were treated voluntarily, while 2,206 were compulsorily detained.
The point is that in the process of law regarding cases of divorce based upon incurable insanity, the pursuer no longer has to allege incurable insanity, but the defender or curator on his behalf must assert either that he has not been a voluntary in-patient for five years or if he has, that his condition is capable of cure. In the hurried proceedings of the Committee, we did not all fully appreciate or ventilate our views and thoughts on this matter, but the subsequent interval has given us time to clarify our views. I feel that there is a strong case for the new Clause.
I have carefully examined the Lord Advocate's letter and also the letter which the hon. Member for Aberdeenshire, West (Mr. Hendry) sent me and on which I should like to comment presently. It is not any party recommendation, but it is the recommendation of the Royal Commission that we in Scotland should bring our law into line with that of England. It asked for the comments of the General Board of Control, the body which preceded the Mental Welfare Commission, and although the Board of Control was not satisfied that the change was necessary, the Royal Commission came out wholeheartedly in favour of a change in the law, saying:
We have carefully considered the Board's representations, but we remain of the opinion that the court should require positive proof of incurability.
The words of the new Clause are a direct extract from the Royal Commission's Report, and in order to be fair to all concerned I have used the phrase:
so far as medical knowledge can ascertain.
I will now deal with the objections to the Clause. The argument of the hon. Member for Aberdeenshire, West in Committee on 7th July was in three parts. The first part was that the Clause might not be properly worded. This may be an argument of drafting, but I have taken advice and am advised that it is fairly and legally drafted and requires no further embellishment. As I say, it may be a matter of legal argument, and I leave it to the hon. Gentleman to comment on it, but I do not admit that it is legally imperfect.
The second argument was that the Scottish law of evidence provides that there must be corroboration and that it would be necessary for all doctors to be produced to give evidence. I refute that by calling in aid the Lord Advocate, who in his letter described how the present process in the Scottish courts continues. Having examined that, it seems to me that even under the present rules the argument does not stand. By convention, almost by unfailing convention, a report is taken from the Mental Welfare Commission, and there is also a medical witness who is bound to be called in favour of the pursuer in the divorce action. That being so, it seems to me to be legitimate that the defender ought, through the Mental Welfare Commission, to be helped to get an independent medical witness to sustain his own position irrespective of what the Mental Welfare Commission submits. So, in view of what the Lord Advocate has said, the hon. Gentleman's second argument is not valid.
The hon. Gentleman's third argument was the complaint that I was transferring the onus from the defender to the pursuer. That is exactly what the 1958 Act did. By allowing periods of voluntary treatment to be in a sense a penalty against the person in a divorce action, that Act added the compensating device that there had to be adequate proof of incurable insanity. In other words, if one takes away from the mentally ill person who is not certifiable the advantage of not having been certified and counts against him the days, months and years when he has been a voluntary in-patient getting treatment from a psychiatrist and simply being on the roll of the hospital—the Royal Commission argued lengthily about this—it was recommended by the Royal Commission that that person should be given adequate safeguards about medical evidence in relation to incurable insanity.
I concede that the English practice regarding the law of evidence even now may not be as thorough or, one might say pernickety as it is in Scotland, but I cannot see why we in Scotland should simply rest content on past practice which may be the same as we should achieve through passing the Clause when we ought to put on the Statute Book in this Clause to put in line, in theory as well as in practice, the rights of persons who are unfortunate enough to be in the position of having to defend themselves in a divorce action simply because they have suffered from a terrible degree of mental ill-health for such a long time.
I hope I have dealt fairly with the arguments of the hon. Member for Aberdeenshire, West. We have moved in great harmony on these points, and I hope that we can now help to improve the Bill by accepting this Clause.
The hon. Member raised this subject during the last sitting of the Committee by means of a manuscript Amendment and spoke very attractively and forcefully upon it. At that time I was very much impressed by what he said. He said that the Royal Commission had suggested legislation along these lines, and he also spoke about the extension of medical knowledge. Naturally, I have very great respect for his professional qualifications and was much impressed by what he said. But since then we have had time for reflection. At that time we were very rushed. I promised to give consideration to what he had said before Report, and I have done so. It now seems to me that to a very large extent the hon. Gentleman has misunderstood the law of divorce on the ground of incurable insanity.
Before a divorce can be granted on this ground it must be proved that the defender has been in hospital for a period of five years prior to the raising of the action under care and treatment for mental illness and it must be averred that his insanity is incurable. Under the law of Scotland, it has always been a presumption that, if a person has been in hospital under treatment for mental illness for a period of five years, he is incurable; but that is purely presumption and it is a rebuttable presumption. It is open to the defender in an action for divorce on this ground to rebut that presumption if he can.
Yes. The presumption is that the person is incurable. But, as I have said, it is purely a presumption and it is a rebuttable presumption. It is open to the defender in these circumstances to rebut that presumption if he can. There are adequate safeguards in the law of Scotland to enable an insane defender to do that because, in every action of that kind, the court automatically appoints a curator ad litem to look after the interests of the insane person.
The curator ad litem is, to all intents and purposes, an officer of the court, with the duty of advising it in the interests of the defender. In addition, the court invariably asks the Mental Welfare Commission to report whether, in its opinion, the defender is or is not incurable. Thus, there are adequate safeguards for a defender in these circumstances.
This has been the law of Scotland since 1939. Divorce on the ground of incurable insanity was first introduced into the law of England by Sir Alan Herbert's Act of 1938 and was introduced into the law of Scotland in 1939 by another Private Member's Act. This answered a point put by the then Lord Advocate, the late Lord Cooper, who suggested that the presumption should form part of the law of Scotland because of the very much higher standards of proof required in Scottish courts as compared with courts in England and Wales. Lord Cooper was of the opinion that it would be almost impossible, under the rules of evidence in Scottish courts, to prove incurable insanity without a presumption of that sort.
I believe, therefore, that this new Clause is unnecessary, provides no safeguard for a defender in the circumstances and, at the same time, is very undesirable because it would upset the law in practice in Scottish courts at present. For these reasons, I cannot advise the House to give it a Second Reading.
I am sorry that the hon. Member for Aberdeenshire, West (Mr. Hendry) has not seen fit, having had time for contemplation, to give the Clause a friendlier welcome. I am not yet entirely convinced by him. Two points stick in my mind about this. The Royal Commission reported in 1955. The Act which my hon. Friend the Member for Greenock (Dr. Dickson Mabon) seeks to amend—the Divorce (Scotland) Act—was passed in 1938. We had a considerable change in the law of mental illness in 1960.
From 1938 right through until 1960 the emphasis in mental health was to call a person who was mentally ill insane. The figures quoted by my hon. Friend the Member for Greenock were of people who were compulsorily detained, having been declared to be insane. It was these people of whom it could be foreseen that there would be a presumption of incurability if they had been detained for five years preceding the hearing.
However, the position has now completely altered. Following the 1960 Act, people in mental hospitals are not necessarily detained. The emphasis has been on the possibility of cure by modern medical treatment. The emphasis has been on getting people to go into hospital voluntarily, without the formalities and compulsions of certification.
The result has been that the overwhelming number of people now in mental hospitals—and we are glad of it—are there of their own free will. The fact that they are there of their own free will itself argues a sense of sanity. The danger is that this presumption will now apply to people who have had treatment over the period of five years. The presumption is against them, whether they like it or not, until such time as it is proved otherwise. It is surely unfair that they should be in that position. Surely our law should progress in this respect as it has with mental health. Obviously, if a person is receiving voluntary treatment, he does not need to go into hospital and he should not be rendered liable to this provision simply by going to hospital for treament.
My hon. Friend is being very reasonable. It is clear that we have to make sure that, so far as medical evidence can show it, it must be proven that there is incurable insanity, and it should be for the pursuer and not for the defender to prove that.
I notice that on this occasion the hon. Gentleman did not try to refute the validity of the wording of the Clause. He has now exhausted his right to speak again, for we are not in Committee. He said that my hon. Friend had raised this issue in Committee by a manuscript Amendment. He did not say that that manuscript Amendment came before us at one o'clock in the morning. On that day, we began our proceedings at half-past ten in the morning, finished at 1 p.m., started again at four o'clock and went on, with various breaks, until very late. One of the great weaknesses of the treatment of the Bill has been that we have not had the usual time for reflection and for putting down and studying Amendments. It is not fair to blame my hon. Friend for that. If anyone is to be blamed, it is someone else.
Even at this stage I ask the hon. Gentleman to consider this to make sure that we do not so upset the balance of proof that it might affect the beneficial working of the Mental Health Act, in that people who are receiving treatment might be penalised by the working of our divorce laws.
I wondered whether to make that point. I did not want to introduce extraneous matters. It is a pity that the Lord Advocate is not a Member of the House. It would be helpful if we could have man-to-man exchanges to get enlightenment, and to persuade the Lord Advocate that we are not ignorant of the law of Scotland.
The Lord Advocate's letter is very well written. I am sorry that he has to use the same typist and the same typewriter as the hon. Gentleman does when he writes letters. In his letter the Lord Advocate said that the timing did not seem right. There is a possibility of doing this by agreement. This is a sensible new Clause, and I hope that the hon. Gentleman will realise that there is time for him to change his mind.
The hon. Lady is now going to give us the Government's view, and the Lord Advocate's view. I hope that she will help me to persuade the hon. Gentleman that what we are proposing is right. Let us do one thing together after a day of controversy. It will be to everyone's advantage if the new Clause is accepted.
Despite that enticing invitation from the hon. Member for Kilmarnock (Mr. Ross), I am afraid that it will be my duty to advise the House not to accept the new Clause, although it was so persuasively moved by the hon. Member for Greenock (Dr. Dickson Mabon).
I, too, was somewhat taken with the hon. Gentleman's persuasive powers. I think that what is really on his mind, and what is worrying him and the hon. Member for Kilmarnock, is whether recent legislation and this different attitude towards mental illness has meant that the defender's interest in a case where divorce is sought after five years' detention in a hospital for incurable insanity is properly maintained, or whether he is being prejudiced in any way under the existing law. Having been advised most carefully on this by the Lord Advocate, I am convinced that the hon. Gentleman's fears are groundless and I shall seek—as he wished it to be done—to place on the record the reasons why we think that the new Clause should be resisted.
First, I should perhaps say to the hon. Member for Kilmarnock that the 1960 Act did not affect the meaning of incurable insanity. That definition remains, and is briefly summed up by saying that the insanity must be of such severity as to disable the sufferer from looking after his own affairs and in the normal way of living a normal married life. "Incurability" is to be understood in its normal meaning.
The hon. Gentleman rightly said that this proposal was the Scottish recommendation No. 11. He based his case on two main points: first—although this was one to which he did not devote very much attention tonight—that it worked well in England; and secondly, and more important, that as recent figures showed that such a large number of people now go voluntarily for inpatient treatment, we should consider whether the present law was adequately working in the defender's interest.
The hon. Member felt that if there is any risk that the presumption operates against the interests of the defender that risk might be enhanced—as the Royal Commission said—by the extension carried out in the Divorce (Insanity and Desertion) Act, 1958, of various kinds of stays for five years in hospital qualifying for divorce—which range from five years compulsory detention to all residence in hospital for five years, including residence as a voluntary patient.
The extension of various types of "five years in hospital" do not have a direct bearing on the matter, because if it were accepted, for the purpose of argument, that because voluntary residence in hospital is included a greater proportion of people than before of those who might be the subject of divorce actions are not incurably insane, all that this would mean is that there would be more cases in which evidence would be brought by the defence to rebut the presumption.
Therefore, the question before the House tonight must turn on whether the safeguards for the defender are adequate to ensure that no case slips through undefended without the production of rebutting evidence where the circumstances suggest that that defender was not incurably insane. They are very strong safeguards for just this purpose. A curator—an officer of the court and the guardian of the defender's interest—is appointed in every case. The court has the power—which is invariably exercised—to ask the Mental Welfare Commission to produce an independent medical report on the likelihood of the defender's recovery—an independent report that is available to both parties and to the court itself.
Therefore, in a case where the Commission's report casts doubt on the defender's incurable insanity and the pursuer did not drop the proceedings, the curator would be under a duty to the court to lodge a defence and put forward evidence rebutting the presumption, so that the court could direct itself to the question of the defender's incurable insanity.
If the curator, in the first instance, in exercising his discretion, had decided that he would not lead evidence to rebut the presumption and, nevertheless, the court asked for a report, as it invariably does, from the Mental Welfare Commission, and it felt that this report cast a doubt whether the defender was incurably insane, it would ask the curator to investigate the evidence again, and he would be asked to give his reasons why he thought that the presumption in the first place was not rebuttable.
What we have to ask ourselves is whether there is any evidence that the present law has given rise to any injustice. That is what is worrying the hon. Member. I understand that there are less than 20 divorces of this kind every year. As far as the Government are aware there is no evidence of any injustice. Since the Royal Commission reported the Government have not received a single representation in favour of the change, or a suggestion that it is an urgent necessity because of injustice arising from the present law.
Therefore, the second question is: can we be sure that merely because of advances of medical knowledge, what was decided not to be workable before is workable now? I suggest that as we have no evidence that injustice arises, and as there are these safeguards, a very heavy onus rests on anybody who wishes to alter the law, which appears to work well in Scotland at this time. Since the new Clause was put down, a very careful examination of the law has been carried out by the Lord Advocate. I have given his advice to the House. There are also legal precedents, and under Scottish law there are high standards of proof. If there were a decision to alter the law, a great deal of consultation would be necessary with all concerned.
The principal question is: does the law work? The answer is, "Yes". Is there injustice? We have no evidence that there is injustice. I therefore suggest to the House that we should not accept the Clause.
I thought that I had answered that question. I said that if the curator has not brought forward the evidence, the court can always call on the Mental Welfare Commission for a report. If that report gave the court cause to consider that the defender was not incurably insane, they would ask the curator, first, on what grounds he had exercised his discretion not to put forward the evidence, and, secondly, whether he would investigate further the circumstances of the case, and he would have to have access to all the medical evidence which he felt was relevant.