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Matrimonial Causes Rules

Volume 437: debated on Tuesday 6 May 1947

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11.50 p.m.

I beg to move,

"That an humble Address be presented to His Majesty, praying that the Matrimonial Causes Rules, 1947 (S.R. & O., 1947, No. 523), a copy of which was presented on 28th March. be annulled."
The circumstances in which the Order just cited came to be made were shortly these: when the war ended the number of divorce cases coming forward in one year was approximately 50,000, of which the Services provided about 40,000. Accordingly, a demobilised man coming home and finding then for the first time that his home had been broken up by infidelity, faced a wait of some four or five years before he could get a divorce and start a fresh life. In these circumstances, the Lord Chancellor took two steps. The first was to appoint special Commissioners from the ranks of the Bar to help to clear the lists, and the second was the appointment of a committee under the chairmanship of Mr. Justice Denning to inquire into, and report upon, what procedural reforms were, necessary in the general interest of litigants, and with a view to reducing costs.

The Committee was instructed to regard its work as urgent. It issued its first Interim Report—having been appointed in June, 1946—in July, 1946. A second Interim Report was issued in November, 1946, and its Final Report, in January, 1947. By its first Interim Report, the Committee recommended that the interval of six months between the pronouncement of the decree nisi and the decree absolute should be reduced to six weeks. That was implemented at once. By its second Interim Report, issued in November, 1946, the Committee recommended, among other things, that the county court judges should be empowered to try divorce causes, chiefly the undefended and the short defended causes: and that while doing so they should have the status of High Court judges. That recommendation was implemented within a matter of weeks, and accordingly, has been working now for some three or four months. From all accounts, it has been an unqualified success, because with the assistance of the county court judges the number of divorce cases tried in the first three months of this year was 15,000. If one multiplies that number by three— not by four, because of the long vacation —one gets a total of 45,000 cases for the year. Accordingly, it is clear that, so far as the removal of the delays is concerned, a machine has now been provided which is capable of meeting any demand which is likely to be put upon it. One hopes that the rate of divorce cases in a year will certainly not reach 50,000 again.

It is relevant to notice that the reform represented by calling in the assistance of the county court judges was not universally popular in legal circles. There were some who predicted that it would not work; but it has been an unqualified success. For his initiative in appointing the Denning Committee, and for his energy in pressing through the two reforms which I have mentioned, this country owes a very real debt of gratitude to the present Lord Chancellor.

There remains the further question of reducing costs. The Denning Committee in its second Interim and Final Report made about 50 recommendations for that purpose. The Report was presented to Parliament in February, 1947, and in the same month, in answer to a Question by my hon. Friend the Member for North-West Hull (Mr. R. Mackay) the Solicitor-General said that the President of the Divorce Division had entrusted a small committee in that Division with the task or redrafting the divorce rules in the light of the Denning Committee's recommendations. That Committee consisted of two judges of the Divorce Division, two divorce registrars and the gentleman who was secretary of the Denning Committee. On 6th March of this year, in answer to a Question by my hon. Friend the Member for Walsall (Mr. W. Wells), who asked whether those recommendations were accepted by the Government, the Attorney-General said:
"Save that it is proposed to retain the necessity for an affidavit in support of a petition—but with a modified procedure designed to save time and expense—the procedural recommendations made in Part II of the second Interim Report of the Denning Committee are accepted in principle. But in the course of preparing the detailed Rules it has been found necessary to make a number of modifications or variations of the actual proposals made by the Committee, and I do not suggest that the Rules when made will represent exactily what was proposed in every single instance. With very few exceptions, however. the substance of these valuable re- commendations will be incorporated in the new code, or be given effect to by administrative action. The new Rules which will shortly be issued will incorporate a number of the procedural reforms recommended in the Final Report of the Denning Committee. Others are still under consideration, and I cannot make a definite statement about them today."—[OFFICIAL REPORT, 6th March, 1947; Vol. 434; C. 109/110.]
On 28th March the Order now prayed against was published containing the new Rules referred to in that answer, and out of the 50 recommendations made by the Denning Committee for the purpose of reducing costs and simplifying the procedure 20 at least appear to be rejected, and in some cases the proposals for simplifying divorce procedure have been so altered as to rob the recommendation in question of most of its value. May I say two things at once in order to get them out of the way. The first is that, of course, no committee can expect that its recommendations must be implemented as a matter of course, and no member of the Denning Committee could accept that. Secondly, however, when recommendations are made which are described by a Minister in this House as extremely valuable, if those rules are published which purport to show that many of those recommendations are rejected and others materially altered it is not unreasonable that one should ask for an explanation. So far there has been no word of explanation of these alterations or rejections.

May I give to the House one instance of a recommendation that has been rejected? The House will know that if a person wants to start a divorce action, he or she writes out his or her case on a piece of paper which is called a petition. In that you set out what you think are your grounds for wanting a divorce. When you have done that you sign it, and then when you go to court you go into the witness box and swear that what is in your affidavit is true. Nevertheless, although that is so, before you get to the witness box you have to swear an affidavit that what is in your petition is true. In the King's Bench Division, if you swear once to the truth of your story, and do it in the witness box in conditions which allow for cross-examination, that is regarded as good enough. The Denning Committee thought that should be good enough for the Divorce Division. These affidavits cost 30s. a time if you do not employ counsel, and £3 a time if you do. Therefore, that recommendation was made, but is rejected in the new Rules. The affidavit in support of the petition is still there, and one does not know why. One has to guess why, and it may be said, "Well, you ought not to encourage people to throw charges of adultery about too lightly." The answer to that is that under the new Rules a petition, if it is settled by a solicitor or counsel, has to be signed by him, which in itself is a valuable safeguard against irresponsible allegations. The second answer is that evidence was given before the Denning Committee that in not a single case did a petitioner who signed his petition and was then told "Now you have to swear to the truth of this" go back and alter what he had said in his unsworn petition.

Again, one may recall that you can, by way of a defence to an action for libel, make a charge of adultery in the King's Bench Division and swear to it in the witness box in the ordinary way without a previous affidavit. Therefore, there seems to be no reason for retaining this affidavit in support of the petition. See what it leads to. If the petitioner has to swear by affidavit to the truth of his petition, so also must the respondent swear to the truth of his or her answer, and so there has to be an affidavit in support of the answer. Then, if you are going to amend your petition in order to correct a mistake, or to add some new charge, then you must have another affidavit in support of the altered petition. So the affidavits grow and grow, and that is one crop we can very well do without.

Another illustration will show how a recommendation designed to simplify the procedure has been altered. Consider the case of a woman who has committed perhaps one or two acts of adultery under great provocation, maybe a long separation from her husband during the war. Her husband gets to know of this, and issues his petition. He may also have been guilty of adultery, but his wife will not know that, and she will not know that he will have to ask for the court's discretion in his favour. All she gets is a copy of the petition and a notice saying that if she wants to defend she must "enter an appearance." There is no one at this stage to advise this wife, and what she thinks is meant by "entering an appearance" is going up to the Law Courts in the Strand and personally appearing. There is no one to say to her at that moment that all this means is that she has to fill in a form, and that, though she might be guilty, she, nevertheless, has a right to be heard about the custody of her children and about their maintenance. She does not know that she must fill in this form, and that unless she does so she has no right to be heard at all. Evidence was given by social workers before the Denning Committee that many wives and husbands were losing their rights because they had not advice at this critical stage A well-to-do person will have a solicitor to advise, but we were particularly concerned with the case of the poor litigant, and so we said that there should go with this petition a simple form to tell the woman what rights she had, and what she should do. She could fill it in and send it back to the Registrar of the Divorce Court. I should say that we debated whether she should be asked to fill in the form in duplicate, but finally we said "No" because we felt there was more chance of getting one form back rather than two, and this form would also serve as an acknowledgment of service.

What do these new Rules do? For one form and one envelope, the Committee set up by the President of the Divorce Division with no consultation with the Denning Committee has substituted four forms and no envelope, and three of these forms have to be filled up and sent back by the woman. What is the purpose of this? Is it in the interests of litigants that there should be three forms where there could be one? I must say that I cannot understand why this recommendation has been treated in this way, and I submit that it means that its value will largely be lost. It may be said that the registrar has not the time to make a copy of a form and send it to the petitioner's solicitor. But, under the reforms which have been accepted, the divorce registrars are to be relieved of a great deal of work and they have time to do this. A copy of the defence is always made by the registrar in the county court and sent to the plaintiff, and I do not know why this reform has been treated in this way.

One final example of perhaps another, and a different, angle of this matter. Let us take the case of an insane wife Evidence was brought before the Denning Committee that, in quite a large number of cases, this insanity was due to child- birth. The husband waits for five years and then brings his petition for divorce. Under the old rules, he had to serve a copy of the petition on the medical superintendent of the mental hospital and then had to have the official solicitor appointed guardian ad litem, and then had to serve another copy of the petition on him. We recommended that the double service should be cut out, and that the official solicitor should be appointed guardian ad litem, "if he so consents." We added these words because the official solicitor will be put to expense in this matter. He will have to verify the incurability of the insanity and he will have to make various inquiries and consequently he will be put to out-of-pocket expenses. The question arises as to who is to pay. In existing circumstances, before the new rules came into force, the official solicitor would say to the petitioner, "I will act as guardian ad litem if you will undertake to pay my costs." That was usually agreed to because it is cheaper for the petitioner to employ the official solicitor. What do these new Rules do? By Rule 64 (4) it is said:
"Where a person entitled to defend or intervene in any cause to which these Rules relate is of unsound mind, the Official Solicitor shall, upon the filing of the petition, be his guardian ad litem."
No consent is now required.

Suppose we have a rich petitioner in the circumstances I suggest. When asked if he will pay the official solicitor's costs he can say, "No. Why should I? You have to be the guardian ad litem anyway." It is true that the official solicitor, at the end of the case, can ask the judge to make an order that the petitioner should pay the costs. The judge is not bound to do it. Moreover, an undertaking or security for payment from the petitioner's solicitor is a very much better guarantee that these expenses will be paid than an order against the petitioner at the end of the case. Therefore, the only source for payment is public funds; and, here, I would ask the House to remember what Parliament has said about this matter, in Section 99 (2) of the Supreme Court of Judicature (Consolidation) Act, 1925. The Subsection says;
"No rule of the Supreme Court which may involve an increase of expenditure out of public funds shall be made except with the concurrence of the Treasury."
It then goes on to deal with another matter not here relevant.

I thought it would be extremely unfair to thrust a point like this upon the Attorney-General at the last moment, so I have given him notice of it, and also a list of the 22 recommendations which, so far as these Rules show, have not been implemented. I think two questions arise. One is, has the Treasury consent been given to Rule 64 (4)? If it has, why should taxpayers be put to the risk of having to pay a rich petitioner's costs, in such a case as this? If it has not, then is not the conclusion reinforced that these Rules really require a second look? I could go through all these 22 points, and give case after case showing that the cost of obtaining justice is being made unnecessarily high, without any compensating advantage in any other direction. I do respectfully suggest that when one finds that sort of thing happening, then it is a completely proper function of this House of Commons to be vigilant in the matter; and the knowledge that it is vigilant, and will, I hope, continue to be, will do no harm.

12.13 a.m.

I beg to second the Motion.

I wish to apologise to the House for speaking at this late hour; but it is not the fault of the hon. and learned Member for East Leicester (Mr. Donovan) who moved the Prayer or of the people who support it. Constant conversations we have had with the usual channels resulted in moving the Prayer from a day when it would have been convenient to the House, having regard to the other Business that day, and when it could have been taken at ten o'clock. It was moved from then to yesterday. It was again moved to today, in the hope that it would be as convenient today as it would have been on Thursday. I think it is a pity that, when the usual channels are consulted, advice that turns out to be so very misleading should be given, or that the House has to apply its mind to these rather technical matters at 12.15 in the morning, when it could have quite properly done so on Thursday at 10 in the evening. I think it is most unfortunate.

There is one broad question of principle in this Prayer. There was the Report of the Denning Committee, to which the hon. and learned Member for East Leicester has alluded. That was in three instalments. It was the result of a number of sittings at which evidence was taken, and of a number of sittings at which evidence and various suggestions were fully considered. The Denning Committee made certain recommendations, and, as the mover of this Prayer stated, the Committee naturally did not expect that all their recommendations would be adopted, but what I think the Committee, which sat conscientiously and heard evidence objectively, could expect was that, where the Executive, in the shape of the Lord Chancellor or a sub-committee appointed by him, rejected certain recommendations, the reasons should be fully stated. Otherwise, we get the position that a committee sits and hears the evidence and then makes its recommendations and the Executive, in what must necessarily seem, from this point of view, to be a hole-in-the-corner business, takes the recommendations and says, "We like this one, but we do not like that," so that nobody knows why they reject certain recommendations. As far as one knows, they heard no contrary evidence; in the majority of cases, the evidence was all one way, so that one wonders where the Executive, in the shape of the Lord Chancellor, got the idea that the recommendations were not worth accepting.

Nobody here knows; and I would be willing to prophesy that, if the learned Law Officers answer the question at all, they will not answer it in detail. I hope I am wrong, but I am willing to prophesy that they will not take the 22 recommendations and will not give the House the reasons why they were rejected. I hope the learned Attorney-General will say why they rejected the recommendation for a simple form, to which the hon. and learned Member has just referred, which would enable the respondent to fill up a single form, and why, instead, they adopted a complicated provision by which the respondent has to fill in a form couched in technical legal language, send another document of service couched in similar language, and also send in duplicate a memorandum of appearance. He may explain why, and I would like him to do so, but I am afraid that he will answer in general terms, and say this; "This Committee is very lucky, as it has had 50 per cent. of its recommendations accepted, whereas, under Conservative Governments, they were lucky if they got 10 per cent. accepted. What on earth is the Denning Committee grumbling about? Why do they object if 50 per cent. of their recommendations are accepted, and why make what is probably a veiled attack on His Majesty's Judges?" I am afraid that is the answer we shall get, when what we want is a reasoned account of why these 22 recommendations were not accepted. The reason we want that is because we have had no evidence of the steps which the Lord Chancellor had taken to consider whether these recommendations were sound or not.

I wish to give two instances, which I think are striking, where the recommendations were in favour of cheapening divorce, but where, for some reason which I cannot fathom, but which the Law Officers might explain, they have been rejected. They are non-technical. In certain cases, the respondent, on the other side of the divorce, cannot be found. Before the case can be heard, every attempt has to be made to find this person, and one of the attempts which has to be made is by advertising in the newspapers. An advertisement in one of the papers prescribed, a very popular newspaper with a large circulation, actually costs over £20 per insertion, and many poor persons have had to abandon their cases altogether, and go without the divorce to which, otherwise, they would be entitled, because they could not afford the £20. The Denning Committee recommended that the procedure followed under the Trustee Act should be followed here, and that an official advertisement should be put in the newspapers in such a form as to give the names of the various divorce cases in which persons were being sought. In other words, one advertisement should cover several divorce cases—Smith, Brown and Jones. It should be put in at the public expense in cases where poor persons cannot afford to pay for it. There is nothing in the Rules about that. I should like to hear from the Law Officers why it is not in the Rules.

In undefended nullity cases, the Rules demanded two medical inspectors. The Denning Committee were satisfied that there was no need for inspection by the medical inspectors, or for their attendance. Therefore, it recommended that, in undefended nullity cases, the certificate of the family doctor should be sufficient. We have, I think, sufficient faith in the medical profession to allow that. What has happened in the Rules? Now the costs are: attendance before a medical inspector, 10 guineas; attendance in court, 5 guineas. The costs are, therefore reduced from 25 to 15 guineas. But how can such costs be afforded by poor persons? In many cases they have to give up the case to which they are entitled just because they are poor, and yet the law, for no earthly reason, maintains this demand.

I am sure the House is waiting for the Law Officers to give some explanation why this principle has been disregarded, and why, even if the labour and work of the Committee has been rejected, this House and the public should not be given the reason why serious recommendations are made and not accepted. The Committee was lucky in having its first two recommendations fully and promptly accepted by the Lord Chancellor. I think that this is the first instance of a mixed Prayer, if I may call it that, in this House, where both Government and Opposition Members have supported the Prayer. Lawyers are often thought to be cynical, but here is an instance where they are joining together in the cause of law reform which they have at heart. I feel sure that the Lord Chancellor and the Law Officers have the reform of the law at heart, but if there is any fault to be found in those who have to deal with the procedure of divorce, it is that they think that changes must only be made slowly. They are, in fact, too conservative. Surely, it is the duty of the Lord Chancellor and the Law Officers to show a little firmness and to say, "The Denning Committee have recommended this. If you think you have a good reason against it, we will look at it, but, otherwise, you must put these reforms into practice."

One wonders, perhaps, whether the Lord Chancellor and the Law Officers have shown themselves to be a little reticent in bringing about these reforms. Law Officers, as I said, are sometimes blamed for not wanting anything but the advantage of their own pockets. But I think this is an instance where the House should take on itself the duty of giving a little more courage and a little more pep to the Law Officers and to the Lord Chancellor. Hon. Members will know the story of the lawyer who said that when he was young he had lost a lot of cases which he should have won, and that, when he was old, he had won a lot of cases which he should have lost, and that, therefore, on the whole, justice had been done. I am grateful for the reforms which have been accomplished in the Rules, but I would like the Rules to be even better. For that reason I invite the Government to say that they will reconsider the matter in the light of what has been and will be said here tonight, and will be prepared to introduce yet another set of Rules, which will bring the recommendations of the Denning Committee, if they are worth accepting, into effect.

12.25 a.m.

I would like, if I may without impertinence, at the very outset of my observations, to express the very sincere and warm appreciation of my noble Friend the Lord Chancellor and, indeed, of the Government for the most important, valuable and, I venture to think, significant work of the Committee presided over by Mr. Justice Denning. Although, of course, as my hon. and learned Friend the Member for East Leicester (Mr. Donovan) said, under our constitutional system, it must be for the Minister concerned and eventually for the Government to decide to what extent they can implement the recommendations which may be made to them by committees appointed as the Denning Committee was—that is one of the responsibilities of Government which cannot be transferred to outside bodies—I want to make it at the outset that, although all the recommendations of the Denning Committee have not yet been implemented, not one of them has been finally rejected.

On the contrary, many of the recommendations—those which appeared to be the most urgent and most important— are already actually being carried out in practice. Arrangements are still being worked out in regard to others which are likely to be embodied in further Rules in the near future. As for still others—not, I think, very numerous, but some of them, perhaps, raising more difficult and more controversial issues, or giving rise to unexpected practical troubles of one kind or another—they are still the subject of consideration, and there has been no decision finally to reject any of these proposals. I shall return to that point, but I do feel entitled to say, as the hon. Member for Northwich (Mr. J. Foster) anticipated that perhaps, I might, that the last of these Reports was only presented on 21st January, and' it is not often that recommendations of committees have been put into operation so expeditiously or, I would add, so successfully as has been done in this case.

Before I go into any further detail as to what has been done—and I will try to deal with each of the points which have been raised—I ought to explain the actual machinery by which recommendations of this kind, dealing with the administration, and procedure of our courts, can be carried into effect, because the matter is not, as the hon. Member for Northwich appeared to suggest, one which is exclusively within the control of the Executive. One method of carrying out recommendations such as those which were embodied in the Reports of this Committee would, no doubt, be by ad hoc legislation. One could have a Statute about it dealing with the very numerous detailed proposals which were made, but manifestly that would be a most inconvenient method of dealing with detailed and technical matters of this kind. The current Statute, I think, is the Judicature Act, 1925. Parliament consequently provided that there should be what is called a Rules Committee constantly in being, and able, from time to time, as occasion required, to introduce new Rules or to make modifications in existing Rules.

That committee, in no sense a committee of the Executive, is normally composed of my noble Friend the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division, four other judges, two members of the Bar, and two solicitors. Normally it would fall to -that body, consisting of experts of very great standing and experience, to make such Rules as they thought right in the discharge of the responsibility which has been vested in them by Parliament, and in the light, of course, of any recommendations which might be made from time to time, as, for instance, by a committee appointed as Mr. Justice Denning's committee was. That would normally be the position, and the normal method by which recommendations of this kind would be given legislative effect.

The position was altered during the war, to the extent that the Rules Com- mittee was suspended, and the Lord Chancellor was empowered to make rules, subject to the concurrence of two of His Majesty's judges. The practice throughout the period of emergency has been to implement, as far as might be, the general intention which Parliament had expressed in regard to this form of subordinate legislation in the Judicature Act, 1925. The Lord Chancellor has followed the practice, first, of consulting such of His Majesty's judges as appeared to be able to give useful advice on the particular matter which was under consideration; and second, of seeking, as he is bound by the statutory provisions to seek, the concurrence of the two judges who are most immediately concerned with the Rules under question. That is to say, if they were Rules affecting the procedure of the King's Bench Division, I apprehend the Lord Chancellor would have to seek the concurrence of the Lord Chief Justice and of one of the judges of that Division before the Rules were made; if they were Rules affecting the procedure of the Probate, Divorce or Admiralty Division, then he would seek the concurrence of the President of that Division and one of the judges of that Division before the Rules were made.

What I want to make perfectly clear to the House is, that this is not really an Executive matter at all. It is a matter only under the laws which Parliament has passed for dealing with subordinate legislation of this kind, in which my noble Friend cannot act alone. But even under the emergency legislation of the war he has to secure the consent of at least two of His Majesty's judges. Not only is it obviously desirable that in matters of this kind, where the question of the procedure of the courts are involved, the Lord Chancellor should avail himself of the great experience of His Majesty's judges, but he is obliged under the existing law so to do. Moreover, as from the first day of next month the procedure will revert to the normal, the Rules Committee, established under the Act of 1925, will come into being again, and the power to deal with these matters will once more become vested in the Rules Committee, that being the machinery which exists for dealing with matters of this kind and implementing recommendations of this sort.

I want to explain to the House how these three successive reports of Mr. Justice Denning's committee have been or are being dealt with. Broadly, the position is this. The whole of the recommendations in the first Report have been implemented by administrative action or by new Rules. Rather more than half the recommendations in the second Report have been carried into effect by administrative action or by Rules. The position in regard to the third Report does not yet arise, because the matters contained in that report, made only in the early part of this year, are still under consideration. My noble Friend has indicated a general view about them, but, if I may use the sacred phrase, they are still receiving active consideration, and in due course, no doubt, Rules will appear in regard to them.

Speaking in general terms, so far as the first and second Reports were concerned there were three main principles underlying them. The first was the avoidance of delay; the second, reduction of costs; and the third might, I think, be described as a general simplification in the Rules of procedure and a general rationalisation of them. So far as the problem of delay in the courts is concerned—not the delay in the preparation of cases before they get to the courts, which is really where the grave delay has been occurring—the problem has been largely solved. That in itself is a not unremarkable achievement when one remembers the difficult situation which existed hitherto. In 1945, 25,000 odd petitions were filed, and 25,000 odd were disposed of. In 1946, 43,000 petitions were filed and in that year 33,000 were dealt with by the adoption of various ad hoc expedients, such as the appointment of commissioners of assize, the use of judges of the King's Bench Division, and so on. These were expedients which involved a good deal of inconvenience and dislocation of the ordinary work of the High Court.

It was in those circumstances that the Denning Committee recommended that substantially the whole of the burden of undefended cases should be taken from the shoulders of the High Court judges and transferred to the county court judges sitting as special divorce commissioners of the High Court, and sitting in the various local county courts in that way. That proposal, after the proper consultations, was adopted. The change was made on 1st January this year, and if again I may be permitted to say so, the results have fully justified the recommendation of the Committee and the confidence which my noble Friend had in the county court system of judges.

The figures were, indeed, a little more attractive than those given by my learned Friend. For the first three months of this year, 17,000-odd petitions were filed, and 16,826 were disposed of. Those are interesting figures because they show that the courts are now keeping abreast of the number of causes set down for trial. They also show, of course, that the number of divorces is still rising and that those who are seeking divorces are more numerous than has ever before been the case. No doubt a vast proportion of these wrecked marriages is the result of war circumstances; and I think that there is reason to hope that after this year we shall have reached the peak and the figure will come down. But it is an alarmingly high figure, and it is clear that it will be higher this year than ever before.

Regarding delay in dealing with these cases, numerous as they are, the time lag between setting down a petition and trial is something between one month and two and a half months in the case of undefended suits. I am not saying that all delays have been eliminated. There was one recommendation as to the three weeks interval between the service of the petition and the setting down of the case for trial if the respondent did not intend to defend. There is a small delay there. This is a matter which, in the light of a little further short experience, may well be dealt with by further Rules. The recommendation has not been finally rejected. This is important in view of what my hon. Friend said about the long period of delay which has hitherto existed in these cases. Nor, of course, are we dealing with the very great delay which still exists in coping with the really frightful arrears of Service cases which have not yet reached the courts at all. Those are cases in the course of preparation. Very great progress has been made in dealing with them under the new arrangements which were announced in the House, but it may still be over two years before all those arrears are wiped out as far as the procedure of the courts is concerned or until such a lengthy delay has been eliminated.

I come now to the question of costs. Here the position is not quite so satisfac- tory. Taking the ordinary run of typical undefended cases, the average cost of a petition under the old Rules worked out at £75 5s. 10d. That figure has been reduced by the recommendations of the Denning Committee, which have actually been implemented already, to £66 15s. 7d. But this is the point I want to endorse, because I cannot think that it has been fully appreciated by hon. Members or perhaps even by the Members of the Committee itself. If every recommendation which the Committee made in regard to this aspect of the matter had been adopted, the additional saving in the ordinary run of costs would only have been a further £4. [HON. MEMBERS: "Oh, no."] It is no use hon. Members saying, "Oh, no." I have several typical examples here. I am not dealing with a petition for nullity or cases where there has to be medical evidence or where the petition has to be advertised in the Press for one reason or another. Nonetheless, it is not helpful for hon. Members to cry, "Oh, no." We have been into this matter with the greatest care. We have details and recommendations and we have what they actually worked out in practice.

It is perfectly true there may be an exceptional case where an advertisement has to be issued or where a doctor is called in to give evidence, but what I am dealing with is a typical average case. That is in some ways a disappointing result, and that results from the fact that the Committee presided over by Mr. Justice Denning adopted what was a typical British compromise instead of a recommendation which some people hoped that they might make—that the county court judges should discharge these functions as county court judges in the county courts under county court rules. Instead, they recommended that although county court judges should be the persons who should discharge these functions they should assume the mantle of High Court commissioners and operate under High Court Rules and with High Court scales of costs. That is why the proposals did not involve a drastic saving in costs which might otherwise have occurred.

I am not proposing to take up the time of the House at this time of the night by going into the 21 recommendations which have not been rejected but which have not yet been adopted. I want to refer to the ones that have been specifically mentioned. The first of them was mentioned by my hon. and learned Friend the Member for East Leicester and was in regard to an affidavit in support of a petition. Hon. Members will know that in the courts in an affidavit the petitioner swears that there has been no connivance and collusion in regard to the divorce. One of the reasons why that recommendation has not yet been adopted is that it was felt at the beginning of each case that there might have to be an oral explanation to the petitioner of what collusion and connivance meant, and it would not only be inconvenient to do that in court, but it might develop into something which would become a meaningless formula, and, therefore, would lose its merit to a large extent.

It is quite true that the petitioner does so swear, but he is not swearing to a question of fact. He really says, "In my opinion I have committed no act which in law amounts to collusion, connivance, or condonation." Really that opinion of his is completely worthless. That is why Section 4 of the 1937 Act, as the junior Burgess for Oxford University (Sir A. Herbert) will remember, lays the duty of saying there has been no collusion, condonation, or connivance upon the judge, and there is so much of that today that one should not shift the duty on to the petitioner.

I can only say, in answer to my hon. and learned Friend, that that was not the view of the utility of this affidavit by the persons of very great experience whose duty it was to make sure there was no collusion or connivance. It was felt that if the petitioner had to deal with this matter at the very outset of the case, before the petition was filed, and if he had this explained, as members of the solicitors branch would explain it before they got their clients to swear, it was more likely that the obligation to avoid collusion or connivance would be carried out and adhered to. That was the view taken in regard to it by those who, under the present Act of Parliament, are responsible for implementing these Rules. The position now is that the affidavit is combined with the petition; it is actually part of the same sheet of paper, and that will reduce the costs. There is no need to reswear an affidavit if the petition is amended, so what appeared to be the main objection to the affidavit has gone. The affidavit remains of importance with regard to collusion, but there is no occasion to reswear it or incur heavy costs in regard to that matter.

Does the Attorney-General realise that the petitioner, under the new Rules, has to state whether the petition is presented in collusion with the respondent or co-respondent? Therefore, the whole of his argument falls to the ground because the petitioner has already stated in his petition that there is no collusion and the solicitor has already explained to the petitioner what collusion is.

It appeared to those responsible for this matter, and I hope it will so appear to the House, that there was a significant difference in what might be stated by counsel or solicitors and what was sworn to by the petitioner.

With respect, the learned Attorney-General is wrong about that. Under the old Rules the petition does not contain any statement about collusion or connivance.

That is not the point. The point is that under the existing procedure the petitioner is required to pledge his oath that there is no collusion or connivance. It was thought by those on whom Parliament has bestowed responsibility in this matter that that was desirable. He is still required to pledge his oath as to this matter. The hon. Members may not agree with the reasons, but they asked me to give them. It is the responsibility of those who make the Rules to decide what these Rules should be. I have merely indicated the reasons which actuated their minds in regard to this matter at this stage.

My hon. Friends raised the question about the forms. They pointed out that it was recommended that the respondent should fill in only one form, the answers to which would serve for several purposes. It would be an acknowledgement of service, memorandum of appearance, and a statement of the respondent's intentions as to whether he was going to defend or ask for any particular relief or custody of children or matters of that kind. That, on the face of it, was not an unattractive proposal, but there were practical difficulties. Nobody could loathe forms, nor refuse readily to fill them up more than I, but if there was only the one form—the memorandum of appearance—the respondent who received it and who, on receiving it did not wish to do anything, would be able to ignore it and throw it in the waste paper basket. The result would be that the petitioner, in that event, not knowing whether service by post had been effective, would have to effect personal service and would have to go to the expense of personal service.

It was thought that it would be more convenient, during what is an experimental period, to provide a form for acknowledging service, so that the person who had been served should at least make it clear that he had received notice and the petitioner could go ahead without having to effect personal service. The memorandum of appearance is part of the same form. There is a perforation, and they can be' torn apart. It is part of the one form on which it is shown whether any relief is required. The reason is that it is simply too much, under existing staffing conditions in the registries, to impose on the clerks in these courts the responsibility for copying out fifty thousand forms, and it is felt that no undue hardship will be placed on the respondents if they are asked to copy out the form twice. When the divorce actions become fewer, as they probably will in the year after this, the matter will be considered again.

I have been asked about simplicity in the forms and while I agree that the forms must be in simple language, it has to be remembered that one must be certain that clarity and certainty are not sacrificed for simplicity. It by no means follows that because the official solicitor has not obtained an advanced undertaking as to his costs from the petitioner that he would have to look to the public funds for remuneration. In the ordinary way he would obtain costs from the trial judge, and only in the event of his being unable to enforce the order which had been made would the question of recouping from public funds arise, and the procedure under the Poor Persons' Act will be the same. Section 99 (2) of the Adjudicature Act, which has been referred to has hitherto been regarded as applying only to those, cases where normally, and inevitably, the new Rules are going to impose a direct charge on public funds. Many Rules make a charge on public funds, some, for instance, by increasing the number of clerks employed in the registries, and it has not been the custom to consult the Treasury on Rules of this kind. It is expressly provided in this statute that they cannot be challenged, and the matter is really of no moment so far as their validity is concerned.

The hon. Member for Northwich raised the question of advertisement. I can dispose of that very shortly, just making one correction in his observations. In the vast majority of cases, so I am informed, these advertisements have to be inserted only in local papers, where the cost is quite small, nothing approaching the figure of £20 Or £25 that he mentioned. But this is one of the recommendations. It is one of a good many practical differences in the machinery at present under examination. There is no intention finally to reject the recommendation.

Then there was the question of medical evidence in nullity cases. There, in the view of those responsible in this matter, it was felt that family doctors were not always competent to deal with these difficult cases. One does not want to go into details. But they are cases of a highly specialised nature, where a great deal of experience is required before an informed opinion, on which a court ought to act, can be given. It was thought for that reason that there ought to be official inspectors appointed for this purpose. So far as their attendance at court is concerned, the fact is that they are very frequently required to give evidence, and if they were not present in a court great delay and inconvenience would result.

I have dealt as shortly as I can with the points that have been raised, but I want to make it clear again that all the recommendations, including those that have already been implemented by these Rules, will be considered further in the light of experience, and in the light, no doubt, of the observations which have been made in this discussion. I do not think it is fully recognised that there are difficulties in introducing into our existing machinery an entirely new code of procedure, especially at a time when the flood of this particular kind of litigation is at an unprecedented height. But nobody is more anxious than my noble Friend, or, indeed, than I, that our laws should be simplified, and that the courts should be made more accessible, so that the law is, in a very true sense, the servant of the people. I hope my hon. Friends will take the view that the present Rules are, at least, a very substantial instalment on account, and that four-fifths of a loaf are better than no bread at all; and that they will, in those circumstances, withdraw this Prayer.

12.58 a.m.

I was very interested to hear the reply of the Attorney-General. I was, nevertheless very shocked to realise that these costs in the divorce cases are not to be lowered, as I had hoped, and as, I am sure, most of my hon. Friends here had hoped. Many years of experience among people who cannot afford to pay these costs have convinced me that something must be done in this matter, and even if the Denning Committee has not been able to lay its finger on the method by which it should be done, we must ask the Government to do everything possible to get these costs reduced to a reasonable figure. Many appalling cases of misery have come to my notice, and I should be 10th to think that anything we could possibly do to avoid them would not be done.

I wanted particularly to press home a point that the Denning Committee made with regard to the welfare of the children in the divorce cases. It is unfortunate that the High Court procedure does not allow the possibility of independent evidence being obtained as to what is really the best for the welfare of the children. I have had an opportunity of working in a juvenile court, and I know the importance of having every possible intimation with regard to the home life of the children, and advice as to what is best for the children. It has come to be regarded as a natural thing that anybody deciding upon the future welfare of children should have such reports available to them. The Denning Committee did ask that this sort of skilled advice and guidance should be available to the judge who has to decide what is to happen to the children, and that recommendation was a very wise one and wholly in accordance with the concern which the country feels about these children. One has only to glance at the Curtis Report to realise the lack of care and consideration given to the welfare of the children of divorced parties. I should like to cite one case which came quite recently to my notice. It is a case where the father and mother were equally guilty of the kind of conduct—

I am sorry to interrupt the hon. Lady, but the care of children does not come within these Rules. We are discussing the Rules just now, and we can only discuss what is in them.

On a point of Order. May I ask for your Ruling, Mr. Speaker, because the hon. Lady proposes to refer to one of the recommendations made by the Denning Committee? As I understand it, the reason for this Prayer is that the Statutory Rule and Order does not contain all the provisions which the Denning Committee had intended should be incorporated.

I know that is quite a point, but, of course, while one can object, on the Prayer against this Order, on account of the things that are in it, we cannot discuss what is not in the Order.

Further to that point of Order. There is a provision of the Statutory Rule relating to the procedure on questions of the custody of, and access to, the children, which, I humbly suggest, comes near enough to justify the hon. Lady developing the matter to some extent.

I do not know if it would help if I should intervene here. but I made it clear that these recommendations, or the most important recommendations, as I agree they are, were made in the third Report—the last Report. The present Rules do not propose in any way to implement that Report.

I can only say that, if the Rules do not propose to deal with any of the recommendations of the third Report, perhaps I ought to submit to your Ruling, Mr. Speaker.

Further to that point of Order. If my right hon. and learned Friend the Attorney-General will look at the explanatory note at the end of the Rules which we are considering, he will read:

"the recommendations made in the second, interim and final Report of the Committee on Matrimonial Causes,"
and it would, therefore, appear that the Rules are intended to implement the recommendations made in both the second arid third Reports.

What he said, Sir, was that these Rules did not purport to cover the recommendations of the final Report. But if what my hon. Friend the Member for East Islington (Mr. E. Fletcher) has just said is correct, I think, perhaps, I might be allowed to finish what I was saying in regard to this aspect of the situation, which is not provided for in the Rules before the House.

With the leave of the House, perhaps I might just say that it is perfectly true, as my hon. Friend has pointed out, that certain quite minor matters contained in the third Report are affected by these Rules. But, as far as this major recommendation is concerned, the Rules do not purport to deal with it. It appears to be a question which will have to be dealt with by legislation, and which will be incapable of being dealt with by the Rules at all. That is why it is still under consideration.

It may be that legislation will be required, but I am wondering whether it would not be possible for a Rule to be formulated quite quickly whereby, pending legislation, there might be some attempt to make available to the judge deciding the custody of children, some officer such as the probation officer, who, we understand, would be willing to act in this matter, so that, as quickly as possible, there may be some skilled advice available to the judge disposing of the children. I hope that the Attorney-General will bear that in mind.

1.7 a.m.

I make no apology for detaining the House for a few minutes, even at this late hour, because I feel that the matter raised this evening is one of extreme importance and urgency. It is the question of urgency which I am afraid my right hon. and learned Friend has overlooked. I hope that by the time we have finished this discussion, we shall have a promise from him of a somewhat more tangible nature. While I agree that a number of the provisions—I am speaking now as a practising solicitor to whom these problems come very frequently—contained in the Statutory Rule and Order are excellent steps in the right direction, I feel that it would have been better if we could have had the whole of the recommendations which it was intended to accept, brought within the provisions of this Rule and Order.

All these changes of rules and the constant variety of Orders which come into force make life very difficult in a solicitor's office, and certainly do not facilitate the expeditious handling of cases by the staff employed. I think it is wrong that Orders of this description should be issued piecemeal. My right hon. and learned Friend's idea—;I do not know where he has got it from—about the saving of a maximum of out of a total of 66, is not, in my view, a proper assessment of the position. It may very well be that, in a large number of cases, one might only have a saving of that description, but there are very many other cases in which the various other steps which have been recommended by the Committee, if adopted, would minimise the cost by a much greater amount. Let us examine one or two of the steps in the course of proceedings. We have already had raised the question of the affidavit with a petition. In addition to being an unnecessary document, the affidavit creates an unnecessary expense. The petition itself can contain all the information necessary, as the matter ultimately has to be brought before the court, anyhow. Then there is the question of the cost of the petition; not only the cost which is paid for the petition itself, but the cost of preparing the affidavit, taking it to the commissioner, and the filing of the affidavit. All these things have to be taken into consideration. If one wants to amend a petition, even if this only involves the alteration of just a few words—it may even be something which does not very much affect the substance of the petition itself—one has to prepare another affidavit.

No. I said that was not the case. That is a matter which is dealt with by administrative instructions, and has been so dealt with. I thought I had said that.

I gather my right hon and learned Friend had said that, but I cannot find it in the Rules.

Rule 14 gives the provision and I gathered from my reading of it that that provision had not been made. It reads:

"A petition may be amended without leave before service of the original proceedings, upon filing an affidavit by the Petitioner verifying the new facts alleged."

I thought I had fully understood these Rules. In the law I know that one can make a mistake, and I thought, when my right hon. and learned Friend interrupted, that perhaps I had made a mistake. But I have not done so The petitioner has to swear another affidavit. This means that the petitioner has to go to the solicitor's office, the solicitor has to prepare a fresh affidavit, the affidavit has to be taken to a commissioner, and the commissioner has to be paid. If the amendment is made before the petition has been served, it appears that one no longer has to apply for leave to make the amendment.

Yes, in a moment. If the petition has been served, however, the petitioner has to go through a long procedure again. He must file an affidavit for leave to amend, and then there is all the procedure of amending the petition to be gone through again. I do not think my right hon. and learned Friend the Attorney-General is so naive as to believe that all the saving of expense to which I have referred, even with regard to the ordinary petition and the amending of a petition, will come within the compass of that small reduction of three guineas. In addition, there are a number of other matters which ought to be referred to and which, I hope, will be taken into consideration. We ought to dispense entirely with the affidavit in support of the petition. We ought to dispense entirely with affidavits in relation to the amending of the petition. If an appearance is entered, and if the respondent states in his appearance that he is not going to defend the Amendment. I can see no need for the waste of another fortnight before setting the suit down for trial. It is not merely a question of a waste of time in this respect. It creates other delays and expense. With regard to the proceedings in relation to directions, I ask my right hon. and learned Friend to consider that question. I am sorry to have to talk in technical terms, but it is essential that we should know the procedure. It is simply not understood by a layman. In the King's Bench Division one goes to the court and asks the Master to direct what steps shall be taken in the action, where the case shall be heard and what documents are to be produced. He asks whether there are to be many or few witnesses—I am trying to put it into as simple language as I possibly can—he decides how long the case is likely to last, and whether it does or does not require a jury. All those things are done in one hearing. As I understand the position, the committee recommended that that type of proceeding should be adopted with regard to divorce proceedings. And why not, instead of having four or five, or less summonses, each of which costs 5s., with an additional 5s. for a duplicate which has to be served? A clerk has to go down to the court each time the summons has to be issued and served All these things, which take up time and money, could be avoided. In my opinion we should have very quick action—interlocutory proceedings, which would lead to a very quick trial and would obviate much of the expense that is at present incurred. My right hon. and learned Friend turns aside somewhat lightly the costs of nullity, because nullity proceedings are proceedings of a specific nature. If proceedings are not going to be defended, why on earth should the petitioner be put to the expense of £15? In my view, the recommendations of the committee should have been accepted in this respect. They would have curtailed expenses and also saved time.

There is one other comment I wish to make. We are not considering the question whether divorce should be made easier or otherwise. What we are asking is, that once divorce procedings have been commenced we must have a procedure which will enable those proceedings to be carried through as speedily as possible, and with as little expense as possible. There is no reason at all why the other recommendations which will be accepted should not be immediately incorporated into an Order, and I hope we shall have an assurance from the learned Attorney-General that that will be done very speedily, so that we may be able to assure the country that proceedings will not take the length of time they are taking at present. Even with these new Rules they will take as long as—

Indeed not. That period does not include interlocutory proceedings. It will mean another week, or two, or possibly three weeks' delay in various steps before anything effective is done with regard to setting down for trial. I ask the right hon. and learned Gentleman whether he cannot immediately get the other recommendations introduced into an Order.

1.18 a.m.

After the very able and exhaustive speech of my hon. and learned Friend the Member for East Leicester (Mr. Donovan) it is almost an impertinence for anyone to attempt to add anything to it. But I think I am a sufficiently bad lawyer to be able to sum up. If you make justice so expensive, you deny justice altogether. I think I am right in saying there was evidence before the Denning Committee which made it quite clear that, despite what the learned Attorney-General has said, the cost of a divorce petition could be brought down to £40 or £50. The reason is very technical, and I will not go into it now. I only wish I were in the position of the learned Attorney-General, and could say I would circulate it in the OFFICIAL REPOR T. Not being in that position, perhaps he will let me write to him—if I may be allowed to use the other gambit of the Front Bench—and give him the details.

We are concerned here with a rulemaking authority. There has been a great deal of skirting round this problem, and perhaps we are not approaching it in quite the right way. The problem we ought to be considering is the position of the people who comprise the rulemaking authorities. If, indeed, there are comprised in such authorities people who are completely out of tune with ideas of our time, then this is not a personal question. It is a question of whether we ought not to have at the head of this branch of the Judiciary someone more in tune with the age. I rose just to say to the learned Attorney-General that if the situation develops, as it appears to be developing at the moment, will it be possible for time to be given for such hon. Members who may think fit to put down an Address in the usual form? I do not want to say more than that now. It would be improper for me to do so.

In view of the sympathetic nature of the Attorney-General's reply and the assurance given, I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.