The respondent to a petition for divorce may oppose the grant of a decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage; and if the respondent does so and if apart from this section a decree nisi would be granted, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would be wrong in all the circumstances to dissolve the marriage it shall dismiss the petition.
I beg to move, That the Clause be read a Second time.
If this new Clause is carried—and I sincerely hope that it will be—it will replace Clause 4 and strengthen the provisions which that Clause contained.
In Committee the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) raised the question whether Clause 4 allowed a respondent to oppose a decree nisi on the ground that grave financial or other hardship may be caused to the respondent.
As was made clear by my hon. Friend the Member for Coventry, South (Mr. William Wilson), this was always the intention of the sponsors of the Bill. Therefore, new Clause 1 seeks to fulfil that undertaking which we gave in Committee to meet the point raised by the hon. and learned Member for Oldham, West and other hon. Members.
New Clause 1 has been completely redrafted to make quite clear, first, that the respondent may oppose the granting of a divorce
on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage …
Secondly, if this defence is raised, that,
the court shall consider all the circumstances … and if the court is of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would be wrong in all the circumstances to dissolve the marriage it shall dismiss the petition.
The basis of the defence and the facts upon which the court must be satisfied have now been spelt out. The words "be wrong" have been used instead of "not be proper". So we would define the basis of the court's approach, as it appears to the sponsors and to the draftsman, to be more appropriate in this form. We feel that it is better for the court to be enjoined to be satisfied positively of a particular quality rather than to be satisfied that a course of action is not proper.
The wording of the new Clause will, I believe and hope, be helpful when a respondent wife satisfies the court that, without fault on her part, she would otherwise be divorced and be deprived of a pension should her husband pre-decease her. In effect, her case of hardship is that she has been deprived of the chance of a pension. Therefore, the last sentence of the new Clause is added to ensure that this loss of her chance can be regarded as a hardship. Without such a provision it might be held that it is not the dissolution of the marriage alone which deprives her of her pension for in fact she may not survive her husband.
Amendments Nos. 14 and 20 are purely drafting Amendments. I trust that the hon. and learned Member for Oldham, West will agree that we have met the valid and important point raised by him. I should like to express my appreciation to him for raising the point.
I commend new Clause 1 to the House.
I should like to begin by expressing my appreciation, which I am sure will be shared by others who were on the Standing Committee, for the action of the sponsors in putting forward this new Clause. I hope they will not think it discourteous of me to say that we very much welcome this new atmosphere, because it did not have anything of this kind in Committee.
It is important to begin by recognising why it is that this kind of approach is more appropriate. It should be remembered that as the Bill originally stood—and we are to take out Clause 4 and replace it by this new Clause—it was not clear what the wording was all about. It did not say that this kind of objection could be raised by way of a defence, and that was not satisfactory. It appeared to say that as a precondition, or as a condition precedent to the court considering whether it would be right, or proper, or wrong, or whatever word one likes to use, to grant the divorce, the respondent had to show that the dissolution would result in grave financial or other hardship to him. As was said by several hon. Members, that is a difficult question, and it would be very difficult for the court in the first instance to decide what was meant by grave financial or other hardship.
We now have this improvement that it is the allegation of the respondent which gives rise to this machinery. Unfortunately, though, we find in line 7 that we still have this condition precedent in another form, because if there is to be any successful defence to the application for the decree the court must find that the dissolution of the marriage would result in grave financial or other hardship to the respondent, and the court can take the position of the children into account only if it makes that finding.
I know that my hon. Friends will wish to speak on this matter, because powerful arguments were put forward in relation to it. I want, in the first instance, to outline the objection that we still have, and to say with all respect to the sponsors of the Bill that they have not met the point.
I shall not anticipate what I know my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) will deal with. It was pointed out in the Committee that there might be cases in which, if one is to interpret the words "grave financial hardship" in anything like a literal sense, it would not be possible to prove it, but, at the same time, from the point of view of the children there might be strong reasons for thinking that in all the circumstances it would be wrong to dissolve the marriage.
What we propose to do is to say that it is not necessary to prove that the respondent would suffer grave financial hardship, that it is sufficient to insert the words "or any child" to show that the child is affected. The consequence of that would be that we would not include the second reference to grave financial or other hardship to the respondent. If the Amendment were accepted, the Clause would read:
… and if the court is of opinion that it would be wrong in all the circumstances to dissolve the marriage it shall dismiss the petition.
The sponsors of the Bill have said that the court shall consider all the circumstances. Surely the proper thing is to ask whether, "in all the circumstances", that would be wrong? Instead of that there is put on the court this substantial limitation that it has to be proved to the satisfaction of the court that the dissolution of the marriage will result—not even may, but will—in grave financial or other hardship.
I do not want to enlarge on the argument, because there are several facets to it. I do not want it to be thought that we are being churlish about this, because we welcome this much more satisfactory approach. I have heard various people who have different views about the matter express appreciation of the fact that it will now be recognised that the court will operate as a court should. There is a great deal of feeling that there is a danger of the courts being treated as rubber stamps. In Committee we heard some suggestions that the courts ought to be left out altogether, and that one should be able to do these things by some administrative process.
It is therefore important that the provisions of the Bill should be in such a form as will normally be administered by the courts. We are grateful for the form of the Clause, for the intention behind it, and for much of its content, but I seriously suggest that the defects which I have tried to indicate ought to be remedied in the way that I propose.
I, too, should like to express my appreciation to the sponsors for putting forward this new Clause. As the hon. Member for Rhondda, West (Mr. Alec Jones) said, this is the result of my interventions in Committee when I said that the Bill did not make it plain that it was open to a respondent to defend a petition purely on the ground that to grant a decree would result in financial or other hardship. I am, however, disappointed that we still have this expression
grave financial or other hardship",
because in every case this will leave the courts in the position of deciding what is grave financial hardship. How grave has grave financial or other hardship to be?
The hon. Member for Rhondda, West referred to the possibility of the loss of a widow's pension. This is something which every respondent wife will risk. That being so, is the risk to be classified? Is the risk of losing a widow's pension to be regarded as a grave financial hardship? If it does not come within the category of "grave", if it is just ordinary hardship, then the Clause will not meet the difficulties of most respondent wives. I should like some guidance—and I am sure that the courts would welcome some—on what the expression is intended to mean.
When I raised this matter in Committee the hon. Member for Rhondda, West answered the debate. He said:
Hence it is the intention in Clause 4 that the court's discretion should not operate unless the hardship is disproportionate to that which would be caused to others by refusing to dissolve the marriage."—[OFFICIAL REPORT, Standing Committee B, 19th March, 1969; c. 398.]
I can understand that. If the position was that the judge looked at the parties before him; if on the one hand, he looked at the petitioner who was asking for a decree and considered all the facts which he has put forward—his desire to marry another woman, the wish of the other woman to be married, perhaps there are children to be legitimated—and on the other, he looked at the respondent wife who would run the risk for certain of losing her widow's pension—perhaps she could run other risks as well; the possibility of being evicted from her home if it belongs to her husband, and the fact that her children would suffer too—and he found that there would be greater hardship to the respondent by being divorced than there would be to the petitioner by making him stay married, and therefore refused to grant a decree—the sponsors of the Bill thereby adhering to what the hon. Member for Rhondda, West said in Committee—I would have little more to say. But, at a subsequent sitting, he resiled from what he had said. He stated that the judge would not be expected to look at the matter in that way at all and certainly not at the stage when he was considering whether there was grave financial or other hardship.
We are thus back at the stage where, before the judge is to have any power to dismiss a petition, he has to be satisfied that to grant a decree would cause the respondent grave financial or other hardship. It is nonsense for the hon. Member to talk about the risk of losing a widow's pension unless he is saying that that is a grave financial hardship. If he is saying that, then he is talking about every respondent wife because, of course, if there is a divorce she will cease to be a wife and if she ceases to be a wife then she will never be a widow Therefore, every respondent wife and every petitioner for that matter runs the risk on divorce of losing the widow's pension—and even if it is only £4 10s. a week, as at present, that is still £200 a year, which is a serious matter for the majority of those with whom we are concerned. Is that to be regarded as grave financial hardship? If so, it means that every respondent wife who raises such a defence will be entitled to have the petition dismissed.
If the hon. Member does not mean that, if he means that he considers the loss of a widow's pension as ordinary and not grave hardship, what does it mean? What sort of hardship has a respondent wife to prove to the court before she can succeed in preventing her marriage from being dissolved? I should like the hon. Gentleman to revert to what he said in Committee in the first place. I hope that I am not being presumptuous but I think that, when he made that statement, he was reading from a prepared document and that this was the idea which the sponsors of the Bill had in their minds when they introduced it.
I hope they will adhere to the principle that, when the judge has been asked to decide whether there has been grave financial or other hardship, he must apply the test of comparative hardship. This would mean that he would have to look at the petitioner and at the respondent. Obviously, the facts of each case will be different but if, in any case, he comes to the conclusion that it would be a greater hardship to the respondent to be divorced than it would be to the petitioner and others—the woman he wants to marry, the children, if any—to stay married, his duty is to dismiss the petition. New Clause 6 provides:
In determining whether, under section 4 hereof, the dissolution of a marriage would result in grave financial or other hardship to the respondent, the Court shall have regard to the question whether such hardship would be disproportionate to that likely to be suffered by others in the event of a decree being refused.
If new Clause 6 were coupled with new Clause 1, I would have little more to say, but unless it is it seems to me that new Clause 1 achieves precious little. It will merely leave respondent wives in the position of having to prove some awful hardship—which is the picture conjured up by the use of the phrase,
.. grave financial or other hardship …
and this surely cannot benefit many litigants. However, it would make sense if new Clause 6 were brought in as well.
We would then be in the position where the courts were able to do justice and to look at all the facts—the conduct of the parties, the interest of the children and other people who might wish to marry one or other of the spouses. The court could look at everything and then ask, "Where does the greater hardship lie?" If we are to have this Bill on the Statute Book at all, then there must at least be this amount of protection for completely innocent people—and that is where the consideration of the conduct of the parties becomes important.
As a newcomer to the discussion, I support entirely the arguments of the hon. and learned Member for Oldham, West (Mr. Bruce Campbell). It is most important that the courts should be given not merely the widest possible discretion in evaluating the merits, interests and welfare of the parties but to take account of their conduct. It is clear over the last few years that in many respects the discretion of the court to take cognisance of the bad conduct of petitioners—
Surely it is relevant to observe that the courts seem to have taken less and less regard of the conduct of petitioners. If I understood the hon. and learned Gentleman correctly, he was in some measure seeking to put that back into the law. But the important point here is that new Clause 6 would place upon the court a duty to refuse a decree if these provisions were not satisfied. I understand that and accept the good faith of the sponsors of the Bill in regard to new Clause 1. Obviously they have been sensitive to criticism expressed in Committee.
Not long ago, we suffered from imprecision in legal matters in the sorry tale of the Parliament (No. 2) Bill. I would not like to feel that we were going to repeat here the sort of mistakes which became evident on close examination of that Bill by leaving the situation as vague as new Clause 1 would. For that reason I hope that my hon. Friends will give the hon. and learned Member for Oldham, West the encouragement he deserves.
I approach this matter with an open mind because I was not on the Committee. I wonder whether the new Clause is workable in practice. Although I am sure that its sponsors have the best intentions, it will be very difficult to make it work.
I start from the assumption that about 99 per cent. of those concerned in divorces cannot afford the financial burden of running two homes, although some rich people might be able to divide their income or capital to that end. So the courts will be in a very difficult position. I have not the figures of the number of people who are on social security because they have been the subject of divorce proceedings, but it is enormous and I think will be found in the Payne Report on the Enforcement of Judgment Debts. Therefore, where the respondent opposes the grant of a decree nisi, when it could be granted under the Bill, because he or she would be left in grave financial or other hardship, the judge will have to inquire into the whole conduct of the marriage and of course about the children.
So in any undefended petition in which the respondent pleads financial hardship the marriage and the financial situation will have to be examined. Apart from the question of widows' pensions, the husband might be earning only £16 a week and living with another woman, by whom he has one or two children, while his wife has three children by the marriage, and he could not be expected to keep five children on that money. That occurs in a large majority of cases throughout the country.
What is the unfortunate judge to do? If he refuses a decree because of the hardship to the woman, then if a woman had admitted adultery or cruelty for a long time but would be left virtually penniless and unable to earn any worth-while sum, the judge would not grant a decree under this Bill, although he might have done so under the old law.
Another practical reason is that the vast majority of divorce petitions are undefended and the respondent sometimes appears to discuss costs, although not very often. When the women are respondents, there will undoubtedly be a large number of answers, not upon the merits or demerits of the petition, but upon this Clause.
Already, the courts are so swamped with divorce petitions that they have had to be sent to the county courts. I have the greatest respect for county court judges, but they now have to know the common law, which is hard enough, with the various Landlord and Tenant Acts and laws of negligence, they now have to try criminal cases, which is quite a different branch of the law, and then they have to study the complicated divorce law. With the greatest respect, they have neither the training nor the time in their busy courts to deal with such complicated matters, so the new Clause, whatever Members of the Committee may have said, will be impractical. Although it realises the hardships, it does not provide—indeed, I do not think that anyone could provide—a way to solve them.
I want to thank the sponsors for having introduced the new Clause and allowing the House to range more widely over the problems. It is extremely difficult for a layman like myself—I have only only limited experience as a magistrate—to enter into the legal discussion, but what I have heard has confirmed me in my early decision, when the Bill was presented and went to the Standing Committee, on which I sat, to oppose it—not in every detail but in the main sense. Having heard the distinguished legal Members this morning, I realise how many aspects of this problem arise for the courts to decide if real justice is to be done.
I cannot enter into the legal points but I should like to mention how much I regret the fact that a Bill of this kind has been brought forward as a Private Member's Bill—
It is very difficult for me to make my case, Mr. Speaker. I suppose that I can talk in general terms about the new Clause, which is not receiving overwhelming support from those of my hon. and learned Friends whose opinion I would follow, and which I shall continue to follow. It is essential that, if the Bill is to reach the Statute Book at all—I would prefer that it did not in its present form—it should be one of which the House and the country can be proud. I am satisfied that the new Clause does not bring us within reach of a satisfactory solution. It is tremendously important, in the interests of justice, for the protection of both women and men, that we should not go forward with a Bill—
It is apparent from what has been said by my colleagues that the new Clause will not completely meet the situation. I am not in a position to discuss its legal implications, and therefore I shall not attempt to do so. However, having served on the Committee and having endeavoured to add what knowledge I had to the discussions on the Bill, and because this is probably the last occasion on which we shall deal with this matter, I thought it necessary to assert, as I tried to assert throughout the Committee proceedings, that it would be regrettable if we went forward with the Bill without providing a basis for fair decision and ensuring that sufficient guidance is given to the judges who will have a very difficult role to play in connection with the Bill.
Therefore, I am not prepared to do other than follow the guidance given to the House, the country and the sponsors of the Bill by my right hon. and hon. Friends.
My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) put his finger on the difficulty which arises on the new Clause. He pointed out that the burden on the respondent of satisfying the court that the dissolution of the marriage will result in grave financial or other hardship will be difficult to discharge. I am not sure, however, that his view of the wording is correct. The new Clause states:
For the purposes of this section hardship shall include the loss of the chance of acquiring any thing which the respondent might acquire if the marriage were not dissolved.
That conflicts with earlier words which imply that it will be necessary positively to establish that there will be some loss. The words which I have just quoted refer merely to the loss of a chance. I am not sure that there is not a discrepancy.
It is precisely because we wish to make it abundantly clear that even the loss of a chance must be included within the term "hardship" that it has been specified in that way. There is no conflict. It is made clear that
For the purposes of this section
this type of hardship shall be included.
I am grateful to the hon. Gentleman. May I put the argument the other way round, which it is fair to do? If this chance is to be included, there is the implication that other chances may not be included. The implication is that this is the only case in which an expectation is to be included and that in other cases certainty must be established. This point should be considered.
How will the new Clause marry up with subsection (2) of Clause 6? Subsection (2) provides that the court shall not make the decree absolute unless it is satisfied
that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.
I imagine that the new Clause would be imported if the respondent could establish that the provision to be made for her was not reasonable and fair. But then comes the alternative—
or the best that can be made in the circumstances.
That implies that the courts can make an order when something less than reasonable and fair is suggested. This is in direct conflict with the new Clause. If the respondent can establish that there is reason to suppose that something less than reasonable and fair is to be provided for her, that amounts to financial hardship. It may be said that it is merely a question of degree. If so, we are very much at sea.
I am in favour of the Bill. It is my intention to vote for it on Third Reading, but I should not be willing to do that unless I am satisfied that it does not leave women, against their will, with something which is less than reasonable and fair. I am not satisfied about the Bill as drafted, and I am not sure how far the new Clause helps. We should have a better explanation before we pass it.
I oppose the inclusion of the new Clause in the Bill. It is in direct contradiction to the basic principle on which the Bill rests, namely, that
the sole ground on which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably".
If a marriage has "broken down irretrievably", it has broken down irretrievably. A decree must be granted and the courts must make whatever arrangements they can in the circumstances.
The new Clause seeks to qualify the basic principle on which the Bill rests by introducing "grave financial … hardship"—in other words, one law for the rich and another for the poor. The rich man gets his decree and the poor man does not. Then it ambiguously introduces the concept of other hardships which are not defined.
The new Clause also contradicts the basic principle of equality before the law. I hope that, as with the Parliament (No. 2) Bill, the Clause will be thrown out as a result of collaboration between Right and Left.
Those of us who sat through the Committee stage of the Bill would have been more than surprised if my hon. Friend the Member for Yarmouth (Dr. Gray) had not made the speech which he has just made. We have heard it three or four times before, on almost every occasion that he has had an opportunity to make it. Some of us find it extremely difficult to follow his reasoning. In fact, it does not seem to be reasons; it seems to be unreason.
I support both Amendments proposed by the right hon. and learned Member for Chertsey (Sir L. Heald), although I am more concerned about the Amendment in line 3, which requests that the words "or any child" should be inserted after "to him". It is a remarkable co-incidence that the one thing which is absent from the Bill is any reference to the welfare of the children of the first marriage what I call "the forgotten factor." It is outstanding and one cannot miss it. Although we are now trying to persuade the sponsor—
Has my hon. Friend not noticed that the new Clause specifically mentions the word "children"? We are asking the court to weigh all the circumstances including the circumstances of the children. The words in the new Clause are:
and of any children or other persons concerned.
That is why I was surprised that, although those words were inserted in line 6, they did not appear in the first three lines. I could not understand it. If those words appear in line 6, what objection is there to their being included in the third line after the words "to him"?
My hon. Friend the Member for Rhondda, West (Mr. Alec Jones) must understand the reason for our anxiety. One of the supporters of the Bill, the hon. Member for Yarmouth, has given the House cause for great anxiety. He said during the proceedings in Committee:
It says that a decree shall be pronounced only if '… it is clearly in the child's or children's interests to do so …' Against this, I maintain that the children's interests must come second."—[OFFICIAL REPORT, Standing Committee B, 5th March, 1969; c. 251.]
This is doctrine to which some of us could not possibly subscribe, especially when the victims are the children of the first marriage and not of the subsequent marriage which may take place as a result of the divorce.
We as members of the Committee requested the Solicitor-General to give the Committee the benefit of the Government's advice on this matter and he was good enough to do so. He is a great personal friend of mine, and I hope that he will favour us with his advice again this morning and will put the matter on record so that there should be no doubt.
The advice given to the Committee by the learned Solicitor-General was:
In the view of the Government"—
I am reading from what the learned Solicitor-General said at the sixth Sitting of Standing Committee B, on 5th March, in column 234. He said:
In the view of the Government it is, of course, of the greatest possible importance"—
those are strong words; I have never used words like those, though I did speak strongly in the Committee—
that full and proper regard should be had for the position of the children of broken marriages. Both the hon. Member for Chelsea (Mr. Worsley) and the hon. and learned Member for Southport (Mr. Percival) appeared to feel some anxiety"—[OFFICIAL REPORT, Standing Committee B, 5th March; c. 234.]
about the language of the subsection. He concluded that what Section 33 of the 1965 Act does is to require that before a court shall make absolute a decree, it must be satisfied with the arrangements for the care and upbringing of the children under the age of 16. One cannot have anything clearer than that. Why on earth will not the sponsors include those words in the third line?
They must forgive us if we are a little suspicious of their motives when they do not agree to accept what almost everybody present today feels is a reasonable request by the right hon. and learned Member for Chertsey for whose help on the Bill we must all pay tribute, as well as for the help of the hon. and learned Member for Oldham, West (Mr. Bruce Campbell).
This has been a painful business for some of us who have not liked the sittings on this Bill. Let us be frank about it, we think that it is a shocking Bill.
I thought, Mr. Speaker, that I should be in trouble before very long. I defer to your Ruling. I think that I have made the point that I wanted to make. I am surprised at the actions of my hon. Friend the Member for Rhondda, West. He is a Welshman and the Welsh are a warm-hearted people, a great family nation. Yet the benches behind him are almost denuded of any support from his own colleagues. I find it difficult to understand, except to say that the Bill cannot comment itself—
I suppose at this point I have offended my hon. Friend the Member for Rhondda, West. I apologise to him if I have offended him. I hope that he will forgive me, but I was feeling that way. Perhaps he will now see some sense and stand up and say "Yes, I accept this Amendment."
It would be ungracious not to recognise that, in one respect, this new Clause is an improvement on the Clause which it replaces and that it meets a point which was raised in Committee. The point related to the effect of the Clause, whether it would provide a defence to proceedings, and, if not, how it was to work. That is clarified in the opening sentence of the new Clause. To that extent the new Clause is an improvement on the Clause, and I hope that it may take its place.
It would be optimistic of the House to suppose that in the formula which is now before us the wording is devoid of all doubt and provides a nice, clear wording which raises no legal complications or difficulties, which is the distinction I draw as to its working.
As the right hon. and learned Gentleman the Member for Epsom (Sir P. Rawlinson) said in Committee yesterday, it is the optimism of this House which provides the lawyers with a living. Nevertheless, we still go on, at the expense of our own livings, trying to ensure that the wording with which this House parts is wording which we can understand when we come to it professionally as colleagues, and which possibly on occasion our lay clients might even be able to understand—although perhaps that is asking rather a lot.
It is fatuous if we in this House turn out legislation which is further material for litigation. In this respect I hope that the sponsors will have another look at the new Clause in order to see whether they can improve it in the later stages of the Bill.
In the interests of brevity, I will give an indication of the two broad lines on which I respectfully ask them to look at the matter again. My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) has raised a point of interpretation and I understand that there may well be something in it on the lines put forward in an intervention by the hon. Member for Pontypool (Mr. Abse).
We want to avoid argument. If the words "grave financial … hardship "are meant to cover any possibility of future loss, why not for "will" substitute the word "may"?
With great respect, Mr. Speaker, I am not putting forward any Amendment, but trying, as briefly as possible, to illustrate the point. I think that, if you will bear with me, that will prove to be shorter than trying to put it in another way.
My objection to the Clause is that it has two possible meanings. If the intended meaning is that put forward by the hon. Member for Rhondda West (Mr. Alec Jones) in his intervention, and by his hon. Friend the Member for Pontypool, would it not be advisable for them at a later stage to substitute "may" for "will"? I submit that, otherwise there may be an argument that, prima facie, it is only where positive financial hardship is established that this comes into operation and that the last three lines merely bring in a particular proviso. It would be optimism on the part of the sponsors or the House to suppose that we now have wording that is free from doubt. That is what we all want to have, so I hope that the promoter and his friends will give further consideration to the wording.
The hon. Member for Rhondda, West took exception to the complaint made by the hon. Member for Bristol, South (Mr. Wilkins) about the paucity of references to children, if I may put it neutrally, and pointed out that the Clause refers to children and their interests. I take it from that remark that it is the hon. Gentleman's intention here to give the court jurisdiction to say that if it thinks that in all the circumstances, and having regard to the interests of the children, it would be wrong to grant a decree, it may dismiss the petition.
If that is the intention, I submit that the wording now chosen will not lead to that result. It is still a condition precedent to the exercise of this jurisdiction by the court that the respondent must establish that the granting of the decree
… will result in grave financial or other hardship to him …
The effect would be that if a respondent filed an answer setting out the Clause, the court would then have to inquire into the conduct of the party, their interests, the interests of any children or the interests of any other person concerned.
If the court came to the conclusion that having regard to the conduct of the party or to the interest of the children or other parties concerned there ought not to be a decree, it still could not exercise its jurisdiction under the Clause unless it also came to the conclusion that to do so would cause grave financial or other hardship to the respondent—not to the children or to the other interested parties.
The Clause would therefore still preserve as a sine qua non that the respondent must prove grave financial or other hardship. Unless he did that, it would not matter what conclusion the court came to in relation to the interests of the parties or of the children. Unless the respondent established that sine qua non, the court, whatever conclusion it might come to on the other considerations, could not exercise jurisdiction under this Clause.
I do not believe that to be the intention of the promoter. It is a result wholly inconsistent with his last intervention when he said that under the Clause the court must have regard to the interests of the children. If that is what is intended, some alteration must at a later stage be made to the wording. Otherwise, those responsible for the Bill will be introducing something which on the face of it, appears to give the court jurisdiction to have regard to the circumstances, including the interests of the children, and then puts on the court this very severe limitation that it cannot exercise this jurisdiction unless there is proved to be grave or other financial hardship to the respondent.
Therefore, while I welcome part of this new Clause, as it is an improvement in that respect, I hope that the promoters will reconsider the wording still further, so that we shall not have yet another instance of legislation leading simply to a lot of litigation and producing a result not intended by them.
My views on the Clause and the Bill are well known. My hon. Friend the Member for Rhondda, West (Mr. Alec Jones) says that in this Clause he has considered the main interests and welfare of all the children. In this respect, I agree quite categorically with what has been said by my hon. Friend the Member for Yarmouth (Dr. Gray) and by the hon. and learned Member for Surrey, East (Mr. Doughty). I go further, and say that if the nation considered the overall interests of the children before considering the interests of the parties concerned in the marriage, divorce would be a very rare occurrence because, primarily, it is the welfare of the children that marriage is all about.
It has been said that under this Clause 99 per cent. of people would not be able to afford a divorce. I do not know of one family in my constituency that could afford to keep two homes going. We on this side particularly know that it takes a father and mother all their time, all their interest and all their money, morning noon and night, to maintain the interests of their family, to do the right thing and to keep that family together. That is the purpose of marriage. Therefore, if we pursue the lines on which the sponsors of the Bill are bent—and it is quite out of character—we shall be speaking for the rich, and for the very rich. They would examine only the conditions of the poor and not the turmoil of the rich family. If one cannot succeed on a financial basis in satisfying those examining one's case, the financial needs and all the other sordid aspects will have to be considered. Do hon. Members think this is a right thing to do?
I do not think the Clause is workable. It is discriminatory between the rich and the poor. The hon. and learned Member for Southport (Mr. Percival) said that it is the optimism of this House that provides lawyers with a living. About another lawyer it was once said:
For your legal cause or civil
You fight well and get your fee,
For your dream of God or Devil
You will answer not to me".
I hope that the two hon. and learned Members will not be answerable to me in this case because I have enough to answer for myself.
The Government have an obligation here and they have indicated their obligation towards the Clause. As my hon. Friend the Member for Bristol, South (Mr. Wilkins) said, they were to make a very important statement from the point of view of social security as to what would happen to the children of a broken marriage. The Clause deals precisely with that subject. I am rather surprised that up to now the Government have not declared their intention. It would be extremely helpful to us in making an adjudication if we knew whether they give tacit support to the Clause and if the Government would declare where they stand.
My hon. Friend the Member for Bristol, South (Mr. Wilkins) said that many of us have great fears about this Bill, and particularly this Clause. In my view that is putting the position very mildly. I have had many letters in recent days and months, in fact for a year past, from members of women's organisations. I share their perturbation and great fear as to what might be the outcome of some of the rather devastating Clauses in the Bill.
The question of financial protection for a divorced spouse and the family is of such paramount important that it cannot be regarded in any cavalier manner. I am glad that you have ruled that conduct can be referred to, Mr. Speaker, particularly as those of us who have had magisterial experience over many years know that petitioners endeavour to achieve their desire to be divorced or separated without any realistic sense of responsibility even towards their own family who invariably are the sufferers in a divorce.
When people seek divorce they can be very ruthless, callous and unkind to the dear people with whom they have lived for many years and who have served them well during marriage and togetherness. The possibility of grave financial hardship being the lot of those who have served one partner or the other in marriage seems at the crucial time when divorce is being sought to be the least of their considerations. In their estimation at this time these considerations are more or less unimportant. In their view the end—divorce—justifies the means.
If the people concerned are not particularly bothered about the financial arrangements, Parliament, and eventually the community, must fill the gap, and an unbridgeable gap it could prove to be. This is occupying the attention of my hon. Friends at the Treasury who want to know just how far they can go in endeavouring to bridge this unbridgeable gap, which more often than not is beyond the competence of those engaged in divorce to handle. This causes me the greatest possible concern, as I believe eventually it will cause great concern to the people of this country.
I have never been afraid to confess that I take pride in the fact that I possess a religious faith. By the same token I have always wanted to pay my just dues, but I do not want to make any contribution in this regard. I think that I ought to be able to say that from a financial point of view I and people who think like me should be allowed to say that we shall not concur in the building-up of another Casanova's Charter.
Order. That part of the hon. Member's speech would be in order when we discuss the social security measures which Her Majesty's Government propose to bring before the House, but now we are discussing a Clause which empowers the court to take certain circumstances into consideration as a means of refusing a divorce. The hon. Member must come to the Clause.
I resent the discriminatory nature of the whole of these procedures whereby certain people can take advantage of whatever arrangements we make while others according to the Clause will be at a loss. Things happen quickly in marriage. They say that marriages are made in Heaven but invariably they end somewhere else. The other day I heard of a lady who said, "Come quickly, Bill. My kids and your kids are knocking hell out of our kids". I hope we never reach that position.
Order. Even stories that are funny can be sometimes be out of order. The hon. Gentleman must not discuss the Bill. He is tempting himself to discuss the Bill, which I gather he is not very keen about. We are, however, debating the question whether new Clause 1 should be added to the Bill in place of a Clause which would then be taken out later. The hon. Gentleman must come to that proposition.
Like my hon. and learned Friend the Member for Surrey, East (Mr. Doughty), I was not a member of the Standing Committee. I am therefore a stranger to anything that happened in Committee. I wish to raise the question of the social security relationship to this Clause and to new Clause 6.
As my hon. and learned Friend said, the judge in any case in which the new Clause were invoked would be put into an impossible position in trying to interpret the question of grave financial hardship. Over many years since the war Parliament has attempted to legislate so that nobody is in grave financial hardship. Through an elaborate series of social security provisions, which are becoming more complicated and more generous every day—I am not criticising—we endeavour to ensure that a man or woman, with or without children, is in all circumstances protected.
On a point of order. In the case of a divorce where the respondent has not sufficient money to maintain two homes, will not the family of one party or the other, or perhaps both parties, become a charge on social security?
I do not seek to debate the social security measures. I was calling the attention of the House to them so as to support the point which I am about to make. In talking of grave financial hardship, there must be some semblance of a criterion. Parliament has legislated so that in theory nobody is in grave financial hardship. Therefore, when the judge is considering the question of grave financial hardship he must be able to compare the condition of the respondent, if the divorce goes through, with something. As I understand it, to that end my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) has tabled new Clause 6, which would force the judge to consider the respondent's financial position, if the divorce were to go through, with the financial position of any other parties concerned. There at once the judge would have something on which to rely. He could balance one side against the other.
I therefore ask you, Mr. Speaker, whether at the end of this debate it would be possible for the House to consider first new Clause 6, and to divide upon that, if that is the wish of the House, because on the result of the debate and, possibly, Division on that new Clause will depend for many of us our attitude towards new Clause 1.
The argument which has been advanced by the hon. Member for Liverpool, Garston (Mr. Fortescue) is persuasive. It is important for the House to satisfy itself about the criteria on which hardship is to be defined before it reaches any considered decision on the issues raised by New Clause 1.
I intervene to raise two points. The first arises from the contribution, which I gather was in character with his Committee interventions, made by my hon. Friend the Member for Yarmouth (Dr. Gray). He argued—there was an enormously simple logic behind the proposition—that if a marriage has broken down irretrievably, it has broken down irretrievably. On that basis I suppose we could all go home.
However, I think that that is rather over-simplifying the issue. Although it may be true that when a marriage has broken down irretrievably it has broken down irretrievably, not all marriages have broken down irretrievably and it is important to devise a social system—a legislative framework—which will discourage marriages from breaking down irretrievably. However valuable the deterrent implied in new Clause 1 and in the general range of Amendments we are discussing might prove to be in the event, it is better to have at least some deterrent against behaviour which is selfish, and even cruel, than to have no such deterrent.
My second point is perhaps rather more material. I must be one of the few Members, no doubt because I did not have the benefit of serving on the Standing Committee, who in general is rather more inclined to favour the original Clause 4 than new Clause 1. Furthermore, I suspect that were Clause 4 to be amended in the way which was suggested by the hon. and learned Member for Oldham, West (Mr. Bruce Campbell), it would be considerably improved.
My main reservations about new Clause 1 lie in the final three lines, although I have certain other reservations which were referred to by the hon. and learned Member for Southport (Mr. Percival). The Clause would require the
courts to read the tea-leaves with a vengeance, in interpreting the words—
hardship shall include the loss of the chance of acquiring any thing …".
There are gamblers and gamblers. I understand that some are happy to invest at odds of 1,000 to 1 against. I suppose it is defying the law of chance. If the Bill does not spell out in some way the degree of chance which might be involved, we might well inadvertently be introducing a criterion which would make it much more difficult in the future to obtain divorce when marriage has irretrievably broken down than is the case at present.
After all, all of us have our chances. Some of us have more chances than others. If all of us were to speculate about our future, particularly at this moment, we might not regard our chances as being very high. If we were to take a more sanguine and long-distance view, we might well believe that in the fullness of time, we, too, shall come into our inheritance.
Mr. Speaker, you have anticipated my intention of going on immediately to the second part of the ultimate sentence in the new Clause—
which the respondent might acquire if the marriage were not dissolved.
We are here in a very cloudy, hypothetical, speculative world. I have already referred at length to "the chance". We now have another form of words which will make it inevitably very difficult for the courts to apply any sort of consistent policy. It is impossible to foresee the future.
I appreciate the intentions of the sponsors of the Bill in trying to introduce this proposal; I fully understand this; and, indeed, I am in sympathy not only with their intentions in this respect but with the Bill as a whole, but I do feel that perhaps the original Clause 4 would, on the whole, have been perfectly competent to deal with this sort of problem. That Clause already gives protection if the respondent can foresee that the dissolution of the marriage would result in
grave financial or other hardship to him.
It seems to me, therefore, to follow that if the respondent can indicate that on a balance of probability about his or her future prospects there is going to be hardship entailed in the future the court has already discretion to act, and not, as seems to me to be implied, only were these three lines in new Clause 1 are to be added.
Therefore, I do wonder in all seriousness whether by elaborating, in effect, this Clause, by bringing in a lot more verbiage, which is bound to involve subjective judgments, we shall make it extremely difficult for the courts to have a consistent policy. We shall find that judgments in some cases are completely contradicted by those in others. I am in favour, in general, of the shortest wording possible consistent with the complexity of what is a difficult issue.
I would refer, if I may, without straying outside the rules of order, to a point which the hon. Member for Garston mentioned a short time ago, that inevitably there will be great ambiguity about the future provisions for financial assistance for those who may fall within the ambit of this Bill. We have already had clearly indicated to us that the future provision of social benefits is at present ambiguous. If that is ambiguous, nearly everything else about a respondents' future financial situation is equally ambiguous, and this can create a degree of difficulty in defining in some sort of quantitative way the degree of ambiguity which is probable. I suggest that this may well in practice mean that as time goes on the hands of the courts will be tied by precedents, which will make it more difficult to grant a divorce where a marriage has irretrievably and obviously broken down. This will run counter to the intentions of the sponsors of the Bill.
I was not a member of the Committee on the Bill, and I do not pretend for a moment to be an expert on divorce. I have, however, because of the interests of my constituents, endeavoured to follow the proceedings of the Committee. My own experience of the law is limited purely to building contracts, where we always take the view that the shorter the clause the easier it is to understand. I have listened, in consequence, with much interest to what my hon. and learned Friends have had to say; they seem not to have declared an interest but they do seem to know an awful lot about it.
I am persuaded that an effective decision for a decree of divorce must depend upon the ability of the injured parties to have their interests sufficiently looked after. I take the point which my hon. Friend the Member for Liverpool, Garston (Mr. Fortescue) has made. In spite of what was said about the length of the Clause, what concerns me is that this Clause would be more appealing to me were it possible for new Clause 6 to be voted on before this new Clause 1. I wonder if it would be possible, within the rules of order, for that to be done.
I thank you for that Ruling, Mr. Speaker, although it makes my position much more difficult. If it is not possible to decide on new Clause 6 first, I wonder whether, within the rules of order, the sponsors of the Bill would care to give the House some indication of what is their attitude to new Clause 6.
I am sure that the hon. and learned Member for Southport (Mr. Percival) is right to remind us that we are discussing these Amendments with the pessimism of lawyers. Indeed, it is this pessimism which we have to overcome. That does not mean that the difficulties of interpretation, or the assurances which have been mentioned, too, by the hon. Member for Hendon, South (Sir H. Lucas-Tooth), are the sort of difficulties to which the sponsors of the Bill will not continue, in the way they have, and in the way they have brought forward this new Clause, to give careful consideration. The intervention I made in an endeavour to assist the very cogent point being made by the hon. Member for Hendon, North is, I think, the prevailing attitude as at present among the sponsors. We are grateful to the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) for having brought forward his new Clause as a result of his persistence, with the encouragement and help of his right hon. and learned Friend.
Could we get this quite certain? Is the hon. Gentleman saying that as far as the sponsors are concerned they do wish that the word "will" shall be interpreted, roughly speaking, as if it were "may"? Is that their intention?
The only issue to which I was referring was the fact that the hon. Member was suggesting that there could be conflict with the subsequent Clause. I think he has not sufficiently appreciated that it will be possible under the subsequent Clause to have definition in so far as in one case the respondent will be filing a defence, and in the other case he will not. Therefore I suggest that he may find, and we may find, when we examine the point he has made, and to which he was drawing attention, that it is largely illusory. Certainly I will tell him that we will examine the point he has made.
I think that the hon. and learned Member for Surrey, East (Mr. Doughty) and the hon. Member for Yarmouth (Dr. Gray) have between them drawn attention to what to some extent is the crux of the matter. The hon. and learned Member for Surrey, East is quite right to point out that, half of the Clause being very permissive, it is in no way extending the rights of divorce, that in many senses, as he well implied, it is a more restrictive Clause. I am not surprised, therefore, that my hon. Friend the Member for Yarmouth, very vigorously, as is his wont, objected, because the fact is that this Clause will mean that in every case, as the hon. and learned Member for Surrey, East pointed out, it will be open to advisers of someone on whom a divorce petition has been served to examine whether there is grave financial or other hardship, and it will in theory be possible for them to contemplate the possibility of filing a defence. I do not, however, take as pessimistic a view as the hon. and learned Member. This will mean that advisers, looking at the facts, and knowing it will not only be grave or other financial hardship to be considered, will be looking in great detail at all the circumstances of the case, as delineated in the new Clause. I do not think it will have the result he fears, but I am grateful to him for drawing the attention of the House to this.
I hope it is understood by the hon. Member for Bristol, South (Mr. Wilkins) that this Clause, if he is really seeking to vote against it, is a Clause which is bound to cause unease, not only to the hon. Member for Yarmouth but many others who have been in touch with me. If we are to get a more rational divorce law on the Statute Book, we are conceding that, in certain aspects, we are making the present law more restrictive.
I am following my hon. Friend's argument with care. It would appear that his argument can stand up in the eyes and ears of intelligent men only if he has foreknowledge of what the Government are going to do about social security.
I do not think that the hon. and learned Member for Surrey, East, in spite of his experience on the Bench and as a practising lawyer, has fully grasped what we are talking about. It will be possible in every divorce case—in the adultery case, in the old cruelty case and as it is under the Bill—to file a defence in a way which hitherto has not been possible. It is right that he should indicate that there could be administrative difficulties, although I do not think that these are likely to arise in the manner in which he, in a somewhat Cassandra fashion, has pointed out.
Where a respondent has committed adultery a couple of times, and the petitioner is a rich person, the respondent will be unsuccessful in opposing the divorce. The same position arises with a poor petitioner; the respondent will then be successful in opposition. The question is how many £s a week will compound for a couple of acts of adultery?
However ingenious we may seek to be, advantages will always remain in the hands of the rich as against the poor. Although that is bound to happen with any legislation, as matters unfold, it will be seen that we have done all that we can to give equality to poorer people.
The right hon. and learned Member for Chertsey (Sir L. Heald), who has made such an important contribution throughout the proceedings and can, with the hon. and learned Member for Oldham, West take some responsibility for the new Clause, has now sought, with the best intentions and with a sense of compassion, to direct attention to the question of the child, or, as he has put it, any child. Since these proceedings have gone on for so long, no sponsor takes legalistic points on drafting, but there are difficulties in the manner in which the right hon. and learned Member has drafted the Amendment, since obviously it cannot be "any child", and I assume that he has in mind "any relevant child".
The crux of the matter here and the difference between us lies upon this. The sponsors of the Bill from the beginning have regarded it as quite inappropriate that the position of children should in itself be a ground for opposition to divorce. The interests of children must be considered and protected, and that protection is achieved to a large extent by Section 33 of the Matrimonial Causes Act. I and those who support the general principles of the Bill would regard it as quite wrong to make children the cause of their parents' failure to be relieved of the shackles of a dead marriage. That is why I would oppose the right hon. and learned Member's Amendment, well intentioned though it is. I do not believe that that is the best way to seek to protect children. We must all the time have in mind that what causes hardship to children is the breakdown of the marriage and the disruption of the home. But we are here dealing with a marriage which has been found to have irretrievably broken down—
I presume that the hon. Member for Pontypool (Mr. Abse) accepts that the doctrine that he is now expounding is in complete conflict with the opinion of the Government on this, according to what I earlier read to the House. The hon. Member is now asking hon. Members to accept his viewpoint against the advice of the Government, the Law Officers and everyone else.
The hon. Member has misinterpreted what the Solicitor-General has said. The Solicitor-General in the quotation to which my hon. Friend referred was giving guidance on the protection which exists under Section 33 of the Matrimonial Causes Act, which requires the court to be satisfied before granting a decree as to the arrangements for the care and upbringing of the children. The hon. Member is making a mistake in suggesting that I am in any way in conflict with the view put forward by the Solicitor-General. On the contrary, I am seeking to point out that what we are not prepared to do is to take any action which causes the children to be used as a football between the parties in a way which would become possible if the children could be regarded as the cause of the parents' failure to be relieved of what one or both parents regard as the shackles of a dead marriage. For those reasons I cannot support the Amendment.
A totally different situation arises on new Clause 6 from that which may have arisen in Committee on what I would describe as the defective Clause 4 in which, in particular, the hon. and learned Member for Oldham, West illuminated serious defects. New Clause 6 would create a situation which could cause great difficulties. It must be obvious to every lawyer in the House that it would be singularly inappropriate that there should be a separate Clause dealing with this aspect of Clause 4. Any limitation should be part of the new Clause. Secondly, and this is the important point, it would be undesirable to limit the court's discretion and prevent it having regard to other aspects which may be relevant in particular cases.
That is not how I interpret it and, on the advice I have taken, that is not how it is to be interpreted. It is because of that, and because I am satisfied that the new Clause gives, as it should, proper discretion to the court to concern itself with all the circumstances of the case, that the sponsors of the Bill are not able to support it.
The hon. Member for Bebington (Mr. Brooks) drew attention to the last few lines of the proposed new Clause. He has been generous enough to say that he understands the intentions of the sponsors here. We are deeply concerned that there should be no ambiguity, and that the possibility of the chance of a pension should be in no way ignored. Were those lines, which he queried with such wit, not inserted, it could be suggested that if the wife is pre-deceased by the husband no pension would fall to her, and we are anxious that that position should not arise, and that it should be a duty imposed on the court to take into consideration the question of the possibility of the chance. We are not being wildly speculative; we have sought to protect the woman in such proceedings who otherwise may be in serious difficulty.
It is for all those reasons that I ask that new Clause No. 1 should be accepted and the Amendments rejected. I sincerely hope that the right hon. and learned Member for Chertsey, who has made such an important contribution in giving us new Clause No. 1, will not fall into the trap which has been offered to him by my hon. Friend the Member for Yarmouth (Dr. Gray) and that we can proceed immediately to deal with all the Amendments.
I would like to find out a little more about the merits of the two new Clauses. This was the one point on which I had a difference with the sponsors of the Bill in Committee, and I voted against the original Amendments. As this is a very important matter, I wonder whether it would be possible for the Solicitor-General to give us the benefit of his advice, because every one of us must make up our minds on this point. I should be grateful for the Solicitor-General's help.
Since we have had an important speech in clarification of the intentions of the new Clause from the hon. Member for Pontypool (Mr. Abse), I hope that I may be permitted to make one or two brief observations. First, I wish to apologise that I was not able to be present from the beginning of the discussion on the Clause, but I trust that what I say will follow on from what the hon. Member has just said and will not be redundant or out of place.
The hon. Member for Pontypool said two things that, I thought, were striking and extremely damaging to the Bill. He said that the Clause would in effect be restrictive. He also said that there should be equity for poorer people, too. I know that throughout the discussion since the Bill was presented there has been among the public, and certainly among people in my constituency, a great deal of anxiety that it would result in financial hardship in certain circumstances.
I have not attempted to take part in the discussion of the Bill up till now because I have felt that it was good in principle. As I read through it again as it has been amended in Standing Committee, I still think that it contains many things which are valuable and right. In particular, I still welcome the contents of Clause 1, which is so plain and specific—that
a petition for divorce may be presented to the court by either party to a marriage.
on the sole ground
that the marriage has broken down irretrievably.
Immediately, however, exceptions are introduced.
Are we to deem that a marriage has not broken down irretrievably if the parties to it are not sufficiently well off to be able to accept the consequences of divorce? Obviously that is not its meaning, but by new Clause No. 1 that would be the effect. There would be certain instances in which a marriage had plainly broken down irretrievably, in which the circumstances were tragic or hilarious but, at any rate, conclusive, and yet in which the court had to deem that the marriage had not broken down irretrievably because of the hardship that would result.
Clause 4 was an attempt to deal with that situation. New Clause No. 1 is an attempt to deal with it. It is objectionable to hon. Members on this side—and, I would have thought, certainly to hon. Members opposite—that there should be one law for the rich and another for the poor.
I therefore ask the sponsors of the Bill to consider this a little more carefully. Can they not hold on to what is good in the Bill and then find means of dealing with the questions of financial hardship and the need to protect the spouse or the children by other means, rather than reversing in their tracks and saying that they do not intend that the operation of Clause 1 shall apply throughout the whole range of possible circumstances that may come before the court?
I hope that my words will carry weight with the sponsors of the Bill, otherwise I feel that it will run into difficulties from the first and that if it comes into effect, we shall immediately find in the courts that considerations of financial matters will be paramount rather than the circumstances of the two unhappy people and their lives together.
My concept of marriage is that it is primarily a moral contract and not a financial one. If we are to contemplate the circumstances in which marriage comes to an end, we must contemplate them primarily in the light of moral considerations—the inter-relations of the parties and the nature of their characters, and not their financial environment.
I looked at the Bill as it came back from Standing Committee and I felt that it had not been improved, in the sense that throughout reference is made again and again to the financial circumstances of the parties. This reflects wrong thinking fundamentally on the nature of matrimony. It indicates the view that the contract is primarily financial and that the financial circumstances must be paramount in any considerations that the court may take into account as to the dissolution of the contract.
This is where I part company with the sponsors of the Bill. Although I recognise entirely the value of what they are trying to do in bringing order and light into the complex legal situation which has grown up round divorce—
Does not my hon. Friend appreciate that a woman who gives 20 years of her life to a man must at the end of that time, if then thrown aside, suffer severely financially and that the sponsors are quite right in putting financial protection at the forefront of their Bill?
Of course I recognise that, but if we are to stand on the ground delineated so plainly by Clause 1—if the court has to ask whether the marriage has or has not broken down—let us be absolute about it. Let the court confine itself to those considerations and afterwards, if the Bill is to receive public approval, the sponsors must find ways of dealing with the question of financial hardship as a separate matter, as a consequential issue. They should not say that these problems of financial hardship are so grave that they must immediately back-track on their principles and virtually say that for the poor breakdown of marriage may not be considered by the court and that it is only for the very rich. This is deeply objectionable, and the sponsors of the Bill should think again about it.
My task as I have understood it in the consideration of the Bill, both upstairs and now at this stage, has been to assist the Committee and the House as well as I can on questions of law arising and on questions of interpretation. That is how I see the task which I have to perform. The House will permit me to mention that I think it is only this view of my function that is consistent with the neutrality which is the attribute of the Government's position in this matter.
I mention in passing that I believe it to be of great importance in the House of Commons that it should be clearly recognised that to give time, and even, it may be, to give drafting facilities and facilities of that kind to a particular Measure which deals with problems of the very greatest social importance to the community as a whole, is entirely consistent with neutrality on the part of the Government.
The Government, in giving the facilities to which I have referred, are taking account of the importance of problems which everybody feels it is desirable to solve and to clear up in the national interest. The Government desire Parliament to come to a conclusion upon these great matters.
The Government, in the view of many hon. Members, have afforded a tremendous amount of Government and Parliamentary time to so-called private Bills, including this Bill, of great social importance. Some of us regret this. But does not my hon. and learned Friend think, coming from Liverpool, as I do, that the introduction of the Merchant Navy Shipping Bill might have been more important?
I have endeavoured previously to deal with the Government's position on this Bill, because it is desirable to get it clear. But I should say about the intervention of the right hon. and learned Member for Chertsey (Sir L. Heald) and the helpful intervention of my hon. Friend the Member for Bootle (Mr. Simon Mahon) that it seems axiomatic that we have certain classes of legislation of great social importance, such as we are now considering, on which opinion departs from ordinary party divisions. In that sense—and the right hon. and learned Gentleman must permit me to follow this up—I submit that it is appropriate that the Government should follow the course of providing the opportunity to the House to arrive at and, to that extent, facilitating a decision of he House upon matters of this importance.
That is our position on this matter, but, as I say, that does not diminish in the least degree the duty that I have, which I mentioned earlier, to deal with points of law that may arise. I intervene for that purpose, largely because of the direct invitation to do so which the hon. Member for Plymouth, Devonport (Dame Joan Vickers) put to me. I have not intervened previously—it may be that I would not have intervened at all but for what the hon. Lady said—because it seemed to me that in the debate on this new Clause questions of law, in the sense that I apply to the term, had not arisen, although one or two matters arose which came near them.
My hon. Friend the Member for Bristol, South (Mr. Wilkins)—whose personal reference to myself I appreciate and reciprocate—mentioned the argument that I presented in Committee when I dealt with the effect of the Clause which we were then discussing upon Section 33 of the Matrimonial Causes Act, 1965. In my treatment of the matter then I explained that the language of Clause 2—
I must point out to the hon. Member that, in accordance with Standing Orders, that point of order cannot be raised after eleven minutes past One o'clock.
I was saying that Clause 2 appeared to me to leave unaffected the provisions of Section 33 of the Matrimonial Causes Act, 1965. What I said then about Clause 2 is applicable in like measure to this new Clause. I trust that will give some satisfaction to my hon. Friend.
Another point that arose which may well be regarded as a point of law, was the correct construction of the language of the Clause, the point referred to by the hon. Member for Hendon, South (Sir H. Lucas-Tooth). I listened with great care to what my hon. Friend the Member for Pontypool (Mr. Abse) had to say about that, and I echo the view that he expressed. I understood him to say that he would like to look at this point in the light of the argument. By all means. I think that a possible conflict in the overlap between this new Clause and Clause 6 needs watching. That was my impression. But there is substance in the distinction which my hon. Friend sought to draw between the case of the respondent filing in effect a defence and the case where he does not do so. I agree that there is a point there and I am glad that the sponsor is going to look at it.
It would be wrong for me to go any distance at all in seeking to guide the House on the interpretation which I think that a court is likely to apply to the expression "grave hardship" in this regard. I feel that I ought to be extremely careful before doing anything like that. I will say that the courts will have regard to the issue of gravity in all the surrounding circumstances. I do not think that I should go beyond that. However, I suggest that it is often desirable—and I think in this instance it is desirable—for a Bill to use—
—an expression of general application and to leave the interpretation of it to the judges. That is what we are doing here. I have referred in other connections to the law governing the interpretation of statutes when one comes to deal with an expression of general application. Its generality is limited only by a consideration of its fitness for the purpose with which the statute is concerned. Subject to that, I do not think that there is any limitation which I could properly indicate would be applied by the judges in their consideration of an expression of this kind.
I think that hon. Members would be profoundly disappointed if my hon. and learned Friend did not give us the benefit of his advice and this matter were left within the jurisdiction of the judges. If that were to happen it would be a cause for lamentation in this House.
I have a duty to my hon. Friend as I have to every other hon. Member to explain what I conceive to be the effect of language in a Bill. There would be a real danger, and it would be no service to the House, if I were to launch out into an anticipation of the treatment which judges will apply to the expression "grave hardship".
I do not agree with that view. I take the view that it is proper, to use a phrase like "grave hardship". We might have said "hardship", and left it there. The effect of introducing the expression "grave hardship", instead of simply making a reference to hardship, is in itself an important indication to the judges of the intention of Parliament in this regard.
I think that the Solicitior-General is too modest. The House is longing for the hon. and learned Gentleman to launch out. That is what we are all here for. Will he please launch out and give us some legal guidance, because that is what the House wants. We want legal guidance from one of the Law Officers of the Crown who is charged with the duty of giving legal guidance to the House. Will the Solicitor-General please launch out so that we know where we are, which we do not at the moment.
I suggest that the sponsors of the Bill have given a clear and fair account of the effect of the Clause. It has been conceded that this all arises from their genuine and objective endeavour to meet criticisms of the Clause as it originally appeared in the Bill, and which derived from the hon. and learned Member for Oldham, West (Mr. Bruce Campbell).
I think that the criticisms correctly levelled against Clause 4 have been substantially met by the new Clause, and that broadly the safeguards on the issue of financial hardship occurring in the language of the Clause are appropriate to the requirements of the case.
|Division No. 167.]||AYES||[1.27 p.m.|
|Abse, Leo||Haseldine, Norman||Peart, Rt. Hn. Fred|
|Albu, Austen||Henig, Stanley||Prentice, Rt. Hn. R. E.|
|Atkinson, Norman (Tottenham)||Hobden, Dennis||Price, Christopher (Perry Barr)|
|Bidwell, Sydney||Hooley, Frank||Rees, Merlyn|
|Booth, Albert||Howie, W.||Richard, Ivor|
|Bottomley, Rt. Hn. Arthur||Irvine, Sir Arthur (Edge Hill)||Roberts, Gwilym (Bedfordshire, S.)|
|Boyle, Rt. Hn. Sir Edward||Jeger, Mrs. Lena (H'b'n&StP'cras,S.)||Robinson, Rt. Hn. Kenneth (St. P'c'as)|
|Brooks, Edwin||Johnson, Carol (Lewisham, S.)||Shaw, Arnold (Ilford, S.)|
|Buck, Anthony (Colchester)||Johnston, Russell (Inverness)||Sheldon, Robert|
|Cant, R. B.||Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Short, Mrs. Renée (W'hampton, N. E.)|
|Carmichael, Neil||Jones, T. Alec (Rhondda, West)||Sinclair, Sir George|
|Chapman, Donald||Judd, Frank||Skeffington, Arthur|
|Coe, Denis||Kerr, Russell (Feltham)||Spriggs, Leslie|
|de Freitas, Rt. Hn, Sir Geoffrey||Lipton, Marcus||Strauss, Rt. Hn, G. R.|
|Dewar, Donald||Luard, Evan||Urwin, T. W,|
|Dunnett, Jack||Lyons, Edward (Bradford, E.)||van Straubenzee, W. R.|
|Dunwoody, Mrs. Gwyneth (Exeter)||Macdonald, A. H.||Weitzman, David|
|Ellis, John||Marks, Kenneth||Whitlock, William|
|English, Michael||Marquand, David||Williams, Alan (Swansea, W.)|
|Fernyhough, E.||Maxwell-Hyslop, R. J.||Williams, Alan Lee (Hornchurch)|
|Fletcher, Ted (Darlington)||Mikardo, Ian||Wilson, William (Coventry, S.)|
|Forrester, John||Molloy, William||Winnick, David|
|Freeson, Reginald||Ogden, Eric|
|Griffiths, Eddie (Brightside)||Owen, Dr. David (Plymouth, S'tn)||TELLERS FOR THE AYES:|
|Hamilton, William (Fife, W.)||Pannell, Rt. Hn. Charles||Dr. Hugh D. Gray and|
|Hamling, William||Parker, John (Dagenham)||Mr. Peter M. Jackson.|
|Alldritt Walter||Fortescue, Tim||Lee, John (Reading)|
|Braine, Bernard||Goodhew, Victor||McNair-Wilson, M. (Walthamstow, E.)|
|Costain, A. P.||Heald, Rt. Hn. Sir Lionel||Mahon, Peter (Preston, S.)|
|Delargy, Hugh||Hill, J. E. B.||Mahon, Simon (Bootle)|
|Doughty, Charles||Hogg, Rt. Hn. Quintin||Peel, John|
|Elliot, Capt. Walter (Carshalton)||Kerby, Capt. Henry||Powell, Rt. Hn. J. Enoch|
|Rankin, John||Summerskill, Hn. Dr. Shirley||TELLERS FOR THE NOES:|
|Rhys Williams, Sir Brandon||Ward, Dame Irene||Mr. W. A. Wilkins and|
|Speed, Keith||Worsley, Marcus||Mr. Bruce Campbell.|
Before the Closure was moved, I thought that we were to hear some further comments from the Solicitor-General. He was in the middle of his speech when the Closure was moved. I will not ask the hon. and learned Gentleman to get up just now as he seems quite happy to be reclining in his seat, but I must say that what he said about the Government's neutrality in this matter is humbug and I hope that no one in this House is expected to accept otherwise.
Not only do the Government constantly pick out certain Private Member's Bills from the list of those awaiting discussion but they pick out those which are of great moral importance and say to the House, "This is a very important Bill"—and this applies whether it be the abolition of the death penalty, legalised abortion or legalised homosexuality.
On a point of order, Mr. Deputy Speaker. I seek your guidance because, in my ignorance, I am not aware of what should be happening in this situation. I have been here throughout the debate, as you are aware, and I understood that my hon. and learned Friend the Solicitor-General had not finished his speech to the House. My hon. Friend the Member for Liverpool, Scotland (Mr. Alldritt) had risen at least twice during my hon. and learned Friend's speech and then, on the third occasion, my hon. and learned Friend gave way to him, at which stage my hon. Friend the Member for The High Peak (Mr. Peter M. Jackson) made the second of his brief appearances in the Chamber and moved the Closure. If this were not a breach of the procedure of the House, was it not at least a bad breach of its normal courtesy?
Further to that point of order, Mr. Deputy Speaker. My recollection is that I was just on the point of bringing my remarks to a conclusion when I observed my hon. Friend the Member for Liverpool, Scotland (Mr. Alldritt) to be desirous of putting a question to me and I was yielding to him for that purpose when the Closure Motion was made.
I hope that the hon. Member for Liverpool, Scotland (Mr. Alldritt) will have the opportunity to pursue the point he wished to make when I resume my seat.
The Government cannot justly claim that they have been neutral in all these vital matters when other Private Members' Bills are not selected which are equally worthy of time and when they do not give proper advice to the House about whether they have any policy or views on the Bills they have picked out. The position is not satisfactory and the Government should say clearly that they are giving preferential treatment to the Bills they have picked out because they want to see them on the Statute Book. That is surely the point behind the Solicitor-General's statement of neutrality today.
I am grateful to my hon. and learned Friend the Solicitor-General for having given way to me earlier. I wanted to ask him about a matter about which I am particularly concerned. He knows me well enough to realise that I am not usually emphatic and am always prepared to look at both sides and to try and find a compromise. The second paragraph of new Clause 1 reads:
For the purposes of this section hardship shall include the loss of the chance of acquiring any thing which the respondent might acquire if the marriage were not dissolved.
Is my hon. and learned Friend expecting us to accept from him the argument
that the judges ought to decide this issue? Surely we here must decide the matter. If we do not know the answer today, how can the judges arrive at a conclusion?
Of course it is for the House to decide whether these lines should go into the Bill. The last three lines of the new Clause go further in the direction which I understood the hon. and learned Member for Oldham, West (Mr. Bruce Campbell)—to this extent I agree with him—thought was appropriate. We are taking a word of general application, "hardship". Then, because it might be thought too wide an issue to leave to the judges a decision on what constitutes hardship, the sponsors are making it plain, in the one instance, that the hardship has to be grave and, in the other, in the last three lines of the Clause, that there are certain matters which the judges must regard as included in the expression "hardship".
As we are giving the judges that much guidance, can there be any good reason for not giving the further guidance which new Clause 6 would provide? Contrary to what the Solicitor-General said, it does not limit them but simply says that, in determining what hardship means, they "shall have regard to". If one is appropriate, why not the other?
May I ask for your guidance, Mr. Deputy Speaker? Several hon. Members have already said that their view on new Clause 1 would be materially affected by the view of the House on the new Clause proposed by my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell). I understood from Mr. Speaker's reply—he gave no Ruling—that he appreciated the possibility of doing something about that. Of course, we should have to have the agreement of the sponsors, but at least two of my hon. Friends have said that their attitude would be materially affected by a decision on that. If it were to be carried, I should not pursue my proposal, although, in the interests of clarity and of hon. Members being able to make their decision in the most satisfactory way, that might be thought desirable.
(seated and covered): On a point of order. Without in the slightest offending the decorum of this House, may I suggest that, in view of our present difficulties and the confusion which exists among many hon. Members, we should have the voting procedure started again from the beginning?
(seated and covered): On a point of order. As we seem to be in a cloud, would you, Mr. Deputy Speaker, kindly indicate whether we shall vote on the two Amendments of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald)? I understood that there would be a vote on them. Shall we vote on them after we have passed the Clause? How could that be in order?