§ 9.11 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
My Lords. I beg to move that the Southern Rhodesia (Matrimonial Jurisdiction) Order 1970 be approved. I wish to say a few words in support of the Motion and in explanation of it, notwithstanding that noble Lords who are interested in the matter have had to wait a long time for the item to come on for hearing. The effect of the Motion will be to bring into force on November 16 the Order which 717 was laid before your Lordships' House on October 23.
Despite its technical nature, which I shall endeavour to explain, the underlying object of this Order is quite simple. It enables individuals who in the normal course of events would petition for divorce or nullity of marriage in Southern Rhodesia to seek matrimonial relief in the United Kingdom without having to meet the normal qualifications of domicile or residence, provided, of course, that they have been residing here for the past six months.
It is notorious that almost nothing that touches the Continent of Africa is uncontroversial, but the modest Order now before the House will, I hope and believe, prove to be an exception. It does not affect, and it has been framed so as not to affect, the political issues surrounding the Rhodesian question. It does aim at mitigating hardship caused to certain individuals in this country who are innocent of any part in the political dispute. The Order is, of course, of a general character. But the problem which gives rise to it is well illustrated by the particular case of Mrs. Adams, which brought it to a head; and the decision has been reported. There are other cases to which it will bring relief. I simply give the facts in an individual case by way of illustration.
Mrs. Adams was, and is, an Englishwoman. She is not a Rhodesian. She married an Australian and went to live in Rhodesia where the Australian husband was, and so far as I know is, domiciled. Since he was domiciled in Rhodesia, by private international law, as it is interpreted in the United Kingdom, the Rhodesian courts have in general an exclusive jurisdiction to decide the matrimonial status of husband and wife. Apart from special legislation, therefore, the wife could not, and cannot, be divorced either in Australia or in the United Kingdom. Of course before the unilateral declaration of independence this circumstance would have given rise to no difficulty. Rhodesian divorce would then have been recognised outside Rhodesia, both in Australia and in the United Kingdom.
In the events as they occurred after the marriage, the Australian husband treated the wife badly. He deserted her and committed adultery against her. So 718 she divorced him, or purported to divorce him, in Rhodesia and went back, with her unhappy memories, to live in her own country—which was this country. She now wants to marry again, and I suppose that, unless one holds religious views forbidding completely the dissolution of marriage, there is not a single person who would grudge her the opportunity of doing so.
Unfortunately, it has been decided by the High Court—and in my judgment rightly—that she cannot do so. If she did so she would be committing bigamy. This cruel anomaly which afflicts her is of course no fault of hers: it is the unfortunate, and I would think wholly unintended, result of the unhappy tangle which has taken place as a result of the unilateral açtions taken by Mr. Smith in purporting to declare Rhodesia independent, and of the legislation which we have passed to deal with the situation that resulted.
After the declaration of alleged independence we asked the courts of Rhodesia to continue in operation. That was the act of our predecessors, the previous Government, and this invitation at least met with support in all quarters of, I think, both Houses. We did not intend to disrupt social or family life, least of all for our own citizens. We did not wish to undermine the fabric of law and order. Our quarrel was with the alleged Government and with the illegal Parliament which supported it.
Unfortunately, as matters turned out, the judge who pronounced the Adams divorce in Rhodesia had not been properly appointed. He had been appointed very recently by the illegal authorities and had been dispensed by the illegal Parliament from the oaths of office and allegiance prescribed by the only Constitution we regard as lawful. In law, therefore, as it is recognised here, he was no judge at all, and in consequence the decree of divorce that he purported to pronounce was not an effective decree of divorce. That might have been of less importance had the wife gone on living in Rhodesia. But she had come back here: she had come back to her own country, and now wishes to marry an Englishman. We think that she should be allowed to do so. Since our action, the Rhodesia Order and legislation of 1965, has deprived the 719 Rhodesian decree of validity, we think that the English courts should be given jurisdiction in place of the court from which we have taken the jurisdiction. Unfortunately, Mrs. Adams is not alone in her unhappy position. We think therefore that legislation is the answer.
Her Majesty's Government, therefore, now wish to provide an alternative venue where people in the position of Mrs. Adams can seek matrimonial relief in place of that which, on account of political circumstances, is no longer available to them. This the Order does by conferring on the courts in the United Kingdom jurisdiction to entertain proceedings for divorce or nullity of marriage of a person domiciled or resident in Southern Rhodesia, as if that person had been domiciled or resident within the United Kingdom, provided that the petitioner has first spent a qualifying period of six months' residence in this country before instituting proceedings here.
My Lords, it may be suggested that a simpler course would have been to validate divorce decrees granted in Rhodesia, but unfortunately this is not possible, or not desirable, since it would have awarded a degree of recognition to the acts of the illegal régime. It would thus have injected political controversy into a simple humanitarian measure. We have therefore pursued a different course which does not have that consequence. It must be remembered that this situation is one of the consequences of the illegality of the present régime, and although of course I am aware, as I suppose we all are, that the possible invalidity of other acts of the régime and its officials may also cause certain hardship (the quickest way to resolve these problems would be the restoration of normal relations between the two countries) this is the only legal problem so urgent and so simple that it can be dealt with out of hand in this way.
I feel sure that your Lordships agree that the problem of invalid divorces, and the distress necessarily associated with it, demands our sympathy and support. Indeed, the whole problem of what are called, I believe, "limping marriages" is one which I think ought to be dealt with by the Legislature as and when solutions prove possible. If we approve this Order, 720 those who, as a result of the Adams case, could not get remarried here will be able to bring proceedings—for which, of course, legal aid will be available, if necessary, on the usual basis. Mrs. Adams herself will have to go back to the High Court, to the Probate, Divorce and Admiralty Division, but this time I hope with a reasonable certainty of success. In the present state of the lists she should be free, if I may coin a phrase, within weeks rather than months of the presentation of her petition. My Lords, I beg to move.
§ Moved, That the Southern Rhodesia (Matrimonial Jurisdiction) Order 1970, be approved.—(The Lord Chancellor.)
§ 9.21 p.m.
§ LORD GARDINER
My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for his clear explanation of this Order. The first thing I would say about it is that no Government, of course, could have dealt with this matter until the courts had decided what the law was, because your Lordships know that in this country it is for the courts and not the Executive to decide what the law is. But we have now had this case of Adams v. Adams, and I observe from a report of the judgment of the learned President that he said:Last March Mr. Stewart, then Secretary of State for Foreign and Commonwealth Affairs, stated that the effect of the changes of status on individuals in Southern Rhodesia would fall to be considered by courts in this country.Sir Alec Douglas-Home, the present Secretary of State, had certified for the purposes of the present case that Southern Rhodesia had been and continued to be a colony within Her Majesty's dominions"—I remember being in some trouble with the noble Marquess, Lord Salisbury, when I said that Southern Rhodesia remained a colony—and the United Kingdom Parliament and Government had responsibility for and jurisdiction over it as to the extent provided in section I of the 1965 Act. The British Government did not recognise Southern Rhodesia (or Rhodesia) as a state either de facto or de jure, and had not at any time since November 11, 1965, recognised any persons purporting to be constituting a government there either de facto or de jure".The learned President then dealt with the law, and, he having done so, the report goes on:The only decree purporting to dissolve the marriage was that of April 9 by Mr. Justice Macaulay. Unless it was effective, Mrs. Adams 721 continued to be married to Mr. Adams. His Lordship was compelled to hold that Mr. Justice Macaulay was not a judge de jure of the High Court of Rhodesia".The learned President then dealt with the argument that the decree could be held to be valid as being one by a judge de facto. The report continues:His Lordship held that the doctrine of the validity of the acts of a de facto officer did not entitled him to recognise Mr. Justice Macaulay's decree as valid by the municipal law of Rhodesia".My Lords, that being the legal position, there is undoubted hardship in the most important and personal aspect of anyone's life, and we on this side of the House are not less ready than the Government to see that hardship disposed of so far as possible. I must say clearly that if the Government had taken the alternative course to which the noble and learned Lord the Lord Chancellor referred—namely, of seeking to pass some form of legislation which validated the decree of the court of the illegal régime—we should have opposed it. Apart from anything else, that would have been contrary, of course, to the resolutions of the Security Council of the United Nations, to which we were parties. But this Order does not do that. It merely confers jurisdiction on cur courts to deal with the marriage, and cannot be said in any way to be a recognition of the courts of the illegal régime.
This of course leaves open certain questions. There has yet been no decision as to whether the position would be the same if a decree had been granted by a judge who had been appointed a judge before the date of the illegal declaration of independence but who had since announced that he no longer considers himself to be sitting under the only valid Constitution but under a later and illegal one. Nor does this Order touch adoption or other fields of family life, and there are other possible difficulties; but in view of the hour I do not propose to take up your Lordships' time with them to-night. These difficulties may have to be met, if they can be, at a later date. For those reasons my noble friends offer no objection to the making of this Order.
§ 9.25 p.m.
§ LORD ALPORT
My Lords, I hesitate to intervene in a debate which so far has been graced by the present Lord Chancellor and by an ex-Lord Chancellor; but I should like to put a point which I think is relevant to this particular case. I do not know of any authority which has withdrawn from the judges of the High Court of Rhodesia their de jure jurisdiction in respect of the recognition that their judgments be recognised by the courts in the United Kingdom. It is my impression that all judges who were appointed before U.D.I. by Her Majesty the Queen and who continued afterwards still remain, at law, judges having legal authority in respect of the domestic law in this country where their judgments are made in Rhodesia. If I have put my point obscurely and without technical expertise, I hope that your Lordships will forgive me.
There are five judges in the High Court of Rhodesia at the present moment, the Lord Chief Justice and four puisne judges, who were appointed before U.D.I. It is the practice of the courts of Southern Rhodesia to publish the names of judges sitting on particular days in the High Court and it is open to advocates who are representing petitioners in relation to causes coming before the High Court to request that their cases be heard by a particular judge. In those circumstances, it would have been open for the advocates who represented Mrs. Adams during her divorce proceedings in Rhodesia to ensure that the case was heard by a judge appointed before U.D.I.
The noble and learned Lord, Lord Gardiner, has said that there is no case so far to say whether a judgment by such a judge would have been valid in the United Kingdom courts. But I do not think he would argue that there is a very strong; probability that such a judgment would have been invalid. In fact it may be—though I have no evidence of the fact—that re-marriages have taken place subsequent to judgments of that sort given in the courts of Rhodesia since U.D.I. which are legally recognised in the United Kingdom. In those circumstances, if my argument is correct, 723 Mrs. Adams could have had a valid divorce in Rhodesia.
I do not wish in any way to criticise or to stand in the way of a lady who deserves our sympathy and who wishes now to remarry and to resume a happy life here in the United Kingdom. All I am saying is that I am not sure why Her Majesty's Government have taken this particular case as a first step in ameliorating the hardships which are undoubtedly being inflicted upon a large number of individuals in Rhodesia as a result of sanctions following U.D.I.
My Lords, there are many faithful and loyal individuals in Rhodesia who have done their best to support the cause of Great Britain, supported by previous Governments and the present Government, in trying to ensure that Rhodesia remains part of the association of British countries and in the Commonwealth. Those people have suffered—and far more so, if I may say so—than Mrs. Adams. I know, and have represented to the Government, individual cases that relate to passports, to the financial hardships of elderly people whose funds are blocked here and who perhaps have only a very few years to live and are living in Rhodesia in increasing austerity and difficulty. I do not have anything against helping a particular individual like Mrs. Adams, but if this principle is to be accepted, why does it not apply to other far more deserving cases—people who have made far greater sacrifices on behalf of what they believe to be right and what we believe to be right—than this particular lady? Yet I find the Government hurrying through legislation for a particular case, legislation which in fact is the first part of the amelioration—other than the removal of the surcharge on stamps—of individuals who have suffered hardship.
My Lords, the noble and learned Lord the Lord Chancellor, rightly said that the way out of our present problems over Rhodesia is to find some political solution, and I have no doubt that the Government will try to do so. Those of us interested in this subject will watch carefully the conditions under which the negotiations which have started are carried on. We shall do our best to ensure that there is no departure from the principles which both Governments have 724 laid down as being the prerequisite to any settlement. But we must consider what would be the position if in fact no settlement proves possible. What are the Government then going to do, on the principle of the amelioration of the situation of Mrs. Adams, in respect of other British people in Rhodesia; and, even more, in respect of the African population which has had no part in, or no control whatever over, the existing circumstances, and certainly is not a beneficiary from those circumstances?
I have been greatly tempted, because of the sudden change in the business of your Lordships' House, to put forward ideas on the more general subject which would have been appropriate to the other Order. But I realised, on more mature thought, that this would be against the interests of the House, and certainly against its practice, and so I have no wish to do so. But I want to make the point, with great sincerity and all the force at my disposal, that I think it very peculiar that Her Majesty's Government should take up this particular case as, presumably, the first step towards some amelioration of the impact of sanctions on innocent people, when there are so many other much more important and much more demanding cases which they should have taken up before. However, as I say, I do not want to stand in the way of the passage of this particular Order. I only hope that the Government are doing something which is necessary, though from my reading of the legal situation, and the relation between the Judges of Rhodesia and the High Court here, I do not think that it was really necessary at all.
§ 9.34 p.m.
§ THE LORD CHANCELLOR
My Lords, perhaps I may reply seriatim to the two speeches which have been made, and in, I hope, relatively few words. I am grateful for the general blessing that the noble and learned Lord, Lord Gardiner, gave this Order from the Opposition Front Bench. I must say to him that if there is any vice in the Order I must accept the responsibility of it myself. And if there is any virtue I am entitled to claim some small credit. It seemed to me there was no reason to delay a modest measure to alleviate hardship which arose out of a question of status when a device (I use the word 725 without, I think, and I hope, any pejorative connotation) could be employed to give relief without raising the political questions which were very present in the minds of both the noble and learned Lord and also my noble friend Lord Alport.
I rather suspect that my noble friend Lord Alport made the speech he did because to some extent he was frustrated by the course of events which led to the postponement of the other Rhodesia Order about which, I suspect, he really wished to make his views known. I must tell him that his criticism of this Order is wholly unreasonable. In the first place, made it absolutely plain, in moving the Order, that it does not relate to an individual case, but relates to a limited class of case. I mentioned the case of Mrs. Adams only because the facts of her case were public, and I could dilate upon them without embarrassment to her or to the Government. But I did so solely by way of illustration, and I made that plain. This is not a particular case we are dealing with; it is a group of cases.
Secondly, hardship does not fall on people in Rhodesia at all in this class of case. If a person has been divorced in Rhodesia, the fact that that divorce is not recognised outside Rhodesia is for him no hardship at all because, rightly or wrongly, it is recognised inside his country. The hardship arises when a person who has a Rhodesian "divorce" (I use the word in inverted commas and without prejudice) comes to live somewhere else where it is not recognised and wants to marry again. Then he is faced with the alternative, as in all limited marriages, of committing bigamy in the country where he has come to reside or of living in sin. Personally I think that that is intolerable.
I cannot see why my noble friend Lord Alport sees fit to say that it is unnecessary to deal with it when a perfectly legitimate way of dealing with it is open to the Government.
§ LORD ALPORT
My Lords, I did not say that it is unnecessary, but that there are other ways in which it could be dealt with. The fact that the lady in question has been misled by her advocate in Rhodesia should mean that something has to be put right; but what I said was that there are many other cases of hardship far 726 greater to which the Government should pay attention.
§ THE LORD CHANCELLOR
My Lords, I think that when my noble friend comes to read in Hansard what he actually said he will find that my account of this is more accurate than that which he has just given. In the first place, I think it would have been impossible, in the context of what is happening in Rhodesia, to ask for a particular judge on the precise ground that the other would not have given a decree valid in Great Britain. I think that that is a fatuous suggestion. Secondly, it would have been extremely injudicious of her to do so, from the point of view of English law.
The noble and learned Lord, Lord Gardiner, made it perfectly clear that it has not yet been decided by the courts in this country that a judge who was appointed before U.D.I. but who has now given his adherence to the new Constitution would be delivering a valid decree if he gave a decree of divorce affecting the status of an individual and that individual were then to come to this country or go somewhere else outside Rhodesia. I do not venture to express an opinion, either Aye or No, about that problem because it would have to be decided by the courts, if and when it should arise, and the learned President in the Adams case, though he raised the issue, did not find it necessary to decide it.
All I can tell my noble friend is that there is a formidable number of people who take a view opposite to that which he thought fit to express, and anybody who took his advice on this would be taking the advice of someone who is not qualified to give it. It would be most injudicious to assume that divorces pronounced by judges who have adhered to the illegal régime would be recognised in this country. They may be or they may not be, but if I were in that position I should not like to take the risk, or to assume before a valid decision was made in this country asserting it, that such was the case.
Any form of quarrel between two countries leads to hardship among the persons who reside in either of them. This is common to all disputes of a political character between two nations. Some of it cannot be avoided. Obviously, 727 those which arise from financial regulations and restrictions cannot be avoided. We in the Government want to solve the problem, if we can, but if it is going to be solved, it is going to be solved by political means and not by a legal device one way or the other. This is a problem which affects status and not contract, which can be met by a device which does not involve solving the political issues. I must say that I do take amiss my noble friend's criticism of the Government for alleviating a hardship in a way which can be done without offending anybody at all.
§ On Question, Motion agreed to.