House Of Commons
Friday, 5th February, 1937.
The House met at Eleven of the Clock, Mr. SPEAKER in the Chair.
New Writ
For the Borough of Manchester (Gorton Division), in the room of Joseph Compton, esquire (deceased).—[ Sir C. Edwards].
Private Business
Kingston-upon-Hull Provisional Order Bill,
Ministry of Health Provisional Order (Wisbech Joint Isolation Hospital District) Bill,
Ministry of Health Provisional Order (Colwyn Bay) Bill,
Ministry of Health Provisional Order (Bedford) Bill,
Ministry of Health Provisional Order (East Hertfordshire Joint Hospital District) Bill,
Read a Second time, and committed.
Orders Of The Day
Summary Procedure (Matrimonial And Other Matters) Bill
Order for Second Reading read.
11.6 a. m.
I beg to move, "That the Bill be now read a Second time."
In 1933 I was so fortunate as to obtain a high place in the Ballot for Private Members' Bills, and on that occasion I introduced a Measure which subsequently became law. The odds against a Member drawing a high place in the ballot are considerable, and the odds against the Bill which he introduces becoming law are even greater. The odds against two such Bills becoming law within five years can safely be left to the calculations of actuaries, senior wranglers and bookmakers. But such are the merits of this Bill that I believe there is a good chance of the double event coming off, in spite of the fact that the jockey was and still is a lightweight. I begin by saying a little about the origin of the Bill. A Bill was introduced in another place by Lord Listowel in 1934 which was similar to this Bill in certain important respects and as a result of the introduction of that Bill, my right hon. Friend the Member for the Pollok Division of Glasgow (Sir J. Gilmour), who was then Home Secretary, set up a Departmental Committee, the terms of reference of which were subsequently widened by the present Home Secretary. The Departmental Committee was under the very able chairmanship of Mr. Harris of the Home Office. It sat for a considerable time and made some very important recommendations. It was directed to inquire into the social services in the courts of summary jurisdiction with special relation to matrimonial disputes and the whole system of probation and conciliation. In March, 1935, Lord Merrivale also introduced a Bill in another place. Lord Merrivale, as hon. Members know, has very long experience and immense knowledge of these subjects. That Bill also was withdrawn when, as I understand, Lord Merrivale was satisfied that the terms of reference of the Departmental Committee were sufficiently wide. Both those Bills were fully considered by the Departmental Committee and very much influenced their recommendations. Mr. Harris's committee reported in March of last year. It did its work carefully and well. It examined 136 witnesses, held 47 meetings and produced an ably-written and exhaustive report on the proceedings in these summary courts—with which the Bill, of course, only deals —and its recommendations, as far as the first part is concerned, are being acted upon in the Bill. The report, which is of great interest, is 15o pages long but one can say that there is hardly a word too many in it. This Bill, as I say, gives effect to the first part of the Committee's report and recommendations. Hon. Members may wonder why I did not go further in this Bill and give effect to some of the other recommendations, but after careful consideration it was decided that a separate Bill would be necessary to give effect to those other recommendations. I claim, however, that this Bill does carry out in full as far as legislation is concerned the first part of the recommendations. The subject is a large one, and I must beg the indulgence of the House if I exceed the time, to which I should ordinarily wish to confine myself, though I shall endeavour not to do so. It is necessary, however, to say something about the history of probation officers and of conciliation and of this class of legislation in general. We have to know something about these matters in order to realise the full purport of the Bill. Fifty or sixty years ago in the courts of summary jurisdiction in this country the justices did not normally take into consideration the social implications of the law as they were administering it, so far as it affected private persons in matrimonial disputes. At that time also the system of probation was practically unknown. About that time police-court missionaries, agents of voluntary societies, began to attend the courts and these men and women became so valuable that they ultimately achieved official recognition by the Home Office and also statutory recognition. The Bill, so to speak, underlines the recognition which these men and women have received. They have done magnificent service as probation officers, and I think the country realises that they are a hardworking and often underpaid body of men and women who help greatly to bring sympathy into the administration of justice in this country. May I say a few words about the history of the legislation on which the Bill is to a certain extent based? The first Act of Parliament on the subject which I need mention is the Matrimonial Causes Act, 1878. By that Act justices were empowered to make orders for non-cohabitation, maintenance and custody against a man for aggravated assault on his wife. In 1886 the Married Women (Maintenance in Case of Desertion) Act was introduced. In it justices were empowered to grant maintenance orders against a husband in a case where he had deserted his wife. The Summary Jurisdiction Act, 1895, re-enacted and consolidated those two previous Acts, and that is now the principal Act. In addition, I should mention the Licensing Act, 1902, which added habitual drunkenness to the causes for which a separation could be granted. In this case it is interesting to note that the wife as well as the husband can be considered the guilty party—the first time, I think, in which the possibility of the wife being at fault in this respect was considered in our legislation. There was also the Married Women (Maintenance) Act, 1920, which made provision for the custody of the children and their maintenance, and, finally, the Summary Jurisdiction Act, 1925, which amended and extended the previous Acts. The results of these Acts, so far as they affect matrimonial disputes, has been satisfactory, and I think in general it may be claimed that they are working very well. Relief may be granted under the law as it stands in the following forms—non-cohabitation orders, maintenance orders, custody of the children orders, and, of course, court costs. In addition to that, the wife may be committed to an inebriates' home in certain cases where her drunkenness causes danger to the children. But it should be pointed out that the relief does not always apply to both parties. A wife can obtain relief for assault, desertion, persistent cruelty by her husband to herself or children, neglect to maintain her, drunkenness, addiction to drugs, certain cases of venereal disease, and if the husband obliges the wife to submit herself to prostitution. The husband can get relief for habitual drunkenness on the part of the wife, for addiction to drugs, or for persistent cruelty to the children. As I have said, I think it can be said that these Acts are working well, though the Royal Commis- sion on Divorce in 1912 did recommend that the summary courts should only grant separation orders for a period of two years and that permanent ones should go to the High Court. The Departmental Committee, on whose report this Bill is based, disagreed, for obvious reasons, with the recommendations of the Royal Commission on Divorce, which, after all, were publishes' some 25 years ago, and I only mention that Royal Commission because I would, if I may, read two extracts to the House from their report. They said:Thus it will be seen that even in 1912 a great deal of reconciliation during the progress of these cases did in fact take place. Later on the report reads as follows:"We find that a very large percentage of the persons separated by such orders become reconciled afterwards … largely through pressure caused by the increased cost of living separately; by some witnesses this percentage is placed as high as 5o and even, in some cases, as high as 75."
The reason I quote these extracts is that in this Bill we appreciate the value of that criticism and separate the matrimonial jurisdiction from the criminal business of the ordinary courts. This brings me to the very important question of conciliation. Middle-aged bachelors very often appear in the pages of our more excitable novelists as home wreckers and serpents in the house, and I am trying to belie that general and unreasonable aspersion by introducing this Bill, which I think will go far to bring about conciliation in these summary courts. On the question of conciliation in general, the law is completely silent. One thing is quite clear, however, and that is that it is widely practised in the courts. It is certainly not illegal, and there is at least recognition by implication and, I think I may say, in the provisions of the Bill, too. In some cases on the Continent of Europe conciliation has to be attempted before any orders at all can be made. In this country, as hon. Members will know, conciliation is left purely to the discretion of the magistrates, and I think there is no reason to believe that in this country the justices of the peace are less aware than they are abroad of the immense importance of trying to maintain the permanence and sanctity of the home, and it is clear that they fully realise the absolute, necessity of doing everything they can to maintain the marriage tie. There is still a very wide diversity in the general practice of conciliation in this country. Some magistrates are very interested and do their utmost in suitable cases to bring about conciliation, but in certain courts it is hardly practised at all, and in some courts not at all. The vast majority of the courts, however, do in fact make some attempt at conciliation. The Departmental Committee made a very careful inquiry through some 6o courts, Metropolitan and otherwise, as to the extent to which conciliation is practised and as to its effects. They asked three questions of these courts, namely, to what extent is conciliation practised, who acts, and what are the results? The replies were to the effect that nearly all the benches in fact practise conciliation at some stage, that generally the probation officer is used as the conciliator, that in certain cases the agents of voluntary societies act, and that in some cases actually the magistrates themselves attempt conciliation. The answer to the third question—which was, How successful is it?—was that apparently, so far as the information goes, in about two-thirds of the cases in which conciliation has been tried it has been found to be successful, but I think possibly the evidence may be somewhat inconclusive there, because in fact the inquiries of the Committee covered only a comparatively short period, and therefore it was not possible to know how many people who appeared to be reconciled in fact remained together. I have given a general background of the Bill, and I must now ask the House to allow me to go into a few details, but first I would like to make two very important points. The first is that conciliation, as I think all hon. Members would agree, must not be forced, but it must be done with the consent of the parties, and the magistrates must not attempt to insist on conciliation being practised in cases where they know it is hopeless. Furthermore, the legal rights of the parties must be maintained, and the House will find, on examining the Bill, that there is no single word or syllable in it which in any way detracts from the existing rights of parties in matrimonial disputes in going before the courts. In dealing with the courts of law, therefore, we must, I think, remember that justice should come first, because they are courts of law, and conciliation only second. I will say now a little about the Bill itself, and if I may begin at the end, a rather odd way of doing it, hon. Members will see in the Schedule the class of cases which the Bill covers. They will notice that there is a provision that proceedings for enforcement of an order or variation in the provisions of an order do not come under the Bill, and the reason for that is that such proceedings may partake of a criminal character and the defendant may in fact be sent to prison, and consequently it would not be right, where a dispute of that kind is involved, to subject the proceedings to the provisions of this Bill. If hon. Members will turn to Clause 1, they will see that it provides that these domestic proceedings mentioned in the Schedule must be heard before three justices. At the present time, apart from stipendiary magistrates' courts, a quorum is two, but occasionally, I am told, as many as 3o magistrates sit on a bench, and the House can well understand that it is a source of very great embarrassment to women and men perhaps to have intimate family details tried before these very large benches, some of the members of which may have no sympathy with or understanding of that class of case at all. Under Clause r the magistrates will choose from their body those who are known for their tact and their knowledge of and interest in this kind of case. Ardent masculinists will note that at least one of the three justices must be a man. The first Sub-section of Clause 2 provides for the hearing of such cases at different times from other cases, but a certain discretion is left to the justices in cases where it is difficult to fulfil this provision. The object of it is to remove these civil cases affecting two people, and perhaps the children, from ordinary criminal cases. These cases are often heard in the middle of other proceedings when there are crowds of witnesses and other people about the court, and obviously that is undesirable. Women are unwilling very often to speak up, particularly where intimate details of their family life are involved. Some courts do have special times, and I think that that is highly desirable whenever possible. Sub-section (2) provides for the exclusion from the court of people who are not directly connected with the case. The reason is obvious, and the same argument applies to this Sub-section as to Sub-section (1). There are great evils from undue publicity. Women will not speak out, and all the evils which follow from modern publicity may arise from such a procedure. These hearings will not be heard in camera, because in the ordinary case the Press will be present, although there are restrictions on Press publicity in a later Clause. Similar provisions to those in Clause 2 are in the law of the land under the Children and Young Persons Act, 1933. Clause 3 deals with Press publicity, and has been drafted very closely in accordance with the Judicial Proceedings Act, 1926, which dealt with reports of divorce proceedings. My hon. Friend the Member for Bodmin (Mr. Rathbone), who is seconding the Motion for the Second Reading, will deal more fully with the evils of publicity. Clause 4 provides for a new procedure. If conciliation fails a nd an application is renewed, the court may receive from the conciliator a statement of allegations. The object is simply to arrive at justice. There are a number of people who go to these courts who are nervous, tongue-tied, perhaps ill-educated, and occasionally almost illiterate, and they are generally not legally represented. It is very difficult to arrive at the truth, because they are generally unable to cross-examine and to conduct their own cases, and it is naturally difficult for the magistrates to find out what is the truth behind the cases. The magistrates under this procedure will be able to elicit the truth by means of a statement of allegations obtained from both sides by the probation officer. It should be pointed out that the probation officer must obtain the consent of the parties to his statement of allegation, and they must approve it before it can he used. These statements cannot be used as evidence. Clause 5 enables the court to receive a report with regard to the ability of a person who has had a maintenance order made against him to pay. I need not stress this point, but it is, of course, in the interests of both parties to the case. If a special investigation were not made by the probation officer a man might be ordered to pay too little or too much. Clause 6 must be read in conjunction with Clause 4 because it has the same general implications. The object is to avoid the parties to the case being confined too closely to question and answer, and it alters to a certain extent the rules of evidence in this connection. May I ask my hon. and learned Friends in the House who practise in the High Court to consider whether it is not advisable to make some alteration in the procedure of the summary courts, because the parties are not legally represented, and the important thing is not a legalistic quibble but to arrive at the truth and to administer justice? I, therefore, commend this Clause particularly to hon. and learned Members who have such great experience in the administration of the law. Clause 7 authorises the probation officers to perform duties which are given to them under the Criminal Justice Act, 1925. Clause 8 makes special provision for the stipendiary magistrates' courts and the City of London. Sub-section (2) provides that the city magistrates can make their own provisions. Hon, Members may wonder why that was done, but I can only say in defence that it always has been done, and that it is also in the Children and Young Persons Act, 1933. Procedure by Order in Council is provided for in Sub-section (3) in order to allow a certain flexibility in measures to be taken. A Departmental Committee is now examining this matter and will report in due course. Sub-section (4) makes it clear that the Orders in Council for the purposes of this Bill shall not be restricted by the ancient Metropolitan Police Courts Acts. I must apologise to the House for having spoken rather too long. My hon. Friend the Member for Bodmin will draw attention to other points with which I have not had time to deal, and my hon. Friend the Member for South East Essex (Mr. Raikes), if he is so fortunate as to catch your eye, Mr. Speaker, will at a later stage deal with questions that are raised during the Debate. During the Committee stage, if the Bill is sent upstairs, I shall be perfectly ready to listen to any reasonable Amendments which may be proposed. I shall look upon them with an entirely open mind, though I believe I may claim that the Bill is well drafted and does carry out in full the first part of the report of the Departmental Committee. I believe that if the Bill becomes an Act it will provide a modest though extremely useful measure of social reform, and if it brings a little happiness to, or removes a little unhappiness from, the married life of this country I, for one, shall be quite satisfied."These courts form part of the judicial system for administering the criminal law in case of petty offences. We think there is a serious objection to a court, whose main duties are of a criminal character, entertaining applications, which are of a civil nature, concerning the domestic relations of men and women and their children, applications which, if granted, may produce the practical although not the legal dissolution of the marriage tie."
11.36 a.m.
I beg to second the Motion.
I think that I shall be expressing the feeling of the whole House when I congratulate my hon. Friend the Member for Penryn and Falmouth (Mr. Petherick) on the admirably clear way in which he has outlined the background, the history and the origin of this Bill. He has also outlined, roughly, the objects of the Bill, the chief of which is to provide machinery for conciliation. I think it is deplorable that this admirable work should be going on without proper encouragement, and, indeed, to a great extent without even legal recognition, and it is with that as the chief aim in view that this Bill has been drafted. He has explained the objects of the Bill, and I wish to explain to a certain extent the justification for the Bill and the need for it. First I want to say a few words about the extent of the work which is going on and which this Bill will affect. According to Command Paper 4977, in 1933, 13,603 summonses in matrimonial cases were heard by courts of summary jurisdiction and 9,718 orders were made. That does not give any idea, really, of the amount of work that is done, because the Committee, as is shown in their report, were convinced that a very much greater number of people go to see the clerks to the courts, the probation officers, and the various other officials- with a separation order in mind but do not proceed with their application, because they are convinced either that they cannot afford to live apart or that, rightly or wrongly, they have not got legal ground for an application. The type of applicant has been found to be almost entirely the wives of manual workers and artisans, and also, to a much lesser extent, wives of clerks and shopkeepers, and therefore the work of these Courts is definitely to help the poorer people. They are poor men's courts in more senses than one, because not only are they poor people who go to the Courts but, to a very large extent, indeed almost entirely, they are the wives of those people, and I think that even in these modern topsy-turvy days it is generally the husband who has the control of the money. I wish to compare the numbers of people who go to courts of summary jurisdiction with these matrimonial cases with the number of cases which start in the High Courts. In 1934 there were 5,046 matrimonial suits in the Divorce Division, of which 1,931 were begun through the Poor Persons' Committee of the Law Society, London. The proportion of poor people who sue in the High Courts has been rising fairly sharply, since 1922 at all events. I am using only the figures which are to be found in the report of the Committee on Social Services in the courts of summary jurisdiction. In 1922 there were 3,004, of which only 843 were under the Poor Persons Rules, and if we compare the higher figure in the year 1934—the figure of 1,931—with the 13,603 applications in courts of summary jurisdiction we realise that these latter are quite definitely the courts which poor people do use. There is, I admit, a provision in the Summary Jurisdiction (Married Women) Act, 1895, Section 10, which enables a court of summary jurisdiction to refuse to make an order on the ground that the matter in question would be more conveniently dealt with by the High Courts, but this power appears to be very rarely, in fact, practically never, used. Therefore, the matrimonial disputes of the poor are for the most part determined by magistrates. So much for the scope of the Bill. It affects large numbers of persons who have, after all, equal rights to justice with other people but who have not necessarily always the means. I wish to come now to the point which my hon. Friend who moved the Second Reading suggested that I should deal with—the restrictions involved in the Bill. The very word "restrictions" rings most unpleasantly in the ears of any Englishman, and for that reason I want to show that if possible they are reasonable restrictions, and not very great restrictions at that. The first occurs in Clause and restricts the numbers on the bench to three, instead of there being a full bench to which my hon. Friend referred. In that matter he hoped that we should be preaching to the converted, as I hope that I shall find eventually that I am doing with regard to the whole Bill. The next restriction, which comes in Clause 2, is a restriction on the numbers of persons who may be present in court. A list is given in the Bill of those who may be present and it is, on the whole, a reasonable and a generous list. The main point in creating this list at all is to try to prevent a host of busybody neighbours of the parties to the dispute going along to the court for, very often, purely morbid reasons. [HON. MEMBERS: "Hear, hear!"] That, I see, meets with approval from the House. There is also this other point of view. The aim of this Bill is to make conciliation as easy as possible, and where a crowd of inquisitive neighbours who may know, perhaps, very little about the story, but who hear that the case is coming up, go to the court, the various unpleasant details of the case may be the subject of gossip for weeks afterwards. It is obvious that with all this talk going on the chances of conciliation between the parties are bound to be very considerably reduced. There is this other point to be considered in the interests of justice, that it is less likely that the parties to the dispute will speak with freedom and lack of restraint in front of an enormous crowd of strangers and of neighbours or, indeed, in front of a large bench, when giving the details of some of the very personal matters which so very often underlie the grounds of application for a separation order. In sub-section (6) there is a provision whereby the witnesses in a case may be excluded from court while the evidence of other witnesses is being taken. This is obviously in the interests of justice, to prevent collusion, and so that witnesses shall not trim their evidence according to the evidence that has been given by other witnesses. What is perhaps more important is the restriction on reports in newspapers, which are dealt with in Clause 3. Before I go in greater detail into the subject of newspaper reports, it might be as well to point out that these cases are civil cases; they are personal, and in no way criminal, cases. For that reason the justification for a full press report, which is undoubtedly good in criminal cases, because it shows other people the effects of criminal action and the punishment that will ensue, does not hold good in cases of matrimonial dispute. I have here a bundle of newspaper cuttings. People who read newspapers know that one of the best-known and most efficient magistrates, Mr. Claud Mullins, has continually pleaded in the newspapers against the making of headline news of matrimonial cases. The report of the Committee gives various instances:And so on. I have picked up one or two of the actual clippings which I have here with me. Some of the headlines are:"Husband denounces wife as adventuress and gold digger; other woman threatens suicide."
and things like that. In some cases, remarks which have been let slip, perhaps not in all seriousness, are exaggerated to an unimaginable degree so as to turn them into headline news. Here is a case, which I will cite in support of my argument, in which a statement was made but was not taken very seriously, that one party to a dispute had not spoken to the other for five years. The result of it was a headline:"Marriage turns out disappointing: rotten husband'"
That obviously, is undesirable. Here is another case:"Twenty years' silence."
Perhaps hon. Members may not know that one of the applicants had had an Army career. He was an ex-service man and, as far as I know, he may not have had a particularly successful Army career; but that sort of report makes both applicant and defendant the laughingstock of the entire neightbourhood, and their estrangement is likely to become greater. There are more serious cases, in which certain newspapers—few of them, I am happy to say—insist upon an interview with one of the applicants, who may be very young, or buy the story so as to make a splash feature of it. I have one case here, in which real hardship ensued to the applicants, in spite of the fact that they had become reconciled. They had got behindhand with the instalment payments on their furniture. They were a young couple recently married; they had had their quarrel, and it was probably because of the quarrel that the instalments got behindhand. The case came up, and reconciliation was granted, most successfully, and the couple went back home. No sooner were they home again than the furniture van arrived. The company, strictly in accordance with their rights, because the payments were in default, claimed the furniture, but not because the payments were in default; it was because, they said, all this unpleasant publicity was bad for their business and they did not want it thought that theirs was the sort of business which supplied furniture to that sort of person. This case shows the extraordinary and unforeseeable length to which that type of publicity goes. The Clause is taken straight from the Judicial Proceedings (Regulation of Reports) Act, 1926, which applies, I believe at present, to divorce cases. Here, again, the restrictions are not oppressive. The Bill provides for the names and addresses and occupations of the parties; a statement of the charges, defences and countercharges; submissions on any point of law, and decisions and any observations made by the court. The Clause gives plenty of latitude, but it does, I hope, prevent the splash headlines to which so much objection can so reasonably be taken. The Bill is not full of new restrictions; it contains one or two Clauses in which a certain amount of restriction is removed. I think Clause 6 is particularly valuable. It deals with people who are not legally represented and who, for that reason, may not be able to put questions in cross-examination with any great degree of efficiency. The Clause says:"'You want a fresh start?' said Mr. Mullins. 'On one condition', said the defendant, 'that she does not throw up my Army career at me.'"
That Clause connects with Clause 5, under which probation officers have direction"Where in any domestic proceedings, or in any proceedings for the enforcement or variation of an order made in domestic proceedings, it appears to a court of summary jurisdiction that any party to the proceedings ho is not legally represented is unable effectively to examine or cross-examine a witness, the court shall take such steps as may be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness in the interests of that party, and shall put those questions, or cause those questions to be put, to the witness."
Those two Clauses go very closely together. The whole point of the probation officer being allowed to provide the report of his investigation is not that the report shall be used as evidence but that the magistrate, or whoever is to put the questions, shall have some kind of idea of the questions that ought to be put in the interests of the parties concerned. The whole idea, as hon. Members will see from the Bill, is to make conciliation easier. One more point with which I should like to deal concerns interim orders. It was stated by the Committee to be surprising how few was the number of interim orders that were issued. It is stated on page 17 of the report that of the 6,222 cases with which the Committee specially dealt, 1,776 were heard, but only 68 interim orders were made, compared with 846 final orders. The reason is, to a great extent, because the court has been so busy dealing with every kind of case jumbled up together. The Bill provides that cases shall be heard at particular times, after or before the ordinary business, or whenever it is most convenient. I hope that courts will, therefore, be able to deal more sympathetically with these cases. If they have more time they may not have the same inclination to award final orders and so get rid of the cases, but rather to provide interim orders which will give the parties time to think over what they are doing. There must be many of us who, when faced with important decisions, have been very glad afterwards that we did not take those decisions hastily. An interim Order will give the parties time to think the matter over without the hardship of absence of maintenance, and will enable them to decide how much, after all, one partner in the marriage is going to miss the other. In many cases one does not realise, until one's wife or husband perhaps goes away on holiday, or perhaps has to stay in hospital, or something like that, how necessary they are to one another, and it seems to me that there may be great value in their having an opportunity of trying to see, not only how well they can get on, but whether they can afford to maintain the two ends of the business separately. In conclusion, I should like to say that surely there is no doubt in anybody's mind that the family home is the all-important institution in this country, and to its betterment and safety all our thoughts and all our legislation are ultimately directed. Therefore, it follows that any legislation such as this Bill, which is aimed at preserving that family home at a time when it is in real danger of breaking up, deserves the very fullest support. The findings of the Committee show how necessary this Bill is. I would like to confirm the statement of my hon. Friend that the Report makes very easy reading. I feel sure that anyone who has read it is convinced that this Bill should be encouraged, and, to those hon. Members who have not read it, I would suggest that their free moments between now and the Committee stage would be well and enjoyably spent in reading the first part of the Report with which the Bill deals. In the meantime, while they are reading it, I do not hesitate to ask them to give the Bill a Second reading."to furnish to the court a statement in writing as to his investigation."
Before the hon. Member sits down, may I ask him one question?
Mr. Messer.
On a point of Order. May I be permitted to ask my hon. Friend if he would explain one point which he has stressed?
The hon. Member will no doubt have an opportunity of speaking in the Debate.
11.57 a.m.
I should like to congratulate the Mover and Seconder of the Bill on speeches which, I think, have been of the utmost value to the House. The Bill, in my view, is one possessing great social value. Those of us who have had any experience of sitting on the bench in a court of summary jurisdiction must all be aware of the feelings with which they deal with cases of matrimonial discord. 'There can be no doubt that from the very outset people who bring their cases to a criminal court are at a disadvantage from the standpoint of having their differences reconciled, and that arises at the beginning from the atmosphere of the court. If there is one minor criticism of the Bill that I would make, it is that in separating the business it does not go far enough. To deal with a domestic case prior to the ordinary cases being dealt with, or after the ordinary cases have been dealt with, does not entirely remove that atmosphere, and I would have preferred to see cases of this description dealt with, as so many children's cases are, in an ordinary room where there is no evidence of its being a court of justice. These people are not criminals; they have not done anything beyond discovering that there is an absence of suitability, that there is something in one or the other of them which may make it difficult for them to live together.
During the 12 years I have been on the bench I have learned that the very fact of giving evidence in a case of this description tends to militate against conciliation. If one of the parties is eager to prove his or her case, and in that eagerness is led to exaggerate differences which have existed, the consequence may be the development of a degree of bitterness which makes reconciliation more difficult. If it were not necessary for that evidence to be given in the way that it is, I think a great step forward might be taken, and I approve, therefore, of the provisions that make it possible for bringing into direct contact with the parties an officer such as the probation officer. We are finding more and more in the courts that the social aspect of the court is of value when cases are handled by tactful probation officers, and in many of these cases of matrimonial difficulty reconciliation is by no means impossible when the matter is handled by people who know how to handle it. Often a bench of magistrates seem to be seized with the idea that their job is to find that one party is in the wrong, and to make an Order accordingly, rather than to put in motion machinery which might render unnecessary the making of any Order at all. The point next in importance that strikes me is that of granting assistance to the party who is not legally represented. Here again experience helps us. Usually we find that, when a woman takes out a summons for persistent cruelty, failure to maintain, or desertion, the man is legally represented, because he is the wage-earner and is able to afford a solicitor, but that the woman, who has been deserted or has been badly treated or kept without money, is not able to afford legal assist- ance and when a lawyer gets on the job, and his business is to prove that his client is right, in doing that he does not study the feelings of the other party in the case. We often find that a woman under cross-examination will hastily answer a question, and later on will contradict herself in answering another question. A discerning and discriminating magistrate can see the reason why she has appeared to contradict herself, but the fact remains that she is not shown up in the best light when she is in the hands of a trained lawyer whose job it is to prove that she is wrong. I am glad, therefore, that the Bill contains a provision that a party who is not legally represented may be given assistance, though I should have preferred the provision of the same type of legal defence as the other party in the case is able to have. There is one other point which, perhaps, can be dealt with in Committee, and that is in regard to the panel of magistrates who deal with the case. I do not know how the situation is going to be dealt with in the light of the words "so far as practicable." That is a very wide phrase, and may mean anything. It might mean that, when the bench are deciding on the panel that is to sit to hear these cases, they may for some reason think it is not practicable that the panel should include a women member. I should like to see every such panel include a woman member, unless there is no woman magistrate on the bench at all, because I think it gives a sense of confidence to a woman who is the plaintiff in a case to know that there is a woman there. She is able to talk to a woman with greater fullness than to a man, who may be getting on in years and whose very appearance bears an air of austerity which is not calculated to enable the woman to state her case to the best advantage. It is most important that, just as we have decided in regard to children's courts that there must be a definite panel, so we should decide in courts of this description. I should like these cases to be heard in the evening, in an ordinary room, without policemen in attendance, and without the officers of the court. We who speak in this House have some experience of the difficulty of saying what we want to say in the way we should like to say it at the time when it ought to be said. If that is true of those of us who are experienced in putting our point of view and expressing our opinions, how much more true is it of a woman who, probably, has never done anything in the way of talking other than to her husband, which may have been the cause of the trouble—an entirely different type of talking from that which is expected in a court. Many clerks of courts are very particular that the rules should be observed with an almost scrupulous regard that they shall not be departed from in any degree. I have received private information in regard to one of the supporters of the Bill which I am not going to make public, but I wish him every happiness, and trust that he will obtain the fulfilment of his hopes in the passing of the Bill.12.8 p.m.
The point on which I attempted to intervene a short time ago has reference to Clause 2 (2) the desirability upon which we all agree, of having the court kept as clear as possible from the curious and from partisans. I was anxious to know how the hon. Member was going to bring that about under the Bill in its present form. Paragraph (b) of the Subsection says:
At times in certain cases the man or woman has quite an army of followers. They come to the court and, if the man or woman goes to a policeman at the court door and says, "I desire all these people to come into court," what is to stop them under the Bill?"and other persons whom either party desires to be present.—
12.10 p.m.
I congratulate the hon. Member for Penryn and Falmouth (Mr. Petherick) not only on the able way in which he has introduced the Bill, but in being able to bring forward a Measure which, obviously, has such support from all parties. I think every one will wish him success and will congratulate him on carrying off a double event before five years' membership of this august assembly. The hon. Member for South Tottenham (Mr. Messer) was discreet in his reference to one of the people who are connected with the Bill. I am not going to follow his example. I am going to say that we offer to the seconder our congratulations on being able to produce such a marvellous political birthday present for himself. I have no expert knowledge of any of these cases but, as one of the backers of the Bill, I should like to say that outside in the country it has the support of very many who have experience of dealing with the cases that come within its ambit; indeed, people who through various voluntary organisations spend their lives in dealing with cases of this kind are extremely glad that the Bill is now before the House. It must be a source of great satisfaction to the mover to know that he has introduced a Bill which is so needed, and which has the support of all who are thoroughly qualified to speak on matters of this kind.
I should be very sorry if the hon. Member for South-East Essex (Mr. Raikes) had no question to answer so, lest he should find himself in that untortunate position, I propose to ask him a question in order to have the pleasure of hearing his reply. It relates to Clause 3, which deals with the restriction on the publication of proceedings in the Press. Specific reference is made to proceedings in relation to the Guardianship of Infants Acts, 1886 and 1925, and the Summary Jurisdiction (Separation and Maintenance) Act, 1895 to 1925, but there is no specific mention of the Bastardy Acts, whereas in the Schedule the Bastardy Acts are mentioned and they, as well as the other Acts, form the basis of the Bill. I should very much like to know whether that omission was intentional. I have no doubt that there is a reason but, if it was an omission, there will be an opportunity in Committee of putting it in. If it was left out for some good and specific reason, perhaps my hon. Friend will inform the House of the reason. I am particularly glad of the permission given to people to obtain evidence through probation officers. I particularly welcome that Clause in relation to affiliation orders, because it must be obvious that the unmarried mother is in a particularly defenceless position in obtaining evidence of the means of the man concerned with her case. That is a most valuable addition to the Bill which will be widely welcomed throughout the country by all who deal with the cases of unmarried mothers. I am also extraordinarily glad that Clause 6 has been inserted dealing with the provision of legal aid. As a Member of Parliament I have had experience of cases in which the defendants have been unaware of their rights. In this country we make every possible attempt to see that justice is accorded to the poorest people and those who have no opportunity of getting proper legal advice, but sometimes I think that those who have the power of giving information to people do not appreciate the necessity of stressing that poor man's legal aid is obtainable. We do not always realise how very frightened are people who are called to court. I remember very well a case in which one of my constituents received, on behalf of her small boy, a certain charge. She thought that she was taking her boy to court to appear as a witness. She had no idea that the boy was in fact to be prosecuted, and she was so dumb with fright when she got to the court that she did not even take in what was said to her about her right to obtain a poor person's legal aid. She had no witnesses. The case was decided and her child was sent to an approved school for two years. She came to me, and when I heard her story I realised that she had in fact very valuable witnesses who had never appeared on her behalf in court. I was able to get poor man's legal aid for her, the case was reheard, and the boy was brought back from the approved school and reunited with his mother. I instance that only because I appreciate that it is necessary sometimes to tell people over and over again what their rights are, and I feel that the inclusion in the Bill of this particular Clause will make it certain that people who are frightened and who are not capable of knowing what their rights are under the law, will be told, and that there will be no fear of their giving evidence in court without their being properly and legally advised. I shall not detain the House any longer. I wish the Bill the very best of success. I am very glad indeed that my hon. Friend has introduced it and that he has the support of all parties in the House.12.19 p.m.
I congratulate the supporters of this Bill both on their choice of subject and on the admirable way in which they have introduced the Bill. I and my friends intend to support the Bill at every stage, and I think that the best service I can do at this stage is to make as short a speech as possible. I want to call attention to one matter which arises out of the question put to the hon. Member for South-East Essex (Mr. Raikes) by the hon. Lady the Member for Wallsend (Miss Ward). In Clause 2 Sub-section (2, b) there are the words:
I appreciated the purpose of the question, but it seems to me that we cannot altogether exclude that class of persons. A woman particularly might desire to be accompanied by her mother or aunt or some friends in order to give herself confidence. I extend my observation rather farther and say that I approached this Bill in the first instance with a prejudice against Clauses 2 and 3 only because I have always desired all matters connected with the administration of justice to be accompanied by the greatest possible publicity. I am convinced by the arguments put forward by the Seconder of the Motion that the proposals in the Bill are necessary and desirable because of the special class of case with which we are dealing, but I should not like it to go out from this House that we lightly accept restrictions upon the fullest publicity in matters relating to the administration of justice. Let it be clearly understood that it is the very special nature of this particular kind of procedure which impels us to accept provisions such as are inserted in the Bill, and I hope that in Committee we shall not have a series of Amendments which will make still more stringent the necessary restrictions, as I believe them to he, which are at present included in the Bill. Once again I congratulate those who have brought the Bill forward, and I wish them the greatest success."and other persons whom either party desires to be present."
12.22 p.m.
I would also congratulate the Mover and Seconder of the Bill. They explained its provisions most admirably, and on the whole I think the Bill as it stands is very good indeed. There are, however, Clauses which will have to be very carefully considered in Committee, and dealt with by the Law Officers of the Crown if they will attend. There are one or two things that I would mention. I thoroughly approve of Clause r, which provides that there shall be one woman in courts of summary juris- diction for domestic proceedings. I hope very much that there will be no question about that. In Clause 2, which deals with sittings of the court, I think there ought to be a provision that the sittings ought not to be at the beginning or end or middle of the ordinary court, but ought to be a quite separate thing on a separate day, so that there may be no possible question of mixing the proceedings with ordinary business and getting the ordinary crowd present. That is very important. In Committee a provision might be inserted to ensure that arrangement.
I thoroughly sympathise with what was said by the last speaker about the exclusion of people, the ordinary public, from courts of justice generally. There is not only the difficulty raised by Clause 2 in Sub-section (2, b), which refers to "other persons whom either party desires to be present," but also in Sub-section (2, e) there is a reference to those "who appear to the court to have adequate grounds for attendance." I do not quite know how that is to be arranged. Have these people to apply beforehand and what are "adequate grounds?" Personally, I have the greatest reluctance to shut out the general public from courts of justice, because I think the attendance of the public is a great deterrent against evil doing. A man who behaves badly to his wife wants to be shown up, so to speak, but at the same time this domestic jurisdiction has to be carried on in an atmosphere of privacy. It is not uncommon in the High Court for a great deal of work relating to infants to be done by judges in chambers for the purpose of privacy. My hon. and learned Friend the Member for North Hammersmith (Mr. Pritt) will confirm me in that statement. There is no difficulty whatever about it and no miscarriage of justice occurs. Clause 3, which deals with the question of the publication of reports, is also good; there is no possible doubt that that is right. There is no reason at all why that restriction should apply only to the High Court. One of the principal reasons against reporting evidence in full is the great difficulty of getting independent witnesses to come and speak. If what they say is to be reported, along with the cross-examination and so on, they are very reluctant to come to the Court, and it interferes with the course of justice if all the evidence is published. Clause 4, which deals with the procedure in certain domestic proceedings, ought to be very carefully looked into in Committee. The "statements of allegations" have to be very carefully drawn up. Probation officers are, no doubt, extremely helpful to the people who are parties to the suit, but the statements will have to be very carefully scanned. I am very glad to see that they are not to be received as evidence. I am not quite sure what is meant in Clause 6 by the words—This ought to be very carefully explained in Committee. I hesitate to say anything about the poor person's procedure in the presence of the hon. and learned Member for North Hammersmith, because on the last occasion he was very angry with me and said that I had been rude to him. I apologise, because I do not wish to be rude to anybody. At the same time, this Bill and the Marriage Bill, if they become law, will open up a very great vista for poor persons, and will facilitate matters and enable them to obtain their rights, and also save an immense amount of time. I agree with him that, if it is to be effective, very much more will have to be done than is done at present. Some new organisation will have to be set up. The other parts of the Bill, on the whole, are all right, but, as I have said, they will have to be looked at very carefully. Subject to these remarks, I have very great pleasure in supporting the Second Reading of the Bill."take such steps as may be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness in the interests of that Party."
12.28 p.m.
I, also, wish to add my congratulations to the promoters of this Bill. It is a very sensible Bill, and shows a profound knowledge of human nature on the part of those who have instigated and presented it, especially in regard to the Clause about restricting the public from the Courts. The hon. Gentleman said that a woman might require her mother, but the mother may be at the bottom of the dispute. I think that there is something to be said for the man or woman who might have one or two friends but not free access to all and sundry. That could be avoided quite easily by putting in a Clause restricting to one or two friends, but I would certainly not allow them to bring down to the Court supporters to sit at the back. It is very often neighbours who cause the trouble between the parties. A wife may have been dejected because of a fancied neglect, and she gets neighbours to sympathise. with her, and before you know where you are, trouble arises.
I remember the case of a very wealthy citizen in Glasgow who left his country house to live in Park Terrace, which is the Carlton House Terrace of Glasgow. He was a person not too refined, but had a great deal of money. His friends said, "How do you like living among the aristocrats of the place?," and he replied "They are very interfering." He said, "The wife and I were having a bit 'tuilzie,' that is, a quarrel, on one occasion, and they had the cheek to send for the police. I have now bocht the twae houses on either side, and I keep them empty so that my wife and I have leave to quarrel in peace." Those houses then cost 10,000 or £15,000 apiece. As to a statement by the probation officer, this might not be evidence or proof in a case, but if a man or woman sat down and were talked to in a friendly fashion, it might do a great deal of good. The strain of giving evidence is very great, and even members of the legal profession do not like to go into the witness box themselves any more than surgeons like being operated on. In cases of this kind, where there is much human nature and sensibility, some provision to prevent publication of evidence is necessary. The Clause which deals with reasonable grounds for attendance should be withdrawn. It is far too wide. After all, these disputes are between the parties themselves, and the less the public have to do with them the better. It is a question of privacy entirely, and that is why I object to authorising the presence of representatives of newspapers and news agencies. Why should they be there to get cheap copy out of headlines, as the seconder of the Motion has shown? They should not be there at all. It is none of their business. It is a dispute between husband and wife. It is not a criminal offence. Why should they be there for the purposes of the Press? In some cases recently we have seen a great lack of respect for the sanctity of the domestic life of people suffering from serious trouble. Why should the Press obtain this privilege? It does not interest them in the least. It is usually only the neighbours next door who know about these cases, and, therefore, why should people be pilloried by having their names and addresses and occupations published? There is no reason for it. There is no necessity even for the names of witnesses in these cases to be mentioned. They should be referred to as "A" or "B", and so on. The publication of these cases make it much more difficult for the parties to come together again. A very wise suggestion was made that all these alimentary allowances should be made interim. It is not in the Bill, but should be put in, so that the parties can come up again after six months. After a year or two they might get awfully tired of the expense and trouble of living separate and they might well become reconciled again. But if you put details in the newspapers, and they are pilloried; if the names and addresses and occupations of witnesses, the cause and grounds of the application, and countercharges upon which evidence is given are published, you have no chance of bringing about a reconciliation. Why should we make this sort of provision? It does not help the administration of the law. In cases of crime, and civil conduct, other than marriage, there may be reason for publication, but in cases which are purely disputes between the parties, why should representatives of newspapers or anyone else sit round the table and hear what the row has been about? It is not good for any of them. It is often only out of idle curiosity. I would exclude them entirely. There is no need for it. With regard to Clause 6, I agree with the provision that ifThe court ought to ask such questions as it thinks fit. I recall that on one occasion a celebrated Scottish Judge, Lord Young, in the Court of Session, thought that counsel on one side had not handled the case properly, so His Lordship took the matter in hand and proceeded to put questions. After his Lordship had finished, counsel on the other side remained silent, and His Lordship said: "What are you waiting for?" Whereupon counsel replied, "I am waiting for your Lordship to call your next witness." But that was where there was a real litigation. Here there can be no objection to the court asking questions; indeed it is right and proper that they should do so, not for the purpose of showing any sympathy with one side or the other, but in order to bring out the real facts. There is nothing more pathetic than to think how antiquated, how difficult and how hard our courts of justice are on the ordinary litigant. On one occasion an American said to me, that one of the greatest solvents of difficulties and one of the greatest social cements was to have ready and cheap access to the courts of law, but he pointed out that in America the cost of even the initial writ was beyond the reach of more than 25 per cent. of the citizens. It is a great pity that that state of things exists in this country to a large extent. The cost, the delays and the difficulties of legal proceedings are such that very often people will submit to great injustice rather than go to court. My hon. Friend the Member for Cambridge University (Sir J. Withers) will agree with me that the first business of a lawyer who knows his business is to keep his client out of the law courts, because of the cost and the difficulties that arise.!In these disputes arising out of ordinary domestic relations, very often the result of friction or temper between the parties, there ought to be some vehicle, some means of reaching conciliation apart from the ordinary judicial proceedings, somewhat on the lines of the intervention of the wise friend who is sometimes called into council in family disputes. This Bill takes a step towards that end, but the procedure under it ought to take place without any publicity, because it is an affair between the man, his wife and the conciliation court, and is nobody else's business. These Clauses might be very much strengthened in Committee."it appears to a court of summary jurisdiction that any party to the proceedings who is not legally represented is unable effectively to examine or cross-examine a witness, the court shall take such steps as may be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness in the interests of that party."
12.38 p.m.
I should like to join very heartily with other speakers in congratulating the Mover and Seconder of the Bill, which I regard as a very valuable provision towards an improvement of the law. Those of us who have sat on the magisterial bench must have been impressed by the changes that have come over them gradually for some years past in the kindlier way of looking on these distressing cases which come before us. At the same time we must recognise that there is a great deal more that could be done, and I think this Bill will contribute greatly in that direction. I join with what has been said in regard to the presence of officers of the court, and I hope that it may be possible to get as far away as is reasonably practicable from the idea that the procedure is that of a court of summary jurisdiction. The more the procedure can be of the nature of a court of reconciliation, which I am sure is the intention of the promoters of the Bill, the better.
I suppose that all of us at different times have been conscious in certain cases that when a witness has been giving evidence it has not infrequently happened for the witness to keep his or her eye upon somebody else in the court who would make signs or give a wink or a nod as the case proceeded. If it were practicable for the proceedings to be something in the nature of a preliminary interview with the two parties concerned, and for the so called court to interview the applicant alone and then to hear the other party, without the presence of any one else, it would really tend to reconciliation being brought about. Whether or not that may be practicable I am sure that the whole tendency of the Bill is very valuable, and I have no doubt that the House will give it such support as it deserves.12.42 p.m.
May I, also, be allowed to congratulate the Mover and Seconder of the Bill? We who are getting on in years are always delighted to find that there are men coming on who not only have a good case but know how to express it. The way that the Second Reading of the Bill was moved to-day was admirable, and in keeping with the highest traditions of the House. I am very much interested in the Bill. I occasionally sit on the magisterial bench, especially in the juvenile courts, and am particularly interested in anything that has to do with young people. I agree with what has been said, that the people concerned in these cases and who appear in the courts are not criminals. They go there to put their case before the court, and I should like such proceedings to be heard in a private room round a table with as few people present as possible. On that point I am afraid that I must disagree with my hon. Friend, because when there are Nosey Parkers, busybodies about, one does not get the real feelings of the people concerned, although perhaps on other occasions when things are more serious it may be good to have publicity.
For a year or two I was chairman of the Staffs Appeal Committee of the London County Council and when people came before us I often found that when they had no representatives to speak for them they entirely misstated their case, not that they wished to tell untruths, but they did not really know what they were saying. They contradicted themselves to such an extent that as chairman I often had to intervene and say "I presume that what you meant to say was so-and-so." "Yes, Sir," they would reply, whereupon I remarked: "Well you have said quite the opposite." These cases should be carried on more in the nature of intimate discussions, in which the people might be considered to be chatting rather than making a speech. If that course were adopted, the procedure would be very helpful. It might be advantageous from time to time to adjourn the proceedings and allow the interested parties to come back a month or six months later after they have considered any advice which may have been offered to them. Perhaps I may be allowed to give a personal incident which happened in my career. At one time I was British Consul in the Far East, and when I was leaving a Scotsman said to me, "Mr. Campbell, we are really sorry that you are leaving us. You are the finest consul we have ever had." I said: "Do not talk nonsense, but seeing that you have made that statement, I should like to know why you think that I am the finest consul you ever had." "Well, he replied, we of the British community here come to you from time to time with our troubles; it may have been about our business, or about our families, or about a row with the wife or the children, and you have said" sit down, have a cigarette, and we will talk for five minutes. We used to sit down and tell you our troubles. Then you would say, Very good, I will think it over and see what I can do for you? And you never did a darn thing." I think it was meant as a compliment. At any rate, I have always remembered it, and I think there is a good deal of truth in it. People like to go to someone who, they know, has sympathy with them and that what they have said will not be passed on to anybody else. In our difficulties it is always helpful to be able to go to someone and talk them over. From what I have seen of them I think the probation officers will be very helpful. I hope that as much use as possible will be made of them, provided you have the right person. The Bill deals with the kind of cases which might very well be heard in a manner similar to juvenile cases. People who have got a little bit apart from each other for one reason and another, if they can find two or three sympathetic people discussing their difficulties, and are given a certain amount of time to consider the advice which may be offered will, I think, come to realise that they are like many of us, very foolish.12.47 p.m.
Like most hon. Members, I support the Bill. I do not want the House to look upon it as a modest Bill. I regard it as a Bill which has some formidable but very valuable innovations in it. It is more a revolutionary than a modest Bill, and that may be why I have pleasure in supporting it. Hon. Members, particularly hon. Members of the Conservative party, have pointed out the extreme difficulty which poor men have in making their cases understood in our courts of law. I have been writing that for years and years, and half of my profession hate me like poison for having done so.
You wrote in the wrong papers.
I am afraid that when I was writing I did not obtain easy access to the journals which the hon. Member probably reads. But, at any rate, I tried and failed, and I shall never trouble to write these articles again. I shall buy a few copies of the OFFICIAL REPORT of 5th February and send them to anybody who wants to write articles, saying that the sentiments expressed by Conservative hon. Members are my sentiments, and that they need not worry any further. A very great deal has been said this morning about reconciliation. I agree, and I was glad to hear the hon. Member for Penryn and Falmouth (Mr. Petherick) say that while reconciliation was a very good thing, and that these people were not criminals, yet if conciliation did not succeed, they were litigants and had a right to have their cases decided by the courts. In saying that I do not mean to raise any objection to the informality and easiness introduced into our procedure, indeed, I think Clause 2 might carry the matter a little further than it does. With regard to what the hon. and learned Member for Argyllshire (Mr. Macquisten) has said, I think that it is desirable to have the place cluttered up with busybodies and Nosey Parkers and to have things splashed across the newspapers, but for the reasons given by the senior Member for the Cambridge University (Sir J. Withers) some of these cases may involve litigation of a serious kind, concerning the status and happiness of people and large sums of money, and it may be that if these cases take place without any public ventilation at all, the procedure may lend itself to all sorts of evils, casual misbehaviour and gross licence on the part of witnesses who may think that they will never be discovered. That may be a greater evil.
There is a valuable provision in Clause 4 regarding "statements of allegations." I want to utter a word of criticism in regard to Sub-section (3), which says:That means that you give a magistrate in effect a sort of proof, and he uses this sort of proof as of very great assistance to him in eliciting the story from the witness, but if the witness does not follow the proof, or other evidence is given against it, the magistrate is to eliminate the proof entirely from his mind. I am very sorry, but he will not. A trained lawyer finds it difficult, and an untrained magistrate finds it impossible. In this choice of evils, however, I would rather see the Sub-section in the Bill, and I hope it will be made to work, because if it works tolerably well it will be better than if it were not in the Bill. The hon. Member for Wallsend (Miss Ward) will forgive me if I make one or two criticisms on the points she made. I am not sure that the Bill does what she thinks it does. She welcomed Clause 4 as being of great value in affiliation cases. Textually the Clause may apply to affiliation cases, but a great many courts will think that the idea of effecting reconciliation between the parties is primarily intended as between married couples and not as between unmarried couples. There is no reason why it should be, but they will be reluctant to effect a reconciliation between unmarried mothers and the fathers of their children. Sub-section (4) of Clause 5, providing that statements made by probation officers, even in the limited area of the Clause, shall be received by the court as evidence, is a highly revolutionary provision. It is a thing, quite frankly, for which I have been longing for a very long time. It may be a most valuable experiment, but it is a pity that the experiment should be made on the poor. Experiments are always made on the poor. But I think it will prove that our laws of evidence, which have a valuable side as well as a bad side, will be demonstrated to be more bother than they are worth, and that this will be the beginning of the death blow to the rigidity of our rules of evidence. I welcome that. With regard to Clause 6, I think the hon. Lady the Member for Wallsend thought that Clause meant that the court was to take such steps as might be appropriate for the purpose of obtaining information as to the questions which ought to be put to the witness by getting some legal representation for the witness. I wish that were so. I hope the Clause will be amended so that it does have that effect, but I feel confident that it does not have it as it stands. I think that any magistrate's clerk will tell the magistrate that what he must do in those circumstances is to be as patient and careful as he can in order to get the witness to give any sort of hint he can as to what he is driving at, so that the magistrate may examine the witness and see whether he can get to the bottom of the story. It is almost a denial that this is a civilised country when a large part of the population has to get its litigation done in that way. People who can afford to hire lawyers do not have their litigation done in that way. Lawyers may have their defects, but they must be of some use or they would not survive in such numbers, and one of their uses is that a person can go to a lawyer's chambers before the case comes on, the lawyer can discover what the facts are and what is the best way of meeting the facts that are likely to be advanced on the other side, and he can go into the court and ask a fairly good number of right questions and not too many wrong ones. But the magistrate will not have looked at the case beforehand, he will not have read any documents about the case, he will not know the facts, and he may put the most fatal questions. Probably if he tried to make a living as a lawyer, he would break down. Why should any litigant have inflicted upon him that utterly inadequate method of conducting his case?"Where statements of allegations have been furnished to the court and delivered or sent to the applicant and the defendant under this section, the court may, if it thinks fit, make use of the statements of allegations for the purpose of asking questions of any witness, so, however, that nothing contained in a statement of allegations shall be received by the court as evidence."
Would not the magistrate have the reports of the probation, officers in these particular cases?
They would in some, but not in others. I hope that at a later stage some Amendment will be brought forward on this Clause which will lead to some form of representation being provided for these people whenever it appears reasonable or necessary. If one of these cases is taken into court, as it is proposed, either now or after this Bill is passed, and someone suggests that a poor man's lawyer should be obtained to represent the person concerned, let it be remembered, to the eternal shame of this country, that there is no machinery and no power of any description—it is a private charity—which can get that person a lawyer for five minutes. Th3t is one of the reasons I welcome this Bill.
I believe that if this Bill becomes law, that iniquity will be exposed so much more than it has been exposed in the past that it will lead, in the near future, to proper machinery being supplied for the provision of poor men's lawyers. I welcome this Bill because it is a good one, but an additional reason for my welcoming it is that I believe that, if it is passed into the law and worked properly, the defects of our magisterial system, the severe limitation in numbers and occasionally also in quality of our probation officers, and the deplorable lack of opportunities for the provision of legal assistance for poor people will be so exposed that those defects will be remedied much more quickly than would otherwise be the case. If we can add to that also the fact that we demonstrate to the world that we can still litigate, while enormously simplifying our procedure and rules of evidence, the Movers of this Bill may come to the conclusion in ten years' time that, not only have they benefited a few people, but have done a very great deal for all poor people.If the hon. and learned Member will allow me to correct him, I did not refer to Clause 4, but to Clauses 5 and 6, which deal with investigation of means and the appropriate means for magistrates to deal with the examination of witnesses. I did not refer to conciliation with regard to affiliation orders.
If we both read the OFFICIAL REPORT to-morrow morning, we shall see who is right.
May I say that if I did refer to Clause 4, it was in error? The context of my speech made it plain that I was really speaking about Clause 5.
1 p.m.
In joining in the general support of this Bill, I wish to deal briefly with those Clauses which have relation to newspaper reports. These provisions are a regrettable necessity which ought never to have become inevitable. If newspapers generally would, as many newspapers do, deal with matrimonial cases in the police courts in the spirit, if not in the strict letter, of the Judicial Proceedings Act, no necessity would have arisen for further restrictions. Freedom of the Press is an essential condition of the successful working of the modern democratic state, but that freedom must be exercised with a full sense of its responsibilities and privileges, and must not be construed as licence. Unfortunately, a section of the Press, comparatively small in numbers but large in terms of circulation, has built up that circulation not by fulfilling its duty of informing the public, but by satisfying the public appetite, which undoubtedly exists, for sensation and for the seamy side of life. To pander to the public in that way is to construe freedom as licence, and it is because this Bill restrains licence rather than restricts freedom that I welcome it.
I turn now to the actual proposals of the Bill. I can raise little objection to Clause 3; in fact, I would like it to be widened so as to prevent the unedifying and growing practice of interviewing those persons who have been through the divorce courts or have been concerned in matrimonial cases in the police courts. If we could find some means of stopping that practice, it would be all for the good. I think that some definition of the phrases used in the Clause could be included with advantage. Some small additions to the facts which might be published, which would add to news value without offending against the spirit of the Bill, might also be usefully made. There might also be some slight changes in drafting to secure that what has become the established practice under the Judicial Proceedings Act, namely, that no evidence should be reported until the evidence has been completed, should apply in this Bill. However, those are matters which I feel can better be raised in the Committee stage. I think it would be desirable to widen the provisions of Sub-section (1, b) so as to secure the proper treatment of cases under the Guardianship of Infants Act. Under the Sub-section as drafted, I can see some difficulty in reporting fairly such cases as an application for consent to marriage, for although it is possible to state the grounds for the application, it is not possible to give a concise statement of the facts. The concise statement allowed is limited to "charges, defences and counter-charges" and in such cases as I have mentioned there is none. Therefore at a later stage I would like to see this Sub-section widened in order to permit a concise statement of the relevant facts. Clause 2, Sub-section (3) lays down that the Press can be excluded "in the interests of the administration of justice or of public decency" during the taking "of any evidence of an indecent character." I think this raises an important point of principle. I regard that provision as an unnecessary and harmful restriction of the freedom of the Press. It not only introduces a new reason for the exclusion of the Press which up to now is only possible in the interests of the administration of justice, but it is not, in my opinion, in the best interests of the public. His Majesty's judges have frequently expressed dislike of legislation which tends to the hearing of cases in camera, and the length at which judges in the divorce court sum up and deliver judgment and by so doing enable the Press to report facts which they could not otherwise report, is an indication that in their judgment it is in the public interest that the full facts should be known. The deterrent effect of fair publicity should have full play. Then, too, I think the presence of the Press is a valuable corrective to magistrates with strong personal views, religious or otherwise, on these matrimonial matters, particularly as not only do magisterial temperaments vary but they are sometimes inclined to be arbitrary. Further, no two magistrates are likely to agree on a definition of public decency. There is another good reason why the Press should not be excluded. Under the Bill, a concise statement is permissible of the charges, defences, and counter-charges in support of which evidence is given. If the Press is excluded during part of the evidence, the concise statement can easily include facts about the charges allowed under the Bill, but rebutted by evidence which is given while the Press is excluded and which may not be referred to by the court in summing up or giving its decision. In such circumstances where will the Press stand? Is it debarred from subsequently doing justice to the aggrieved party by publishing an explanation, or is it liable to an action for libel on the ground that its report is not fair and accurate? I submit it would be better to allow the Press to be present, and to know the facts and to be able to weigh the evidence and prepare a fair and accurate concise statement. If that were allowed, then you could strengthen Clause 3 by prohibiting, as in the Judicial Proceedings Act, the publication of any indecent evidence. Subject to what I have said, I feel that the Bill does not harmfully restrict the freedom of the Press. It will certainly curtail the licence of a section of it. I hope, however, that the promoters will at a later stage endeavour to meet the views which I have expressed. After all, the larger section of the Press desires to and does perform its functions with decency and moderation. That section ought to be encouraged and not penalised for the faults of others. It is very difficult for that section of the Press to find any means of controlling the defaulters. In practice, control can only be exercised by the weight of public opinion, or by the action of the legislature. Failing the exercise of control by public opinion by a refusal to buy the newspapers that do these things, the legislature must take action. I only ask that, in taking such action, it shall not penalise the innocent with the guilty.1.10 p.m.
I support the Bill with particular pleasure because I spend so many Fridays in opposing Private Members' Bills of a different type. Almost all Bills are bad, and it is a pleasant thing to find that we have before us to-day a Bill which everybody in the House seems to regard as being, on the whole, a good Bill. I wish to deal briefly with certain points which have been made in the Debate, and first, with what the hon. Member for Sunderland (Mr. Storey) has just said in regard to the presence of the Press at the hearing of these cases. The provision in Subsection (3) of Clause 2 is that during the taking, in any domestic proceedings, of any evidence of an indecent character, the court may exclude the Press and others. I think the real object of that is to assist the parties to a domestic dispute to have the greatest opportunity of saying with ease to themselves everything they wish to say in regard to that dispute. I agree that a considerable section of the Press take a very high line and a very proper line in regard to the reporting of cases of that character. It is only when a certain sensational section of the Press have taken these matters up that difficulties have arisen. At the same time if you are, for instance, asking a woman to give very intimate evidence in regard to her married life it does not make matters easier for her if she knows that she is speaking in the presence of people who are not actually concerned with the case. I hope, therefore, that this provision will be retained simply for the benefit of the people who are giving evidence.
The hon. Member for South Tottenham (Mr. Messer) stressed the view that these matrimonial cases should not only be taken at a different time from the other business of the court, but that they should also be heard in a different room which would be more informal than the large court-room. There is a good deal to be said for that when you have proper accommodation, but there are many courts, particularly in the country, where there is practically no accommodation available outside the ordinary court-room. In the court where I act as a magistrate, there is only a very small room apart from the court-room. You could, at a pinch, squeeze a number of people into it, but if any considerable number of persons were present it would be necessary to squeeze them rather too tightly to be comfortable, and although we all want informality I am not sure that in a domestic case it is desirable to have the husband and wife too much cheek by jowl when one or other is giving evidence. Indeed, I have known of cases in the ordinary court in which it has been just as well for the peace of the court that the parties have not been within striking distance of one another. A further point was made in regard to the panel of magistrates. It is suggested that it would be advisable in every case that a woman magistrate where available should be one of the three magistrates to hear these cases. The way in which the Bill is framed makes it practically certain that where there happens to be a woman magistrate who is an ordinary member of the court, she will be appointed almost automatically to the panel of magistrates dealing with domestic cases in that area. If it were made obligatory you might be put in a difficult position. Undoubtedly, a good many more women magistrates will be appointed in the next few years which will be all to the good, but while at the present time you have a number of courts in which you have extremely energetic and intelligent women who would obviously be selected as members of the panel and you have on occasions a court where there is only one lady member who, as a matter of fact, for one reason or another, hardly ever turns up, if you made a woman magistrate obligatory under this Bill, it would mean that a magistrate who would not usually attend and had little experience would be compelled to be brought in for perhaps the most difficult sort of case that justices have to consider, because these domestic cases are much the most difficult of the cases that come before the ordinary courts of summary jurisdiction. If the number of women magistrates increase, you will find it quite easy to have a woman magistrate in every court, and I think we need have no fear on that score. A limited court has a further advantage, and again, speaking from some personal knowledge of summary jurisdiction courts, I should like to call attention to this point. As I say, domestic court business is far the most difficult that we have to do, because the slightest slip in regard to a domestic case may mean years of unhappiness for the persons who come before us. In the ordinary way I think our summary jurisdiction courts are quite good, and I do not think it very much matters if you do happen to have a large number of magistrates sitting on the bench in those cases, but there are certain courts where the presiding chairman may be growing very old. He may have been there for a very long time, and he will never be deposed so long as he continues to come, because he is very much respected, although he is getting deaf, it may be, and a little bit past the work. If you simply bring your domestic cases before the full court, you will have as presiding magistrate at times somebody who will not be able to hear a great deal of the evidence, and who will not be the best person to direct the cross-examination of witnesses which is suggested in the Bill. If you have a special, small panel for domestic cases, I think that the presiding chairman, if he is very old, will not be called upon to preside in these cases, so that I think that a panel, if for that reason alone, might very well be justified. The hon. Member for Lincoln (Mr. Liddall) raised the question of other people to be present in court. I think a reply was given by the hon. Member for Middlesbrough (Mr. K. Griffith) you are bound to have domestic cases where a woman will wish to have the moral support of some close relative such as her mother while she is giving evidence. The hon. and learned Member for Argyll (Mr. Macquisten) suggested that the mother might be the cause of the domestic trouble, but, that would be an additional reason why she should be there, for after all the court is there to discover all the facts in relation to these disputes. The hon. Member for Wallsend (Miss Ward) raised the question on Clause 3 as to why, although reference was made to the Guardianship of Infants Act and to the Summary jurisdiction (Separation and Maintenance) Act, no reference at all was made to the Bastardy Acts. The reason is simple. In those cases it has always been the custom to permit a certain amount of Press publicity of a kind which would not be permitted in ordinary cases coming under this Bill, and the reason is obvious. You get bastardy cases, I do not say criminal cases, where the man himself may be a public menace in the district, and the Press serves a very useful purpose in showing such a man up, and it is very wise that it should be done in the interests of innocent girls. I would like, before resuming my seat, to take the opportunity of paying my own tribute to the hon. Member for Penryn and Falmouth (Mr. Petherick) for introducing this Bill. It is a good thing that Parliament should now and again be called upon to discuss Measures which are not controversial and which do not in any way provide sensational copy for ale Press, but which nevertheless do real good and prove that you have in Parliament not simply different sections of men sitting opposite to one other and fighting one other on every occasion, but that when Parliament gets down to fundamentals, men of all parties are prepared to co-operate where they conscientiously can for the common good. I believe that this Bill, if it passes into law, will accomplish a great deal of good and that the hon. Members who introduced it will not be forgotten by posterity.1.21 p.m.
I think hon. Members will agree with me that we have had this morning a most interesting discussion on a most important matter. The hon. Member for Penryn and Falmouth (Mr. Petherick) opened the debate with a most interesting and valuable speech, and he gave a valuable survey of the past history of this matter. He traced the development of the courts of summary jurisdiction in matrimonial cases and the growth of conciliation in these courts, and, therefore, it is not necessary for me to go over that ground, but perhaps I might be allowed to make a general comment.
The House will, I think, agree that during recent years there has been in this country a great movement towards what one might call the humanising of the administration of justice and of mat- ters connected therewith. In the criminal courts the offender is now treated, much more than he used to be, in the light of his own individual circumstances, as well as of the formal provisions of the law, and the civil courts have tended to move away from the position of being merely austere administraters of the law, and to take, in addition to that, an attitude in which they desire, if possible and in suitable cases, to be helpful advisers of those who come before them. From a very broad point of view, one may regard the great movement for the improvement of conditions in the prisons as part of this broad, general, reforming movement. The courts of summary jurisdiction have fully participated in this movement, as was shown by the hon. Member for Penryn in his detailed survey. It is perhaps just as well to remember that a great deal of the motive force behind that improvement has come from the justices themselves, arising out of their experience in the work of the courts. This process in the courts of summary jurisdiction has special features, arising out of the fact that they have a mixed jurisdiction, both criminal and civil, and I think it is as well at this point just to mention the unfortunate effects that arise from time to time from the popular use of the term "police courts" in regard to courts of summary jurisdiction. Even the hon. Member for South Tottenham (Mr. Messer), with his experience, referred to people coming before "the criminal courts." The position is that these courts have both civil and criminal jurisdiction, and in recent years there has been a great addition to their powers in both spheres of the law. That makes it particularly essential to have special arrangements for the treatment of certain departments of the work of the courts. The work of humanising these courts has been carried a considerable step forward by the work of the Harris Committee. As a result of their report, the Home Office issued a circular to magistrates last July drawing their attention to those aspects of it which could be put into operation without legislation. The greater use of conciliation and of interim orders were two of the important points in the circular. This Bill really completes the process by bringing into operation Part I of that Report, in that it treats of the matters in that Part in which legislation is necessary. It deals with the procedure of the courts. I should like to turn to the actual subject matter which comes before the courts, with which the alterations of procedure in this Bill are concerned. Broadly speaking, the matrimonial causes relate to complaints of neglect to maintain, desertion or persistent cruelty, and various orders, such as separation and maintenance orders, are very often made in regard to them. Before the court can satisfactorily deal with these matters it has to find out the cause of the complaint. I discussed this question with some of those whose duty it is to work in the courts, and they tell me that the principal causes of these matrimonal disputes are economic difficulties and sexual maladjustments. Both these matters, particularly the second, are difficult to elucidate. It is not easy to get to the bottom of them. One has to remember also that most of the people appearing before the courts find a good deal of difficulty in stating their cases clearly. In several matters that come up they will be restrained, from one motive or another, in expressing what exactly they have in their minds. Therefore, the need for an efficient and understanding tribunal is very great. This Bill attempts to attain that object in regard to the procedure of the courts, and I think that the House as a whole agrees that it is a very good object. The Government are certainly friendly to it, and therefore they are friendly to the Bill and hope that the House may take the view that it is worthy of a Second Reading. It is not necessary, in view of the general concensus of agreement that we have had on most of the matters in the Bill, for me to go into the Clauses in any great detail, but perhaps I might touch on one or two matters to which hon. Members have given special attention, particularly where they have raised points of doubt. We all agree, on the whole, with Clause 1 recommending that not more than three justices—to include both a man and a woman—should deal with these cases. There applies to this Clause, as indeed to the Bill as a whole, a point I would recommend to the attention of the hon. and learned Member for North Hammersmith (Mr. Pritt), who said that he was supporting the Bill because it was a revolutionary Bill. It is a very peculiar sort of revolutionary Bill, because it is in the main stream of the tradition of British administration and legislation in that what it does is to make general the practices which have been found to be good and which have been adopted by the more thoughtful magistrates. Therefore, if it is revolutionary, it is a very unusual type of revolutionary process. It is one that is essentially in tune with the ordinary processes of the British Constitution. That certainly applies to the provisions in Clause 1. It also applies to the separation of the hearing and determination of these proceedings from the other business. The more one knows about the procedure of the summary courts and the work they have to do, the more essential it appears that this particular class of work should be separated from the other. The hon. Member the Senior Burgess for Cambridge University (Sir J. Withers) said they should always be separated. I can appreciate that point of view, and one would tend to agree with it but for the practical difficulties. In the larger cities and centres of population where there is a great mass of work, the proceedings could be conveniently separated, but in rural areas, where there may be only a little work for the courts, and applications for separation are few and far between, it would not be practicable. The hon. Member for West Middles-brough (Mr. K. Griffith) and the hon. Member for Cambridge University raised a point about the exclusion from the court of those not immediately concerned with the proceedings. At the Home Office we very much appreciate the vital importance of the principle that there should be proper access of outside persons to courts of law, and also the more general principle laid down by, I think, Lord Halsbury that justice should not only be done but should be seen to be done. The arguments in favour of excluding those not immediately concerned, which have been powerfully put by hon. Members, do, we think, make the case strong enough to go as far as we have gone. I would remind hon. Members that the principle is safeguarded even by the number of people who will actually attend court even in these circumstances, such as counsel, officers of the court, newspaper reporters, and a certain number of others. I think that the House will agree with me in welcoming the general statement made by the hon. Member for Sunderland (Mr. Storey) on behalf, no doubt, of the great bulk of the Press. Indeed, it is very satisfactory that a spokesman of the Press should take a view so clearly—May I make it quite clear that they were my personal views, and not in any way put forward officially as the views of the Press as a whole?
I apologise if I attributed too much to the hon. Member, but I think I may be allowed to say that it is satisfactory that a Member of this House who is connected with the Press should take the view which he has taken to-day. He raised certain other points which, I think he will agree, are Committee points and which certainly ought to be carefully considered. There is one point, in Clause 5, which has not been much touched upon to-day concerning the duties of probation officers in regard to advising the court on the question of means to which we at the Home Office attach a great deal of importance. We are advised that these courts find great difficulty in deciding out of hand what should be the right amount to award in particular cases. They may have a certain amount of information upon the wages of the man concerned, but they do not know the situation accurately, do not know all the circumstances, and Clause 5 will enable proper inquiries to be made on which a much juster order can be issued by the court.
We also attach great importance to Clause 6. In these cases the majority of people appear without the assistance of learned barristers, and there is no doubt that they do need assistance in the conduct of their case, and although the hon. and learned Member for North Hammersmith, I will not say for a moment out of any sense of professional jealousy, did not approve of the procedure, I believe the majority of Members in this House would take the view that sympathetic magistrates who are prepared to work this Clause sympathetically on behalf of those who are poor can do a very great deal of good. I will only conclude by saying, as I have said already, that the Government are friendly to this Bill. No doubt a certain number of matters of importance will arise in Committee, and we at the Home Office would like to do our best to assist the hon. Members who have brought in the Bill, and the House, to make it as workmanlike and efficient a Bill as possible.1.38 p.m.
Before the House parts with this Measure I would ask the Under-Secretary to remove a doubt which has arisen in my mind regarding one part of it. In the Explanatory Memorandum it says
That matter is dealt with in Clause 3. I should like to know whether that provision will make it impossible for publicity to be given to cases of ill-treatment of children by guardians, because we sometimes read very horrible cases of that kind, and I think it is an excellent thing that full publicity should be given to those cases. We do not want to allow baby farmers, or persons of that type, to get away, under a provision of this kind, from complete exposure."Provisions are also made for a restriction on the publication of reports of Matrimonial or Guardianship of Infants cases."
I am informed that the ill-treatment of children would be dealt with under the ordinary criminal law, and would not be affected by the Bill.
Question put, and agreed to.
Bill read a Second time, and committed to a Standing Committee.
Medical Practitioners' Communications (Privilege) Bill
Order for Second Reading read.
1.40 p.m.
I beg to move, "That the Bill be now read a Second time."
This is a Bill to provide that certain communications between medical practitioners and their patients shall be privileged from disclosure. The protection which I ask for in this Bill has been rendered more necessary by certain circumstances which have arisen in the past 20 years, and the difficulty really arose or became accentuated with the proceedings of the Royal Commission on Venereal Disease which reported in 1916. I shall crave the indulgence of the House if I read a certain portion of what I have to say, because it deals with a technical subject and textual accuracy is desirable. The Royal Commission of 1916 on venereal disease demonstrated an incidence of that disease in our country so alarming that it became obvious that very energetic measures were necessary to combat it. It was a very influential Commission, and its report is one of the best reports which has ever been written on the subject of venereal disease. They said that energetic measures for combating it were clearly called for. The Local Government Board, which at that time discharged the functions of the present Ministry of Health, took up that recommendation and issued a very important series of Regulations and a Memorandum which was published in 1916, and that Memorandum remains the operative measure in all hospitals and clinics in this country. They were excellent measures, they were carried out very faithfully by hospitals, and the measure of success that has followed has been very remarkable. These Regulations were issued in 1916, and I should like to read what the Memorandum says as regards the reasons why they were issued. It says:That is, in 1916—"The Commission find that the effects of venereal disease upon the individual and upon the race are grave and far reaching, involving a heavy loss to the community in actual and potential population as well as in money. They report that the medical evidence given before them establishes the fact that by early and efficient treatment venereal diseases could be brought under control and reduced within narrow limits, but that at present"—
I wish to draw the attention of the House to the fact that the Commission stressed the importance of secrecy in these arrangements. They said:"treatment is in most cases unduly deferred and the best modern methods of diagnosis and treatment are not within the reach of the population generally. The problem, therefore, is to provide extended facilities, and when these are available to induce persons affected with these diseases to make full use of the facilities at the earliest possible moment. The Commission accordingly recommend that arrangements should be made for providing free for the whole community adequate laboratory facilities of diagnosis, combined with the provision of adequate and skilled free treatment for all persons affected with venereal disease."
And it was further declared in a Regulation issued on the authority of the Local Government Board and confirmed later by the Ministry of Health, as set out in Article 2 of the Regulations, that:"It is important that under no circumstances must the names and addresses of patients be divulged by the medical officers of such institution."
Perhaps I may give the House an idea of what is done at the clinics which are run under that system, and I will take as an example the great hospital with which I am connected. The arrangement there is that there is a special officer detailed for the reception of cases under these rules. He is in charge of what is called the secret register, which contains the names and addresses of all those patients. The patient is seen by this officer and is told that his name and address will be entered in that book for the purposes of communication with him, but not to be revealed, that the nature of his disease will be entirely and absolutely secret, and that in no circumstances whatsoever will it be divulged to any other person without his written consent. No disclosure is made, either to employers, parents, relatives or anyone else. No certificate is given as to the diagnosis. If he wishes for further information he is written to, and the envelopes are sealed and then addressed personally to himself, so that there is no communication with any third party. If anything of a private nature was communicated to the doctor who was in charge of the case, the communication was treated as confidential and absolutely secret. To give some idea of the volume of treatment and the number of patients who have benefited from that system I would give one figure from the last report of the London County Council for the hospitals in London coming under that system. There were over 1,050,000 attendances in one year. If that figure is multiplied by the number of clinics which are distributed throughout the country, the number of cases treated runs into an astronomical figure, and that is the position which is threatened by the present law on the subject. Doctors and patients alike regarded the rules as being a real protection, until a case occurred in which a doctor from one of the clinics was called upon by Mr. Justice Horridge to give to a court information which he had obtained during the treatment of a patient. The doctor objected to giving that evidence, but he was told by the judge that he had no privilege and was obliged to reveal confidences made to him by the patient even under those personal assurances. The incident aroused the interest of the medical profession, and the British Medical Association sent a deputation to the Minister of Health at the time urging him to see that his own Regulations were carried out and that legislation was introduced to arrange that such an incident could not happen again. The Minister of the day made the usual promises, but nothing was done. Another case, more disturbing, occurred in 1927, and as I am basing my plea for the Bill largely upon the circumstances of that case and the comments which were made upon it, I beg to be allowed to give the details. The case related to the V.D. department of one of the great hospitals in Birmingham and was brought before Mr. Justice McCardie. The patient had been attending the clinic, and the pathologist who had made the blood tests in the case was cited and subpoenaed. He pointed out that his own part in the case was a very minor one and that there were other officers who had taken a more important part. He refused to give evidence on his own account or to produce documents, although ordered to do so. Mr. Justice McCardie gave a ruling that, unless the doctor gave evidence forthwith and produced the documents asked for, he would summon the whole of the hospital and all the officers concerned, and all the statements and documents in the case would be produced in court. The effect of that upon a great hospital was so serious that the doctor gave way and gave his evidence under protest. The incident was very striking and produced a great disturbance of public opinion. May I now give the ruling as it was given that so greatly disturbed the medical profession? It is, of course, in consonance with the law of the country, but it is our view that the law requires alteration. Here is the ruling, as it was reported:"all information obtained in regard to any person treated under a scheme approved in pursuit of the regulations must be regarded as confidential, and it is essential for the success of any measures to deal with venereal diseases that patients should be fully assured as to the secrecy of the arrangements."
The doctor was told that in the event of refusal he himself would suffer imprisonment. In the following week, 23rd July, the "Lancet" made this comment:"The medical profession normally was under the duty of keeping inviolate the secret knowledge that they might gain from treat- ing their patients, and, indeed, might become liable to a civil action for damages if. without lawful excuse the duty of confidence was broken; but in a court of law a doctor had no privilege similar to that held by a solicitor or other legal adviser, and he was not privileged from compulsory disclosures of communications, however confidential. A further point arose in the present case as to whether these doctors were in a specially privileged position owing to the fact that they were acting in a department under the control of the Ministry of Health through the local health committee. In his view there was nothing in the regulations, or in any regulation he had heard of, which saved a doctor from the obligation of disclosing, if ordered to do so by the court, all the information he might have of the facts he had gained while acting under regulations."
This was very largely a scheme for poor patients—"New arrangements officially organised have involved the treatment of venereal disease on an unprecedented scale. Simultaneously the law has made new demands for evidence. Recent years have witnessed a huge increase in divorce petitions, partly because of the social unsettlement of the war period, partly because divorce has been made easier for the wife, and partly, indeed mainly, because of the remarkable development of facilities for poor petitioners."—
It pointed out:"To relieve the Law Courts in London matrimonial causes have been made triable locally at assizes with greater local publicity. In so far as this class of litigation gives occasions for medical evidence of venereal disease the occasions have been lately multiplied. Meanwhile another change in the law has enabled a married woman to apply for a separation order on the ground that her husband has insisted on marital relations while knowing himself to be suffering from venereal disease."
The "Lancet" then went on to say:"Here is fresh occasion for inviting a doctor into the witness box and here it is not a case of the patient waiving his or her right to secrecy but of a doctor giving evidence against the legal interests of his patient."
That is the position as it appears to the medical profession. A parliamentary question on the same subject was asked by Dr. Vernon Davies in the same session, and the Minister of Health replied that he would bear the point in mind and give it very careful consideration. The "British Medical Journal" in the following week reviewed the existing position of the doctor under the law and pointed out other instances in which secrecy was important, for example, the notification of stillbirths, a case in which a doctor was called up to reveal the cause of stillbirth and gave evidence under protest. The Journal further pointed out that a doctor could be ordered to produce in court confidential entries on history cards of patients under the National Insurance Act, and it repeated the petition it had made six years earlier for special legislation, which it now suggested should deal not only with venereal clinics but other regulations under which the same or similar questions arise. In 1927 I introduced a Bill under the Ten Minutes' Rule, and on the advice of legal friends in Parliament at the time I restricted the operation of that Bill to venereal diseases. The terms of the present Bill are very much the same without that restriction. Those of my legal friends in the House whom I consulted at that time were very helpful, and no fewer than five of them were good enough to allow their names to appear on the back of the Bill, namely, Mr. Greaves-Lord, Mr. Boyd-Merriman, Mr. Storry Deans, Mr. Goodman Roberts, and Mr. Hopkin Morris. The Bill was commented upon widely in the Press, and I should like to read one or two of the criticisms upon it, to show the state of public opinion in this country at that time. On 14th November, 1927, I addressed a letter to the "Times" in which I stressed the difficulties of the subject, and pointed out that"The second point which is clear is that the Ministry of Health cannot leave matters where they stand. Official utterances proclaim that it is peculiarly necessary to maintain strict professional confidence if venereal disease is to be combated; official regulations exact that secrecy is a legal obligation. All this is meaningless if Judges can insist upon full disclosures. Hitherto many have thought it possible to comprise by way of protest on the part of the medical witness. But if protest is to be treated as mere formality, if a hospital doctor is to be treated as though he were the secretary of a limited company, and is to be compelled to produce confidential docu- ments belonging to other practitioners merely because these documents are within the hospital walls, the public will soon learn to distrust the alleged secrecy which the Ministry of Health professes to ensure. Will the Ministry make it clear by regulation or if necessary by Act of Parliament that the promises of non-disclosure is genuine and inviolable. If not it would be only fair to the patient to qualify the promise and to inform him, when he comes for treatment, that not only can secrecy not be insured but that in the language used to the suspected criminal, anything he may say will be taken down and used in evidence against him."
The "Times" in a leader on the same day, stressed the absurdity"The position by which a doctor may be ordered by a judge to betray the trust of his patient after a solemn promise of secrecy, endorsed by all the authority of a government department, is naturally and properly intolerable by the medical profession, which for some 3,000 years has held professional communications from patients to be the most inviolable of confidences."
I was given leave to introduce that Bill, and, while it was under consideration, some legal comments were made which may perhaps have more weight than medical opinion. On 18th January, 1928, Mr. Justice (now Lord) Atkin, gave an address in which he commented on my Bill, observing that:"that a Department of Government should describe professional secrecy as 'essential for the success of any measures designed to deal with venereal diseases,' while the Government as a whole leave unamended laws which compel the breach of professional secrecy. At the present moment the arrangements so carefully made to safeguard the confidences of patients who present themselves for treatment at the clinics afford no protection whatever against the ruling of a judge. It is easy to understand the feelings of medical men who are compelled to carry on their work in such circumstances, but public action ought to be based on grounds more substantial than the views of any body or class of citizens. The question for the public is whether or not secrecy is really ' essential for the success of any measures designed to deal with venereal diseases.' If secrecy be essential for the success of these measures, then the further question arises whether deliverance from one of the most terrible of human afflictions is or is not worth the sacrifice in certain cases of the evidence of doctors who are engaged in treating it. The communications of clients to their solicitors are privileged, on the ground that justice could not otherwise he done. The cause of health is not, perhaps, inferior to that of justice. If venereal diseases are not treated and cured, they remain a menace to the whole community. Those reasons, therefore, which support the legal may properly be cited in support of the medical privilege."
At the same time I received a letter from Sir Douglas Hogg, now Lord Hailsham, in which, while pointing out the difficulty of differentiating between venereal and other diseases, as was proposed in the Bill, he said that he welcomed the Bill as an opportunity of ventilating the subject. Again, the "Law Journal" on 19th September said that it would welcome the solution of a difficult problem, which would relieve the medical profession without interfering with the due administration of justice. I had no opportunity of reintroducing that Bill, but I obtained a place in the Ballot at the end of last year, and am using that opportunity now to reintroduce a Bill which is a little different, because it is not now confined to venereal disease. I will state my reasons for making it wider. The Bill, without the restriction in question, has been "vetted", if I may use that term, by one of our most eminent judges, and he has assured me that in his opinion its Clauses are adequate to make its abuse highly improbable. There is another consideration which seems to me to be in favour of the wider Measure. The whole purport of our public health administration is to secure the early treatment of disease and sufficient treatment—treatment which is likely to succeed in giving greater protection to the individual and to the public. One instance to which much attention has been drawn quite lately is that of the very difficult problem of the reduction of maternal mortality. An admirable report has been issued by a Scottish Commission on that subject, which stresses the vital importance of ante-natal treatment, and I think there can be no question that any doctor in medical practice will endorse that opinion. It may be pointed out that the highest incidence of maternal mortality undoubtedly occurs in the case of the young unmarried mother. The young unmarried mother is a poor frightened creature, whose circumstances at the moment are very sad, and, if she is not confident that the doctor who treats her can be relied upon to say nothing about her case, the whole scheme for early consultation may become very seriously impaired. The principle embodied in this Bill has also a very wide application to cases under the National Health Insurance Act. It may be said that from the point of view of the administration of justice the wider application suggested in this Bill is not desirable, but surely we can get some impression of the probabilities of the matter by considering the evidence of facts which are well known. It so happens that in 1935 an International Congress was held at Budapest, which was attended by over 1,000 delegates. I was its vice-president, and was the chairman of a special committee appointed by the Congress to deal with the problem of medical practice as affecting the general public. Taking advantage of that opportunity I put down, as one of the measures to be discussed, what degree of protection was accorded to professional secrets in the countries abroad which were there represented, and there were representatives at that conference of every civilised country of Europe and the United States. We had an extremely interesting discussion and it became perfectly obvious that the protection afforded throughout Europe was incomparably greater than the protection accorded in our courts. May I give some of the details? The "professional secret" is absolute in Portugal, Holland, Bulgaria and Switzerland. In Switzerland a curious and interesting development was reported. The medical representative of Switzerland said that the practice had grown in his country of dealing with the difficulty of giving medical certificates when the certificate might disclose confidential facts with regard to the death of the patient. He told us that the practice had grown, and was received with approval, that two certificates should be issued, one to the relations which did not reveal the actual cause of death, and a certificate for the medical officer of health which was filed, and which conveyed this information. That system of double certification was adopted really to avoid what is an absolutely inescapable obligation. In Italy, Hungary, Germany, Norway and France the revealing of the professional secret is a criminal offence punishable by imprisonment or a very heavy fine. I have not been able to ascertain what is the practice in the Oversea Dominions, but I am told that it varies and the professional secret is respected in some and not in others. At the end of the discussion of the subject at the conference the following resolution was unanimously passed:"As the law stood at present a doctor was not privileged to maintain his patients' confidence. The claims of justice on one side had to be weighed against the claims of public health on the other. His Lordship himself was of the opinion that in some cases, notably those connected with venereal disease, the claims of public health far outweighed those of justice. He would be very glad to see some changes in the law, even that very limited alteration proposed in Dr. Graham-Little's Bill. The Courts allowed certain facts to be withheld, for instance these disclosed to a legal adviser were withheld in the interests of justice, and those which con- cerned the State were withheld without any reference to the administration of justice. He failed to see why it might not he just as much to the interest of the State to withhold some facts dealing with the health of the individual as to withhold facts relating to armaments. He recognised the extreme public importance of mutual understanding between lawyers and doctors and familiarity with each others' problems."
I should like to stress the procedure in France; it is very interesting. The legal profession in France, I suppose, enjoys as high a status as in any country in the world. It is entirely favourable to the protection given to the medical profession and it happens that there was a very important meeting called in 1927 of the Academy of Medicine in Paris, the most important medical society in France, to discuss the opinion of the profession at the moment on the existing rules regarding professional secrecy. Professional secrecy has been an absolute obligation in France since a decision was taken in 1885, and the Academy of Medicine was called together to see if there had been any change of opinion in the profession as to the relaxation or not of the rules. Here is what was reported:"That the Congress is of opinion that the confidences of the patient to his doctor should be legally protected except in cases where professional secrecy would conceal crime or shield the criminal from proper punishment."
The report points out that secrecy is not in the interests of doctors at all. It is in the interests of the patient. Here is what the Commission says:"The Commission recommended the Academy to record the most categorical reaffirmation and obligation of professional secrecy which has been the law of France for 40 years following upon a decree of the Court of Cassation in December, 1885. The Commission set up by the Academy of Medicine declared that law and jurisprudence are in accord in France in imposing on the doctor the most absolute reticence whether he be urged by private persons or by private or public bodies or by a court of justice to reveal the nature of the disorders which he may have observed in his patients. Article 378 of the Penal Code of France upon which rests the legal protection of the doctor also provides for his punishment in the case of his revealing the professional secret."
Wide experience abroad makes it improbable, to say the least, that we shall have any serious disorders resulting from the extension of the practice in this country which has been so successful abroad. At present the only alternative when a doctor refuses to give evidence in court is to base his refusal on the citation of medical privilege and to submit to imprisonment if he is forced to accept that course. That is the course recommended now to its members by the great body of professional opinion in this country. In discussing this question a pillar of the Anglican Church said to me lately, "If I were called in court and told to reveal a confidence obtained sub sigillo I should refuse to obey without any hesitation. If I were ordered to go to prison the whole thing would explode at once, because no one would send me there." That is the way in which the law might be altered, but it is more seemly and decent to make the alteration by quiet, orderly, Parliamentary procedure than in response to an explosion of public opinion which may or may not occur, but which is not the best way to reform abuse. What are the arguments that the lawyers use? What appears to me to be the principal argument is that the statement that if a client were not protected by law from disclosure of information he gives to his solicitor under the seal of legal confidence, he would not consult his solicitor. That is a very deplorable result, of course, but the same argument applies to medical confidence with even greater force. The medical confidence is more painful to make and more serious to interfere with than any confidence that he would make to a solicitor. Again, I would ask my legal friends to consider whether it is not really a fact that this attendance at clinics under the regulation I have quoted becomes a very binding contract between the officers of the hospital and the patient. It is so regarded by the officers of the hospital. Is not that a very serious contract and ought a contract of such sanctity and authority to be overruled by considerations other than those of the supreme importance of public policy? Where such cases are concerned I submit that my Bill provides ample safeguard. I have stressed the importance of the professional secret in many spheres of medicine. I have been urged by legal friends again that if I restricted the operation of the Bill to venereal diseases they would have less objection to it, but that restriction is very difficult to justify. If the Bill were restricted to venereal diseases alone the imputation would at once arise when that protection was pleaded in a court of law that the person pleading was, in fact, subject to venereal disease. That makes it a very serious drawback. But there are other cases and an increasing number, not venereal, in which it is equally urgent to get that protection. I say again, that if it is not possible to induce the House to pass the Bill with a wide application, I shall be perfectly prepared in Committee to restrict the operation of the Bill to venereal cases. That course has been suggested to me by a very friendly critic in the House, and if it will facilitate the Bill's progress to Committee, I agree to the suggestion."The report points out that the professional secret is imposed not for the convenience of the doctor but in the interests of the patients, and for the maintenance of public order and the doctor cannot be absolved from his obligation even by the death of his patient."
2.16 p.m.
I beg to second the Motion.
Perhaps it would be well if one stated exactly what the law is at present. The law as laid down in Lord Halsbury's "Laws of England," an entirely reliable book, is this:The law is very decisive and definite. That has been the law for a long time. I tried to find out the earliest occasion on which this question of medical privilege was raised in court of law. The oldest case I could get was a very interesting one, the case of the Duchess of Kingston, who was tried for bigamy before the House of Lords in 1776. A certain surgeon was called upon to give evidence in that case and the record says that he demurred to giving evidence on matters which he had learned professionally in the case. Lord Mansfield, who was probably the greatest judge who ever administered justice in this country, said:"The relationship between a medical practitioner and his patient does not excuse the former, whatever medical etiquette may require, from the obligation, if called upon, to give evidence in a court of law. He is in the same position as any other person who is not specially privileged in this respect by the law. He may be summoned to give evidence in civil or criminal cases, and is liable to imprisonment if he neglects to attend. He may be asked to disclose on oath information which came to him through his professional relationship with a patient; and, if the question is not inadmissible on other grounds, he may be committed to prison if he refuses to answer."
What we want to do is to alter the law so as to enable doctors to refuse to reveal in courts of law secrets which they have learned in their profession. There are already a good many cases in which people coming before courts of law have refused to give evidence. Let me give one or two instances. Husbands and wives in cases of communications during marriage are entitled absolutely to refuse to give any information. Lawyers and clients in cases of communication made for the purpose of obtaining legal advice—there again secrets need not be revealed. Public officers privileged from disclosing facts, the disclosure of which they declare to be not in the public interest—they can refuse to reveal secrets. A witness may refuse to answer a question which may incriminate him, a right which is not infrequently exercised. Attempts have been made to add to the classes that are exempt. There are, for instance, priests of the Catholic and Roman Catholic churches, and ministers. At least in most cases judges have been sympathetic with their desire not to reveal secrets acquired in a professional capacity, but the law is quite definite that a clergyman is not exempt from giving evidence. There have been judges who have expressed sympathy with the desire to refuse to give evidence where the revelation of some professional secret comes in. Mr. Justice Hawkins, in a case in 1896, said:"If a surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour and of great indiscretion, but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever."
It would be very foolish indeed, after the most exhaustive and admirable evidence in support of the Bill given by the Proposer of the Second Reading, for a layman to deal with the matter at length. I shall not do so. I content myself with seconding the Motion. Secrets sometimes leak out in spite of the desire to keep them. I remember the story of a French cleric, I think he was a Cardinal, who was entertaining some of his friends on a certain occasion. In the course of the conversation he said it was a remarkable thing that when he was a young priest the first man who confessed to him confessed to have committed a cruel murder. Just at that moment the door opened, and in walked a distinguished French nobleman, who, as he went up to the cardinal said, "Ah, Cardinal, I can never forget that I was your first patient." Coincidences like that must be very infrequent."I can quite understand a case, especially in a civil case, where a doctor is quite justified in refusing to divulge questions of professional secrecy. The Judge might in some cases refuse to commit a medical man for contempt in refusing to reveal confidences. Every case must be governed by particular circumstances, and the ruling of the Judge will be the test."
2.23 p.m.
I beg to move, to leave out the word "now," and at the end of the Question, to add "upon this day six months."
Those of us who have looked at this Bill find ourselves in a position which is not altogether unusual on a Friday when Private Members' Bills are introduced. We can, of course, sympathise with the objects expressed by the Mover and Seconder of the Motion, but it does seem to me and to some of my friends who have examined the Bill that those who are its sponsors have entirely failed to appreciate what the consequences would be if the Bill were passed into law. The hon. Gentleman, who made a very interesting speech in introducing the Bill, told us about tributes paid to another Bill and an entirely different Bill which he introduced in 1927.Notice taken that 40 Members were not present; House counted; and, 40 Members being present—
As I was saying, we are not dealing now with the Bill which the hon. Gentleman introduced in 1927, but with an entirely different Measure, to which different considerations apply. If we were confined here to the question of venereal disease, to which the hon. Gentleman devoted almost the whole of his speech, there might be something to be said for a proposal of this kind, but, in fact, we are concerned with proposals which go far outside that particular question. The Bill states in very general terms that any information obtained by a duly registered medical practitioner in the course of treatment of any patient shall be regarded as confidential, and shall be privileged from disclosure if it has been obtained for the purpose of a cure. "Information" is a very wide term indeed. Under this Bill a doctor must not give evidence of anything that he has discovered in the course of his treatment for the purpose of a cure, except in respect of two very limited categories dealing with fraud and crime. The first and crucial point of the Bill, which neither the Mover nor the Seconder has attempted to deal with at all, is, whose privilege is it? Who is it that can claim the privilege? We were told that the Bill was designed for the protection of the patient, but it does not say that it is the privilege of the patient, and that he can prevent a doctor giving evidence of something which he does not want to disclose. It appears to me—I shall, no doubt, be corrected by a greater authority if I am wrong—that the privilege might be held to attach not to the patient, but to the doctor. If a man wanted to call his own doctor to give evidence on his behalf, the doctor might be able to refuse, or might even be prevented from giving evidence under the terms of the Bill.
I will suggest to hon. Members one or two examples as to how the Bill would work out in practice, if the interpretation which I have upon it is correct. Take the ordinary motor car accident. A man is knocked down by a motor car in the street. He is taken to a hospital and there treated by a doctor. Later on, he wants to bring an action for negligence, in order to recover damages against the motorist or the insurance company. The first thing he wants is that the doctor who treated him should give evidence as to the injuries he received. If I am right about the interpretation of the Bill, the result would be that he could not require his doctor to give evidence on his behalf in the proceedings. You might have in that case this curious anomaly. When he started the action the insurance company would, of course, send their own doctor to examine him, but that examination would not be for the purpose of treatment or the purpose of cure and, therefore, the insurance company's doctor could give evidence, but the plaintiff would not be able to rely upon his own doctor, even to prove the injuries he received. Take another perfectly simple case which has occurred again and again—the case of food poisoning. Somebody has brought some tinned or other form of food and has suffered some ill effects after eating, it, becoming violently ill. He brings an action for breach of warranty against the person who sold the food. It is essential in such a case to be able to call the doctor who has treated the patient. He has to say that this is a case of food poisoning and that it is what might be expected to follow from eating the particular food in question. Here again, under this Bill, that medical evidence could not he given, and the plaintiff would be denied the remedy which he has at present. One could go on reciting a whole category of cases, workmen's compensation, breach of statutory duty, all forms of actions in which the evidence of the medical man is required, and in all probability it would be impossible to obtain it if this Bill became law. I want to put another consideration to the House. This Bill would make it, if not quite impossible, exceedingly difficult at any time in the future for anyone to bring an action for negligence against a doctor. It is a well-recognised doctrine and has been for many years in our law that, if a man holds himself out to practice a skilled profession whether it be the profession of law or of medicine or any other skilled profession, it implies an undertaking that he will use reasonable care and skill in serving those who consult him. Nobody will object to that doctrine. It is essential for the protection of the public. What will be the position under this Bill, if it becomes law? I know that actions of negligence against doctors are, happily, rare, but they do happen, and even the hon. Gentleman who proposed the Motion for the Second Reading of the Bill would not suggest that it never occurs that a doctor is negligent in treating a patient. If a doctor is negligent, everyone must appreciate that the consequences to the patient may be very serious indeed. A man goes to a doctor, and, let us suppose, he mishandles the treatment. After that, the man leaves his doctor and goes to a second doctor in order to have the mischief put right and a cure affected. He then wishes to bring an action for negligence against the first doctor. If I am right in the interpretation I put upon the words in this Bill, he would not be able to call the second doctor. Anyone who has had anything to do with an action for negligence against a doctor knows how extremely difficult it is at the present time, even if you have a very strong case indeed, to get one doctor to come and give evidence against another.Will the hon. Gentleman explain why he could not call the second doctor? He would have been called in for the purpose of a cure.
Precisely for that reason that he would be debarred from giving evidence under this Bill. There are two possible interpretations under the Bill. The first is, that the doctor would be prohibited from giving evidence at all, and the other, that the doctor could, in any case, refuse to give evidence. Either might happen under this Bill. The applicant in that case, who might have suffered considerable injury from the un-skilful treatment he received, and might have been put, possibly, to great financial loss because he had been incapacitated for some considerable time, would not be able to rely upon the one witness who would be entirely essential to his case.
Take another example. They are not fanciful examples. Although I am not quoting actual cases, these are things which do arise from time to time. Let us suppose that a sick man goes to a doctor and the doctor makes a wrong diagnosis. Such things have been known although, happily, they are rare. The man afterwards dies and his widow wishes to bring proceedings against the doctor for negligence. Her case is that the doctor either knew or should have known what was actually wrong with the man. She discovers that a short time before his death her husband was X-rayed and that a radiologist's report was sent to the doctor, although it was not communicated to the patient. That is a kind of thing that does sometimes arise. The widow brings her action and, obviously, it is of the greatest importance to her, if she is to substantiate her case, that she should be able to see the radiologist's report, but, if I am right in my interpretation of this Bill, because it would be information obtained by the doctor in the course of treatment, and presumably for the purpose of a cure, that communication between the radiologist and the doctor would be privileged and she would not be able to use it.She could call the radiologist.
I do not think she could.
Yes.
The radiologist, who would probably be on the medical register, would be giving treatment of a sort, and for the purpose of a cure.
If it was made clear that it was the privilege of the patient, then the hon. Member's argument falls to the ground.
If it were made clear. That is what I am complaining of. It is not made clear in the Bill. I hope that I have said enough to show that as the Bill stands the consequences would be simply appalling. The reasons advanced by the hon. Member who moved the Second Reading of the Bill were connected chiefly with venereal disease. I can appreciate the force of the argument that in a case of that sort the patient does expect that the information which the doctor acquires shall be confidential and shall not be disclosed to anybody. If the patient thought that disclosure was to be made, and therefore the matter was not to be confidential, he would probably postpone his treatment, or he might not be treated at all. That, I understand is the main case upon which the Bill rests, but I would, with due respect to the hon. Member and also to the Seconder of the Bill, suggest that even in connection with venereal disease there is another side to the question. The issue of venereal disease occasionally arises in the divorce court. It sometimes happens that a wife files a divorce petition against her husband, her case being that during the marriage she has been infected with this disease by her husband. The husband defends the case and says either that it is not true that he infected his wife or else he says that he had no knowledge that he was suffering from the disease at the material time. Either of these defences he is entitled to put forward. If the wife is to prove her case—I do not say in every case but in some cases—it will be essential for her to call the doctor who treated the husband. Even if the Bill were amended in the sense that my hon. Friend opposite suggests, it would still be impossible for the wife to call the doctor who had treated her husband. It is said that if you have the possibility of disclosure on the one side it is a hardship, and I agree with that statement, but in the instance which I have just put forward we have a hardship on one side and a hardship and an injustice on the other.
Would it not be possible in such a case to call the doctor who treated the husband to give evidence of what he himself found in regard to the patient?
That would defeat the whole purpose of the Bill. The whole argument of the hon. Member who moved the Second Reading was that there should be what he called absolute secrecy.
Secrecy between the patient and the doctor; secrecy about what the patient told the doctor, but not what the doctor found out for himself.
The hon. and gallant Member, whose name is on the back of the Bill, ought to have read the Bill. It does not merely apply to communications between the patient and the doctor, but it refers to any information obtained by a duly registered medical practitioner. Therefore, it is clear that there is prohibition of the use of any information which the doctor discovers in the course of treatment. If it were not so the whole case put forward by the Mover of the Bill would fall immediately. We have been told about the necessity for secrecy. How ridiculous it would be for the doctor to be called, and say: "Yes, this man was suffering from this disease, but I found it out for myself and he did not tell me. Therefore, there is no privilege attaching to it."
I do not want to elaborate these points, but I should like to give a similar case another way round. Suppose the wife brings a charge of that kind against the husband and that the charge is in fact without foundation. A case of this sort is actually given in the Law Reports. The husband says that the charge is untrue and that in fact the disease has been communicated to him by his wife. Such cases have occurred. What is going to happen in that case? If the Bill means complete prohibition so that the doctor cannot disclose anything, or if it is true that the doctor, if he thinks fit, can refuse to go to court even at the instance of the husband, it means that the husband cannot call his own doctor who treated him, to give evidence on his behalf. That would be a very great injustice. Here you have a physician, and such cases have arisen, who has treated a man against whom a horrible charge is made, and one which everybody would be most anxious to rebut if it were possible, and it may very well be by the terms of this Bill, if it became law, that man would be prevented from calling the only evidence which could effectively clear him of the charge. I have given these examples of cases which might easily arise. If the hon. Member had confined himself to the actual cases which he had in mind some of us would have taken a very different attitude towards the Bill, but I can only suggest that those who drafted the Bill did not appreciate the effect of what they were doing. If they did appreciate it, it appears to me that it would not merely be a case of righting a wrong, but it would almost amount to conspiracy to defeat the ends of justice. However worthy the motives may be, the House cannot be expected to pass legislation of this kind, and the Bill ought to be rejected.2.44 P.m.
I beg to second the Amendment.
I am sure I am speaking for every Member of the House when I express appreciation of the services rendered to the country by medical men and our sense of indebtedness to them. Therefore, we should not be likely to refuse any privilege which they seek to claim unless there are overriding considerations in the public interest. With that reservation in mind I approach the consideration of the Bill. I think that my hon. Friend who moved it has not taken the best means of seeking to achieve the purpose that he has in mind. When any section of the community claims a privilege it is our duty as representing the community to make sure that the privilege is one which will not interfere with the interests of the community at large. What strikes me in this particular case is that members of the medical profession are claiming a privilege for themselves, not for the general public. If there were a general demand on the part of the public that they should have the right of influencing their own medical adviser that certain things should not be disclosed or given in evidence, it would raise the whole question as to which was the more important, the demands of public justice or the demands of public health, and in any academic consideration of such a question there would be a lot of things to which one would have to give serious consideration. It is not necessary to consider that wider aspect of the matter in connection with this Bill, because it is a Bill which asks for a privilege for the doctor, not for the patient. Not only that it gives to the doctor more rights than his patient would wish to give. We are told that a medical practitioner shall be privileged from disclosing in a court of law information which has been obtained by him in the course of treating a patient. Take the case which has been mentioned—the case of a young unmarried woman who is expecting a child, and who is seriously ill. It may be of great assistance to her and to her medical adviser in treating her that she should declare the man who is the father of her child. Supposing she does that, what is the position of the medical practitioner under the Bill? He can say "I have information as to who is supposed to be the father, but I have the privilege of refusing to tell you who the father is." In other words, a privilege which is being claimed for the medical profession in the interests of the patient may in fact act detrimentally to the interests of the patient. That is possible under the terms of the Bill. The hon. Member who moved the Second Reading used a phrase to the effect that he was concerned with the importance of relieving the anxieties of the medical profession.I said that the medical profession were disturbed.
I do not think I am misquoting the hon. Member. I wrote the expression down because it struck me as an appropriate expression to be used, although rather surprising, by anyone who is supporting the Bill. He said that one of the things which had caused him to promote the Bill was the desirability of relieving the anxieties of the medical profession. Apart from the general principle which the Bill presents for our consideration there are details which, obviously, have not been sufficiently thought out to justify the House in giving it a Second Reading. Assuming that this privilege is given to members of the medical profession, who is to decide whether the particular member of the pro- fession concerned shall claim or waive the privilege? As far as I can see the medical man is to be the judge, not the patient or the court. He is entitled to claim the privilege of refusing to disclose information which he has obtained in the course of curing the patient. It does not matter whether the information is for or against the patient. It is enough for him to say that he claims this privilege. That is also the case in regard to the main question as to whether the information was obtained in the course of providing a cure. Who is to decide that? It is the doctor himself. The patient may be dead and the court cannot decide the matter.
The logical interpretation of the Bill is that as long as any medical man claims he has the privilege of refusing to the court information which has come to him in the course of his examination of the patient, that privilege must be accorded to him. That is putting into the hands of members of the medical profession a privilege to which they are not entitled, and, what is much more serious, imposing upon them a responsibility which I should imagine very few of them would wish to have. It might also involve considerable unfairness to the patient and interfere with the course of justice.2.53 p.m.
I take it that the hon. Member for the Welsh Universities (Mr. E. Evans) would apply the same provisions as obtained in the case of solicitors, that if privilege is claimed it would have to be decided by the court as to whether it was a case of privilege. I feel that the doctors are in a difficult position indeed. I have great sympathy with them, and if the Bill goes to Committee and is dealt with sympathetically, I am sure that this question of privilege, whether it is of the doctor or the patient, could be cleared up.
2.54 p.m.
It may be convenient to the House if I offer a few observations on the Bill which is before the House—not upon some imaginary Bill which is not before the House. I am afraid that I shall have to recommend the House to refuse a Second Reading to this Bill. The prime aim of the law is to secure justice between the State and individuals and justice between individuals and individuals. In order to obtain justice, our courts of law are so constituted that they may be enabled to arrive at the truth. There are one or two cases in which the law does not insist on the best methods of arriving at the truth, and those are cases in which, by custom of law, we say that a privilege exists. It is very difficult to justify a privilege at all, for a privilege by its very nature may involve doing injustice between man and man or between man and the State; but in the time-honoured practice of the law it has been said more than once that there are some cases where greater mischief would probably result from requiring the truth than from permitting the truth to be withheld. Those are the cases—and they are very few—in which the law does not insist that the whole truth should be presented in a court of law.
They are strictly confined; the first class consists of communications between husband and wife, on the fiction that a husband and wife are one person and that complete and absolute confidence should prevail between them upon what communications they have had. Evidence of judges and jurymen as to matters which have taken place while they were acting judicially is another privilege, and an absolute one; it is a privilege which arises from the circumstances in which they obtain their information, namely, that they are actually dispensing justice at the time. A further privilege surrounds State secrets, because the safety of the State is, after all, the supreme law. There are also a few matters on which decency forbids disclosure. Perhaps I need not elaborate that category, but there was a much-contested instance of it in a celebrated divorce case some years ago, in which it was re-laid down, that what transpired in the marriage bed was not matter for discussion, except in very exceptional cases, in a court of law. Lastly, there is the only other case that bears any possible similarity to the case which the hon. Gentleman has put forward, and that is communications between a client and the legal advisers whom he has called in for the purpose of giving legal advice. The justification for that last class of privilege is that the communications are given for the express purpose of obtaining justice in a court of law, and it is the privilege of the client and not that of the solicitor. It is in- formation that is given for one purpose, and one purpose only—in order that a case may be presented before a court of law—and it would be manifestly impossible that communications in these circumstances should, in regard to the very justice that was being sought, be open to public disclosure in court. Those are the limited cases in which, by custom, less than the truth can be told in courts of justice. If anybody attempted to put into statutory form any of those classes of privilege, he would find the task a very difficult one. They are matters concerning which the custom of the law has erected the privilege which I have just described. I think that the promoters of the Bill, when they came to describe what privilege was, found themselves in the same difficulty as I should be in if I attempted to put into statutory form any of the safeguards of justice that I have tried to describe. Let me now turn to the Bill that is before the House. May I say at once that, of course, everybody, looking at the matter academically, must feel a great deal of sympathy with the kind of case that lies at the back of my hon. Friend's mind, that of a patient who suffers from venereal disease. Obviously a claim for sympathy, at any rate, can be made in regard to those cases; but I must ask hon. Members for one moment to look at what the promoters have done in this Bill. I need not be very elaborate, since we have heard an admirable speech from the hon. Gentleman the Member for Dundee (Mr. Foot), and I do not quarrel with most of the instances that he gave of what would occur if this Bill were to become law. In the first instance, there is no definition of what the privilege is. Is it the privilege of the doctor or the privilege of the patient? I am inclined to think that, as the Bill is drawn, it is the privilege of the doctor. There will be some remarkable consequences if this Bill, or anything like it, is passed. For instance, what would happen in criminal courts? Supposing, for example, that a person were found to be dying of assault and that person was seen by a doctor who tried to cure him, and said, "It was so and so who did this to me," there is an absolute privilege under this Bill against the doctor disclosing that information. I do not know even whether the doctor could waive his own privilege. Let me take another case which is unfortunately more common. A doctor in the course of his duties is called in to attend some young woman upon whom an illegal operation has been performed; he discovers unmistakable signs that there has been an illegal operation, and the name of the abortionist who did it is disclosed to him by his patient. The privilege would prevent him if the Bill became law, from doing in that case what the law says is his duty as a citizen, namely, to communicate to the police the knowledge of the crime. Those are two instances. I could go on giving similar instances in all branches of the law. The divorce instance given by the hon. and learned Gentleman the Member for Dundee was a perfectly correct one. Many wives have obtained release from an impossible bondage only because they have been able to find out the doctors who were treating their husbands for illness. They have had no other evidence that they could rely on, and they have obtained justice only because they have found a prescription or something else which showed that their husbands were suffering from venereal disease. Apart from the power of compelling those doctors to give such evidence, they would never be able to obtain justice. Again, take the case of a nullity suit, the case of an unhappy couple one of whom is unable to consummate marriage, and a doctor is in attendance on that patient—should it be impossible, in those circumstances, for the other party ever to obtain redress because the information which that doctor obtains in the course of treating the patient is absolutely privileged against disclosure in a court of law? Workmen's compensation cases and other cases come to my mind. Indeed, I venture to think that I am not overstating the matter when I say that there is hardly any branch of the law, civil or criminal, in which the passage of this Bill in anything like its present form would not impede the administration of justice. I was very interested in the account which the hon. Member for London University (Sir E. Graham-Little) gave of the success with which comparable measures had been attended in other countries. I do not know the details of the legislation in this respect in other countries, and if I may say so I do not think the hon. Gentleman knew them either, but it did not escape my observation that he had discovered, in the course of his inquiries, that in Switzerland where similar legislation existed it was necessary for doctors to make false declarations in order to avoid disobeying the law—in other words, that they had to give false death certificates because if they did not give false death certificates they would be disobeying the law which created the privilege.I said that there are two certificates. One is the official certificate which can be handed into the court. The other is in the nature of an explanation to the relatives of the person concerned and is a different matter.
I understood that, but if there are two certificates and one is different from the other, then one must be false. I do not think I have said anything which the statement about the two certificates did not justify. Of course that is the kind of circumstance that would be bound to arise if a Bill of this kind were passed into law. It has been suggested that there might be a possibility of amending the Bill in Committee so that it would be less harmful to the administration of justice than it is now. I am sorry that I cannot hold out any hopes that any pruning or alteration of the Bill could make it a workable Measure. Any Committee which had to consider the Bill would be faced with some very difficult questions. Why, for instance, should the new privilege which it is proposed to make statutory be confined to doctors? Would not the clergy have a very strong case for their inclusion in a Bill dealing with privileges? The Roman Catholic clergy have claimed for a long time that the secrets of the confessional should be absolutely privileged. Can it be conceived that if this Bill went into Committee there would not be Amendments seeking to extend this absolute privilege to communications that were made, either to Roman Catholic clergy or any other clergy? And, if clergy, why not children? It has been my unfortunate duty, even since I have held my present office, to have had to call as witnesses children of persons who were accused of crimes, in order to see that justice was done. It is an odious task, but it is essential if justice is to be administered. Could not an equally good case be made out for including the children of a person charged with a crime within the ambit of the law of privilege? And if children, why not brothers and sisters?
Once you attempt to put into statutory form the very anomalous restrictions that we have now upon the duty to give evidence in court, you run into so many other anomalies that it is hardly possible to conceive of any Measure of the kind which could be made workable. These are the reasons which impel me to advise the House that this is one of those cases in which, with every sympathy for the intentions of the reformer, one cannot help feeling that the reformer is creating more anomalies than he is attempting to remedy; and, much as one sympathises with his point of view, especially in relation to venereal disease, with which, for the reasons that the hon. Gentleman gave, the Bill does not deal specifically, I am afraid that this is a Bill which I cannot recommend to the House, and which would present so many administrative difficulties, if it were passed, that we cannot possibly contemplate any amendment which would make it a workable Measure.3.11 p.m.
My approach to this Bill was one of great sympathy with its objects, but I saw very great difficulties in giving effect to those objects without creating evils greater than those which it was trying to cure. We all know the great sincerity of the hon. Member for the University of London (Sir E. Graham-Little) and that, in bringing forward this Bill, he was endeavouring, not to protect the interests of the profession with which he is so honourably associated, but that he was thinking of the difficult cases which arise in connection with patients from time to time.
May I, as an example of the difficulties which I think might arise, give particulars of a case that came to my knowledge not long ago? A man was driving a motor car, which crashed into a lamp standard. Various people rushed out, and they found the driver in a condition of faint in the driving seat. By chance, the accident happened outside a doctor's house, and the doctor, an elderly gentleman retired from active practice, was first on the scene. He attended the driver, who was not hurt, but who was for the moment unconscious, and the doctor came to the conclusion that the driver of the vehicle was suffering from an epileptic fit. It is true that the driver had not called the doctor in, because he was unconscious when the doctor arrived. Nevertheless, the doctor treated him, and therefore for this purpose the doctor might claim to be a privileged person. What did the doctor do? He informed the local authority that the man was an epileptic and, in his judgment, ought not to be permitted to drive a motor car. That is one of the disqualifications, I think, and as a result the local authority exercised their powers and withdrew the man's licence to drive. Subsequently, as a result of representations which the driver made on his examination by a number of other doctors, it was decided to restore his licence, and then, a few months later, a similar accident occurred, and his licence has now been taken away for good. It is clear that it was the duty of that doctor to the general public to stop a man who was an epileptic driving a car about the roads, because it was only through good fortune that there was not a very grave accident when he ran into the lamp standard. I take it that the privilege conferred by this Bill would apply in that case and that this man if the Bill had been the law of the land, would have been driving round the country still, a danger to himself and to every other human being in the way; and that, I think, is something which we could not contemplate. Not being as learned in the law as I should like to be, having only taken some part in drafting Bills that lawyers afterwards say are quite unintelligible when they come before the courts, I am not quite clear as to what is meant by this Bill, because in the very first words it says:I am not clear, and I do not think the Solicitor-General was, as to the real significance of those words. Do they mean that a court of law cannot compel a medical practitioner to give evidence, or do they impose on the practitioner the obligation of silence? Obviously, they are very different things. If it merely means that the court cannot extract the information from the witness, then this is going to put a medical practitioner in the very extraordinary position that he is to have free discretion whether he discloses the facts to the court or not. That is a position into which no witness ought to be put. It ought to be an absolute prohibition. As I read it, the medical practitioner would be free to give such evidence as he thought fit and to suppress such evidence as he thought fit. What would be the state of our law if every medical witness were in a position to tell as much of the truth as he thought desirable? It would make the medical evidence irrelevant because you would not know how much of it was important evidence and how much unimportant. Although the medical profession is one of the most honourable in the country, we know only too well that there is a proportion of black sheep in it. What will be the position of the medical man who has not yet come under the notice of the General Medical Council, who is still in practice, but is not practising in a very desirable way? He may be called in to some accident case and become possessed of the vital evidence as to whether an injured person can recover heavy damages from some insurance company. A medical man of that type might go to his client and say, "If I give the right kind of evidence it is worth £2,000 to you; how much it is worth to me?" We are not dealing with the great mass of medical practitioners but from time to time there are proceedings before the General Medical Council, when Mr. So-and-So has to be struck off the roll for infamous conduct. There is a small proportion of such people, and from time to time they will be in a position to blackmail their clients—using the word in a wide sense—because they will be in a position to say, "Unless you promise me a fat fee in excess of the normal fee I will not disclose to the court the facts without which you cannot win your case." That will be an intolerable position for patients to be put into. I can see that from time to time a medical man will be in possession of knowledge about a patient which it would be very disadvantageous to the patient ever to be disclosed. The needs of justice would not require that exposure, and the doctor could say to the judge, "I think that in all the circumstances I do not believe that what I have to say has any effective bearing on the case, and I ask to be relieved from answering that question". I am certain that in most cases, if it is a legitimate reason for making that request, a discreet judge would see that the doctor was not unduly pressed by counsel, particularly if there were some private notification to indicate why it was desirable that the information should not be disclosed. That kind of difficulty can always be overcome, but the medical man will be put into an extraordinary position of difficulty under this Bill for he will have to take the terrible decision whether he is to suppress the truth or not. While I have sympathy with the hon. Member for the University of London, I think that, for the reasons explained by the Solicitor-General, this matter having been well ventilated, the hon. Member might not press the Bill. I have no doubt that those eminent in the law will take notice of the discussion, and, possibly, where the practice has been defective it may be improved as a result of the debate, but I think on balance that my hon. Friend would probably be serving the cause he has so much at heart if he did not ask the House to vote on the Bill."Any information obtained by a duly registered medical practitioner in the course of treatment of any patient shall be regarded as confidential, and shall be privileged from disclosure in a court of law."
Question, "That the word 'now' stand part of the Question," put, and negatived.
Words added.
Main Question, as amended, put, and agreed to.
Second Reading put off for six months.
Should I be in Order in asking leave to withdraw the Bill?
The Bill has already been negatived by the House.
Hotels And Restaurants (Gratuities) Bill
Order for Second Reading read.
3.20 p.m.
I beg to move, "That the Bill be now read a Second time."
This Bill has for its intention the abolition of the system of tipping. I believe it is a matter of ignorance among many people that a large number of those employed in hotels and restaurants receive no wages. Waiters, chambermaids, cloakroom men and porters sometimes receive a nominal 5s. a week, and sometimes nothing at all, and in some cases they even pay for their position. Therefore, when we go to a hotel or restaurant and give a tip we are not handing something to the servants for special services which they have rendered to us but we are, in fact, contributing to wages which in other trades and industries would be paid by the employers. The Hotels and Restaurants Association circulated on 25th November a Memorandum in which they said:The chairman of the executive committee of this Association is Mr. Reeves Smith, the managing director of the Savoy Hotel. A week or so ago, on a regional programme of the British Broadcasting Corporation, he broadcast in opposition to the principles of this Bill, and, as I have said, we are told in the circular that the gratuities given in hotels are a reward for special services or attention. Most of us in this House have been to what is probably the most popular restaurant in London, the Savoy Grill, and all that Mr. Reeves Smith need do to prove this contention of his is to tell us how much the waiters in the Savoy Grill receive every week from the Savoy Hotel."The present practice of giving gratuities is intended to be a reward for special services or attention."
He dare not tell you.
There are three sets of people who are interested in this matter —the public, the owners of hotels and restaurants, and those who are employed in them. So far as the public are concerned I think all of us feel that the tipping system is a nuisance. We frequently do not know how much to give, and are doubtful whether the amount we have given is satisfactory, and that particularly applies to women; and I venture to believe that most of the public would be only too delighted to feel that they could pay their bill without having to think when leaving a hotel or restaurant that they had to give something in the nature of a gratuity to one or even many of the servants. So far as the servants in hotels and restaurants are concerned the system has various effects. It results in irregularity in the amounts they receive each week. Sometimes the tips will be good, sometimes the tips will be poor, and they cannot be assured of taking home a regular sum each week. In the second place, there is great dissatisfaction among the staffs of hotels and restaurants, as it frequently happens that the most deserving individuals of them do not receive a tip. Very often the servant's tip depends on his being in evidence at the moment when the guest is leaving.
Can the hon. Gentleman explain how it is that, in practically all other countries in the world, although 10 per cent. is added to the bill by the proprietor of the restaurant or hotel, the client is still expected to give a tip when he leaves?
I will deal with that point straight away. The reason is that the giving and receiving of tips are not an offence. That is why it is being made an offence under the Bill, both for the giver and receiver. In the third place, the tipping system enables hotel and restaurant proprietors to employ men and women for longer hours than any other trade or industry; the workers are willing to work because of the tipping system.
It is a form of overtime.
Whether the Bill goes through or, on the other hand, is never heard of after to-clay, the tipping system in hotels and restaurants is doomed. It does not follow the trend of the working and the spirit of industry at the present time. A few weeks ago the House passed without dissent a Bill providing for holidays with pay. The servants of hotels and restaurants can never enter into the benefits of that Bill, since where there is no pay there cannot be holidays with pay. Many businesses have developed systems of bonuses and profit-sharing by means of co-partnership schemes, based upon salary or wages received, but as there is no pay, there can be no such schemes for the servants of hotels and restaurants. Very few big companies have not a staff pension fund based upon small payments by the workers and a considerable payment by the employer, to give security to the workers against illness, accident and old age and, so far as the breadwinner is concerned, against his premature death. The schemes are arranged with one of our well-known and reliable insurance companies, and the basis of the benefits is the salary or wages received by the workers. It will be impossible for hotel and restaurant staffs to share in funds of that nature, because they are receiving no pay.
In view of the fact that this place in which we are meeting is outside the law, may I ask the hon. Member whether the Bill would apply to the Dining Rooms of the House of Commons?
Unfortunately, the time left to us to-day is very short, and my hon. Friend is so anxious to get out his one or two points that he is making somewhat irrelevant interruptions. They do not come in the right place. With regard to his question as to the House of Commons, I can at any rate give him an answer so far as the staff art: concerned. It is that the staff would be delighted to see this Bill go through and to find that the House was willing to give them a regular weekly sum all round, and all the year round. My hon. Friend may be quite sure that, if he votes for this Bill, he will not meet any black looks when next he goes into the Dining Room.
With regard to the point that, even if tips are abolished, we shall still be expected, even if a service charge is made on the bill, to give something before we leave, that is not entirely so on the Continent. You can go into many parts of Germany and Italy to-day where you will find that a tip is refused because the penalty of its acceptance has been made so strict. The reason why I have brought forward this Bill to make it an offence so far as both the receiver and the giver of a tip are concerned, is in order to do away with the particular point to which my hon. Friend has referred.Will it be possible to deal with an offence under Clause 1 of the Bill without an expensive system of agents provocateurs or police supervision; and is not that rather an undesirable procedure to adopt?
I hope not. I should think there would be no difficulty in observing people who do this sort of thing. You cannot as a rule give a tip without someone seeing you do it, particularly in a restaurant, and during the Committee Stage I hope the legal learning of my hon. Friend opposite will put us right in regard to this particular point.
If the Bill goes through there are two sets of people who must not be put to any disadvantage thereby. The first are the proprietors of hotels and restaurants, and the second are the people employed therein. They have grown up under this system. It has not been created by them; it has been part of our national system, and therefore, if we abandon it, we must see that they are in no worse a position than before. It can very well be argued, and probably will be argued, by hotel and restaurant proprietors, that, by reason of the fact that they have not been called upon to pay a full weekly wage to those whom they employ, they have charged less to the public than they otherwise would. That may be perfectly true, because hotels and restaurants have to compete with one another in the same way as other trades, and they have doubtless to adjust their prices accordingly.When the hon. Member refers to hotels, does he intend that term to be all-embracing, and to include boarding houses, residential hotels and so on?
At the moment we will leave it at the words that stand in the Bill and allow those who are legal-minded to define it later on, in the same way as in a recent Bill that we passed something was left to the Law Courts to construe. Hotel and restaurant proprietors must be allowed to make up for what they will have to pay in the way of wages and salaries by increased charges to guests or by means of a percentage, on the continental style, on the bill itself. It must be seen that if the proprietors charge a percentage on the bill, that is divided among those who are employed in a fair and adequate way. It is for that reason that my friends and I have asked the Ministry of Labour, although we recognise that it is putting a considerable amount of work upon them, to act, as it were, as arbitrators in the matter. [Interruption.] My hon. Friend laughs, but one knows what a large-hearted man the present Minister of Labour is and I am sure, if he felt that this was something that was for the public good, he would be only too glad to shoulder the burden.
I move the Second Reading of the Bill in order to get rid of a system that is annoying to the public and in order to place those employed in hotels and restaurants in a position to earn a regular wage every week, and to be able to share in all those benefits of holidays with pay, staff pension funds, co-partnership schemes and all the other means that are being adopted now to make those employed in various trades and industries more satisfied with their part in the progress of industry and to promote that good spirit between employers and employed which has made considerable progress since the War.3.39 p.m.
I beg to second the Motion.
My name is on the back of the Bill and it gives me much pleasure to support the Bill from the standpoint of enhancing the dignity of labour. In my view anything that tends to degrade people who are performing a useful and necessary service is to be deprecated. There is no doubt that the practice of tipping is degrading and I should like to see it abolished. If I might be allowed to adapt Shakespeare, I would say that, unlike the quality of mercy, the habit of tipping is twice damned. It lowers him that gives and him that takes. I think we ought to try and treat waiters just as we would treat other people according to the golden rule of doing unto others as we would be done by. My ideal is a race of free and independent and self-respecting Englishmen or Scotsmen or Irishmen or Welshmen. I like to see men with a large measure of self-respect. A man who is performing a useful and necessary service —waiting is a necessary and useful service—ought not to be subjected to the practice or custom which stamps him with the brand of inferiority. There is nothing at all wrong with the job of waiting. It is just as honourable as any other form of employment. I am very glad to see from the statistics of the Ministry of Labur that more and more Englishmen are becoming waiters. I have not any narrow insular views, but if I have to choose as to the kind of person I would have to wait upon me I would rather have an Englishman than a waiter of any other nationality. I submit that while this practice of tipping continues the self-respect of the waiter is bound to suffer, and for that reason you will have a certain reluctance on the part of Englishmen, who have a good deal of self- respect, to go in for this particular job. What is a tip? It is, to use an Americanism, a kind of charitable hand-out.No.
It is, and it puts the service of the waiter on the basis of a sense of inferiority. I am not using too strong language when I say that a man is compelled to prostitute his self-respect for economic considerations. That is not what we want. We want self-respecting people engaged in this particular occupation. We want to encourage service on the basis of mutual self-respect as between the person who is served and the person serving. There is the argument of the Hotels and Restaurants Association against the Bill. They say the percentage system was started in France because it was not customary for waiters there to be paid a wage, whereas in this country it is the custom for wages to be paid. I do not know whether it is a very general custom that wages are paid even in this country, but, if it be so, what sort of wages are paid? You hear all sorts of stories about the waiters in popular restaurants getting a mere pittance by way of wage and being expected to make up their income to some reasonable standard by means of tips. That is not the sort of thing we want to have. It is said that there is no general demand from waiters for this Bill. I wonder what sort of authority there is for that contention. My hon. Friend who moved the Second Reading said that the waiters in this House would be very glad indeed if the system of tipping were abolished and they were assured of a regular wage. I feel certain that that is what most waiters throughout the country feel.
Anyhow, it is not our business to encourage the sort of servility which tipping produces. We want to encourage more and more self-respect, and more and more independence on the part of those who are carrying on the job of waiting. Take it from the standpoint of the person who is being served. How does he feel about tipping? I do not know how hon. Members feel about it, but I always feel a sense of repugnance on giving a tip. There is a sort of embarrassment about it (Laughter). Hon Members laugh. They may ascribe that to some sort of stinginess on my part, but it is not that at all. If one is sensitive one has respect for the feelings of others. I always feel that it spoils the relationship between the waiter and the person who is being served to have to give the waiter a tip. While he is waiting upon you you ought to treat him as a kind of brother, more or less as your equal, but when it comes to the business of giving him a tip you put him into a position of inferiority. That is a very undesirable practice to encourage. It is said by the Hotels Association that, if this is to apply at all, it should apply all round. They understand that it is only to apply to certain hotels and restaurants and that boarding-houses are to get off scot free. That kind of argument is an old device in this house; proposals of all kinds are opposed because they are not comprehensive enough. I admit that this Bill is open to objection on that score, but we have to try and make it practicable, and it would not be practicable to apply it to boardinghouses. But as far as it goes it is a good Measure. I am sure that it is wanted by the people concerned. It will do a good deal towards increasing the self-respect of those who are employed as waiters. It will increase the wages of those engaged in the work, and it will do something which we all want to see done—it will encourage Englishmen, who do not go in very much for this kind of work, to go in for it more and more. For these reasons—and I will not go into others because time is going—I strongly support the Measure, and hope that the House will see that it receives a Second Reading to-day.3.48 p.m.
My hon. Friend who moved the Second Reading of this Bill mentioned that certain establishments pay no wages at all. I think that every Member in this House would condemn any kind of arrangement of that type. I would like the hon. Member to inform us of the names of those establishments. I do not know of any. If tipping lowers the self-respect of waiters, as far as hotels and restaurants are concerned. it lowers the self-respect of taxi-cab drivers, railway porters and of everybody who receives tips. Surely, you are not going to confine the giving of tips to certain employés in certain industries. People have self-respect in every industry and, there- fore, why was not a Bill brought in to cover all systems of tipping, and not just one form of industry covered by hotels and restaurants? I will first deal with the provisions of Clause 1—I do not think that I shall reach Clause 2 or have time to discuss the method as to how wages are to be regulated by the Minister of Labour. I am sure that Members on the front Bench opposite would say that the Minister of Labour has other things to do in the preparation of the Bill which he is going to introduce without being saddled with the work of regulating the wages of those engaged in hotels and restaurants.
Under Clause 1 you have a most amazing proposal. This question of criminal action is confined to those carrying on the normal scope of their duties. Who is going to define the normal scope of duties in hotels? I do not know whether my hon. Friend is aware that certain representatives of hotels go to Southampton and to Waterloo and meet passengers, visitors from other countries, and collect their luggage. Are those to be classed as normal duties? Is every employé in hotels and restaurants to carry a card on his back or in his pocket to show the visitor exactly what are his normal duties? It would be a very difficult matter to define the normal duties of employés in hotels and restaurants. What is a hotel? It is defined as an establishment of not less than six bedrooms. A restaurant is an establishment employing not less than four people. Refreshment bars are excluded from the application of the Bill. Therefore, if I order a cocktail in a refreshment bar, and give the barman 6d. I am committing no crime under the Bill, but if I sit in the lounge of a hotel and I give the waiter 6d. for bringing me a cocktail, I am committing an illegal action. What is the sense of such a proposal? One might stay at a boarding-house which has more than six bedrooms. The hon. Member would have difficulty in convincing the Committee, if the Bill went to Committee, of the difference in type of the accommodation given by a hotel and a boardinghouse. The Bill does not even mention whether the establishment is to be licensed or unlicensed. If it is to be considered wrong to tip in a hotel of more than six bedrooms, and boarding-houses are excluded from the Bill, surely it must be wrong to tip in a boarding-house just as it must be wrong to tip in a hotel. What about refreshment cars? Hon. Members going to their constituencies at the week-end and feeling particularly happy because they have been successful in getting a Measure through the House or in opposing a Measure, might, in their glee, give the waiter 6d., a 1s. or a penny. I mention the three sums to cover every point of view. They would be committing no offence, but if they happened to be in the lounge of a hotel before they caught the train and they were still in the same frame of mind, still in a spirit of hilarity, and gave the same gratuity, they might not catch the train. They would immediately be confronted perhaps by a spy or a public informer who is on the look-out for cases of tipping. Their name and address would have to be taken because they had given the waiter the 6d., the 1s. or whatever the tip might be. Hon. Members must realise the tremendous anomalies that this Bill would introduce. I am sure that the hon. Member who introduced the Bill did so simply because he wanted to bring forward the question of tipping. I suggest that if he wanted to put forward his views on tipping he should have done so in the form of a Motion, not in the form of a Bill. The whole question could then have been raised and we could have debated tipping in the United States, in France, Italy and in Germany, and thus have obtained a bird's-eye view of this terrible and horrible crime of tipping. In France they have a system of adding 10 per cent. on the bill in restaurants and 15 per cent. in hotels, but you tip just the same. I have done it myself, and I am sure that other hon. Members have also done it. I contend that the imposition of a percentage on a bill does not abolish tipping. There is one other point which seems to have been forgotten. Tipping is not compulsory. We are still free agents. We can tip if we want to, or not. Why bring in this Bill? There are certain establishments where tipping 'is prohibited. I do not know why the hon. Member has confined his attention to hotels and restaurants. I contend that the imposition of any kind of percentage on a bill does not do away with tipping. And tipping is not a crime. In France it is not a crime, and I am not suddenly fined £1 for a first offence and £5 for a second offence. What is going to happen if the Bill does become an Act of Parliament?rose in his place, and claimed to move, "That the Question be now put," but Mr. SPEAKER withheld his assent, and declined then to put that question.
If the Bill were an Act of Parliament, hon. Members would not be here listening to the Debate. They would be having lunch, and I presume that if they gave the waiter a tip which he thought was not large enough he would report to the management that they had broken the law by giving him a tip at all. Then along would come an inspector. I do not know whether we are going to have a new army of investigators watching our every movement at table, watching whether you slip a sixpence under the saucer. It is going to be a nightmare when we are dining out or giving a birthday party if we are to be surrounded by a number of spies watching our every movement. The very fact that this army of officials may be there will destroy our appetites and interfere with the full enjoyment of the party.
It being Four of the Clock, the Debate stood adjourned.
Debate to be resumed upon Friday next.
Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.
Adjourned at Four o'Clock until Monday next, 8th February.