Davis v Johnson [1978] UKHL 1

House of Lords

Between

DavisAppellant

JohnsonRespondent

Before

Lord Diplock Viscount Dilhorne

Lord Kilbrandon

Lord Salmon

Lord Scarman

LORD DIPLOCK VISCOUNT DILHORNE

My Lords,

This appeal is from a judgment of the Court of Appeal which, by a majority of three out of the five members who sat (Lord Denning M.R., Sir George Baker, Pres. and Shaw L.J.; Goff and Cumming-Bruce L.J.J. dissenting) purported to overrule two recent previous decisions of its own as to the meaning of a statute.

Put in a nutshell, the basic question of statutory construction that has given rise to so acute a conflict of judicial opinion is whether section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 does no more than provide additional, expeditious and more easily available remedies to prevent threatened invasions of existing legal rights originating from other sources, whether statutory or at common law, or whether it also, of itself, creates new legal rights as well as new remedies for threatened invasion of them. The former I will call the " narrower ", the latter the " broader " meaning. In B. v. B. on 13th October 1977 the Court of Appeal consisting of Megaw, Bridge, and Waller L.J.J. decided unanimously that it bore the narrower meaning: it gave additional remedies but created no new legal rights. In Cantliff v. Jenkins on 20th October 1977 the Court of Appeal then consisting of Stamp, Orr, and Ormrod L.J.J., while holding itself to be bound by the decision in B. v. B. since it regarded that case as indistin- guishable, took occasion, again unanimously, to express its concurrence with the reasoning of Bridge L.J. in B. v. B. and added, for good measure, an additional reason in support of the narrower meaning placed upon the section in that previous judgment. For my part, I think that Cantliff v. Jenkins was distinguishable from B. v. B. but it is conceded that the facts in the instant case are indistinguishable from those held by the Court of Appeal in Cantliff v. Jenkins to be relevant to its decision in that case. So, when the instant case came before the Court of Appeal, there was a preliminary question which fell to be determined ; and that was whether the Court was bound by its previous decisions in B. v. B. and Cantliff v. Jenkins. The view of a majority of three was that it was not so bound, though their individual reasons for so holding were not identical. This opened the way lo a fresh consideration of the meaning of the statute by all five members. On this question they were divided four to one. Cumming-Bruce L.J. sided with the six Lords Justices who in the two previous cases had adopted the narrower meaning of section 1 ; the remainder were of opinion that it bore the wider meaning and did create new legal rights as well as new remedies for threatened violation of them. So, cf the members of the Court of Appeal who sit regularly in civil matters (of whom there are now seventeen) there were seven who had adopted the narrower meaning of the section, three who, together with the President of the Family Division, had preferred the wider meaning, and a silent minority of seven regular members of the Court of Appeal whose views had not been expressed by the conclusion of the hearing of the instant case in the Court of Appeal.

I draw attention to this arithmetic because if the view expressed by the Master of the Rolls, the President and Lord Justice Shaw that the Court of Appeal was not bound by its own previous decisions is correct, this would apply to its decision in the instant case; and had there been no appeal to your Lordships' House to cut the Gordian knot, it would have been open to the Court of Appeal in any subsequent cases to give effect to the wider or the

narrower construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 according to the preference of the majority of the members who happened to be selected to sit on that particular appeal.

My Lords,

the difference of judicial opinion as to the true construction of the section has spilled over into this House; for although I agree that on the facts of this case it may be that the order of the Court of Appeal could be upheld, and that the actual decision in Cantliff v. Jenkins was wrong, I nevertheless find myself regretfully compelled to part company with the rest of your Lordships and to align myself with the seven Lords Justices who have expressed their preference for the narrower meaning. This cannot affect the disposition of the instant appeal nor will it affect the application of the Act in subsequent cases ; for the section means what a majority of this House declares it means. But it does make the score of appellate opinions in favour of the broader and the narrower meanings eight all.

Although on the question of the construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 this House has not been able to reach unanimity, nevertheless on what in the instant case was the first question for the Court of Appeal, viz. whether it was bound by its own previous decisions, I understand us to be unanimous, so I too will deal with it first.

So far as civil matters are concerned the law upon this question is now clear and unassailable. It has been so for more than thirty years. 1 do not find it necessary to trace the origin and development of the doctrine of stare decisis before the present structure of the courts was created in 1875. In that structure the Court of Appeal in civil actions has always played, save in a few exceptional matters, an intermediate and not a final appellate role. The application of the doctrine of stare decisis to decisions of the Court of Appeal was the subject of close examination by a Court of Appeal composed of six of its eight regular members in Young v. Bristol Aeroplane Co. Ltd.

[1944] KB 718

. The judgment of the Court was delivered by Lord Greene. Its effect is summarised accurately in the headnote as being that:

" The Court of Appeal is bound to follow its own decisions and those " of courts of co-ordinate jurisdiction, and the ' full ' court is in the same " position in this respect as a division of the court consisting of three " members. The only exceptions to this rule are:— (1) The court is " entitled and bound to decide which of two conflicting decisions of its " own it will follow ; (2) the court is bound to refuse to follow a decision " on its own which, though not expressly overruled, cannot, in its opinion, " stand with a decision of the House of Lords ; (3) the court is not " bound to follow a decision of its own if it is satisfied that the decision " was given per incuriam, e.g., where a statute or a rule having statutory " effect which would have affected the decision was not brought to the " attention of the earlier court."

The rule as expounded in the Bristol Aeroplane case was not new in 1944. It had been acted upon on numerous occasions and had, as recently as the previous year, received the express confirmation of this House of Lord Simon L.C. with whose speech Lord Atkin agreed. (See: Perrin v. Morgan [19431 A.C. 399 at 405.) Prior to 1944 there had prior to 1944 been an occasional deviation from the rule, which was why a court of six was brought together to consider it, there has been none since. It has been uniformly acted upon by the Court of Appeal and re-affirmed, notably in a judgment of a Court of Appeal of five, of which Lord Denning as Denning L.J. was a member, in Morelle Ltd. v. Wakeling

[1955] 2 QB 379

. This judgment emphasised the limited scope of the per incuriam exception to the general rule that the Court of Appeal is bound by its own previous decisions. The rule has also been uniformly accepted by this House as being correct. Because until recently it has never been questioned the acceptance of the rule has generally been tacit in the course of recounting the circumstances which have rendered necessary an appeal to your Lordships' House ; but occasionally the rule has been expressly referred to, as by Viscount Simon L.C. in the Bristol Aeroplane case itself (ubi sup at page 169) and by Lord Morton of Henryton and Lord Porter in Bonsor v. Musicians' Union [1956] A.C. 104 at pp. 120, 128.

Furthermore, the provisions of the Administration of Justice Act 1969 which authorise " leap frog " appeals in civil cases direct from the High Court to this House are based on the tacit assumption that the rule as stated in the Bristol Aeroplane case is correct. One of the two grounds on which a High Court judge may authorise a " leap frog " appeal is if he is satisfied that a point of law of general importance involved in his decision:

" (b) is one in respect of which the judge is bound by a decision of the " Court of Appeal or of the House of Lords in previous proceedings, " and was fully considered in the judgments given by the Court of " Appeal or the House of Lords (as the case may be) in those previous " proceedings."

The justification for by-passing the Court of Appeal when the decision by which the judge is bound is one given by the Court of Appeal itself in previous proceedings is because that court also is bound by the decision, if the point of law was fully considered and not passed over per incuriam.

So the rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until, following upon the announcement by Lord Gardiner L.C. in 1966 that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own, Lord Denning M.R. conducted what may be described, I hope without offence, as a one- man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision by the application of the rule laid down in the Bristol Aeroplane case to its own previous decisions ; or, for that matter, by any decisions of this House itself of which the Court of Appeal disapproved. See Broome v. Cassels & Co. Ltd. [1971] 2 Q.B. 354 ; Schorsch Meier G.m.b.H. v. Hennin [1975] Q.B. 416. In his judgment in the instant appeal, the Master of the Rolls refers to a number of cases after 1966 in which he suggests that the Court of Appeal has either refused to apply the rule as laid down in the Bristol Aeroplane case or has added so many other exceptions to the three that were stated by Lord Greene that it no longer operates as a curb on the power of the Court of Appeal to disregard any previous decision of its own which the majority of those members who happen to be selected to sit on a particular appeal think is wrong Such, however, has not been the view of the other two members of the Court of Appeal who were sitting with the Master of the Rolls in any of those cases to which he refers. Where they felt able to disregard a previous decision of the Court of Appeal this was only because, in their opinion, it fell within the first or second exception stated in the Bristol Aeroplane case.

When Miliangos v. Geo. Frank (Textiles) Ltd. [1975] Q.B. 487 was before the Court of Appeal the Master of the Rolls appears to have reluctantly recanted. That was a case in which Bristow J. had held that he was bound by a decision of this House in In re United Railways of Havana, Ltd. and Regla Warehouses, Ltd. [1961] A.C. 1007, despite the fact that the Court of Appeal had purported to overrule it in the Schorsch Meier case. On appeal from his decision the Master of the Rolls disposed of the case by holding that the Court of Appeal was bound by its own previous decision in the Schorsch Meire case. He added: —

" I have myself often said that this court is not absolutely bound " by its own decisions and may depart from them just as the House of " Lords from theirs: but my colleagues have not gone so far. So that " I am in duty bound to defer to their view."

The reasons why his colleagues had not agreed to follow him are plain enough. In an appellate court of last resort a balance must be struck between the need on the one side for the legal certainty resulting from the binding effort of previous decisions, and, on the other side the avoidance of undue restriction on the proper development of the law. In the case of an inter- mediate appellate court, however, the second desideratum can be taken care of by appeal to a superior appellate court, if reasonable means of access to it are available ; while the risk to the first desideratum, legal certainty, if the court is not bound by its own previous decisions grows ever greater

with increasing membership and the number of three-judge divisions in which it sits—as the arithmetic which I have earlier mentioned shows. So the balance does not lie in the same place as in the case of a court of last resort. That is why the Lord Chancellor's announcement about the future attitude towards precedent of the House of Lords in its judicial capacity concluded with the words:

" This announcement is not intended to affect the " use of precedent elsewhere than in this House."

Much has been said in the instant case about the delay and expense which would have been involved if the Court of Appeal had treated itself as bound by its previous decisions in B. v. B. and Cantliff v. Jenkins, so as to make it necessary for the respondent to come to this House to argue that those decisions should be overruled. But a similar reasoning could also be used to justify any High Court or County Court judge in refusing to follow a decision of the Court of Appeal which he thought was wrong. It is true that since the appeal in the instant case was from the County Court, not the High Court, the " leap-frog" procedure was not available, but since it was conceded that the instant case was indistinguishable from Cantliff v. Jenkins, there was no need for anything but the briefest of hearings in the Court of Appeal. The appeal to this House could in that event have been heard before Christmas instead of in January: and at less cost. The decision could have been announced at once and the reasons given later.

Of the various ways in which the Master of the Rolls's colleagues had expressed the reasons for continuing to regard the rule laid down in the Bristol Aeroplane case as salutary in the interest of the administration of justice, I select those given by my noble and learned friend Lord Scarman in Tiverton Estates Ltd. v. Wearwell Ltd. [1975]1 Ch. 146, in the Court of Appeal.

" The Court of Appeal occupies a central, but, save for a few excep- " tions, an intermediate position in our legal system. To a large extent, " the consistency and certainty of the law depend upon it. It sits almost " always in divisions of three: more judges can sit to hear a case, but " their decision enjoys no greater authority than a court composed of " three. If, therefore, throwing aside the restraints of Young v. Bristol " Aeroplane Co. Ltd., one division of the court should refuse to follow " another because it believed the other's decision to be wrong, there " would be a risk of confusion and doubt arising where there should " be consistency and certainty. The appropriate forum for the correc- " tion of the Court of Appeal's errors is the House of Lords, where the " decision will at least have the merit of being final and binding— " subject only to the House's power to review its own decisions. The " House of Lords, as the court of last resort, needs this power of review:

" it does not follow that an intermediate appellate court needs it and, " for the reasons I have given, I believe the Court of Appeal is better " without it, save in the exceptional circumstances specified in Young " v. Bristol Aeroplane Co. Ltd."

My own reason for selecting this passage out of many is because in the following year in Farrell v. Alexander [1976] Q.B. 345 Lord Scarman again referred to it in dissociating himself from the view, to which the Master of the Rolls had by then once again reverted, that the Court of Appeal was not bound by any previous decision of its own that it was satisfied was

wrong. What my noble and learned friend there said was:

" I have immense sympathy with the approach of Lord Denning " M.R. I decline to accept his lead only because I think it damaging " to the law in the long term—though it would undoubtedly do justice " in the present case. To some it will appear that justice is being " denied by a timid, conservative adherence to judicial precedent. They

" would be wrong. Consistency is necessary to certainty one of the

" great objectives of law. The Court of Appeal—at the very centre of " our legal system—is responsible for its stability, its consistency, and " its predictability: see my comments in Tiverton Estates Ltd v Wearwell " Ltd.

[1975] Ch. 146

, 172. The task of law reform, which calls for " wide-ranging techniques of consultation and discussion that cannot

" be compressed into the forensic medium, is for others. The courts " are not to be blamed in a case such as this. If there be blame, it " rests elsewhere."

When Farrell v. Alexander reached this House (

[1977] AC 59

) Lord Scarman's way of putting it was expressly approved by my noble and learned friends Viscount Dilhorne (at p. 81) and Lord Simon of Glaisdale (at p. 92), while the other member of this House who adverted to the question of stare decisis, Lord Russell of Killowen, expressed his " unreserved disapproval" of that part of the Master of the Rolls' judgment in which he persisted in his heterodox views on the subject.

In the instant case Lord Denning M.R. in effect reiterated his opinion that the Court of Appeal in relation to its own previous decisions should adopt the same rule as that which the House of Lords since the announce- ment in 1966 has applied in relation to its previous decisions. The President, on the other hand, preferred to deal with the problem of stare deems by adding a new exception to the rule in the Bristol Aeroplane case which he formulated as follows: —

" The court is not bound to follow a previous decision of its own " if satisfied that that decision was clearly wrong and cannot stand " in the face of the will and intention of Parliament expressed in simple " language in a recent statute passed to remedy a serious mischief or " abuse, and further adherence to the previous decision must lead to " injustice in the particular case and unduly restrict proper development " of the law with injustice to others."

Lord Justice Shaw phrased the exception rather differently. He said:

" It would be in some such terms as that the principle of stare decisis " should be relaxed where its application would have the effect of " depriving actual and potential victims of violence of a vital protection " which an Act of Parliament was plainly designed to afford to them, " especially where, as in the context of domestic violence, that deprivation " must inevitably give rise to an irremediable detriment to such victims " and create in regard to them an injustice irreversible by a later decision " of the House of Lords."

My Lords,

the exception as stated by the President would seem wide enough to cover any previous decision on the construction of a statute which the majority of the court thought was wrong and would have con- sequences that were regrettable, at any rate if they felt sufficiently strongly about it. As stated by Shaw L.J. the exception would appear to be what might be termed a " one-off " exception. It is difficult to think of any other statute to which it would apply.

In my opinion, this House should take this occasion to re-affirm expressly, unequivocably and unanimously that the rule laid down in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal.

I come now to the construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 under which the applicant. Miss Davis, sought an injunction against the respondent, Mr. Johnson, to exclude him from the council flat in Hackney of which they were joint tenants.

The relevant facts can be stated briefly. The parties who were unmarried had been living together there as man and wife for about three years, together with a child of their illicit union, now aged three. He treated her with appalling violence: she was in fear of her life and fled the premises on 18th September 1977 with the child. She found asylum at a refuge for women in her predicament. It was grossly over-crowded, insanitary and uncomfortable. On llth October she applied to the Brentford County Court under section 1 of the Act for injunctions restraining the respondent from using violence towards her and ordering him to vacate the flat and not to return to it. These she was granted initially but after the decision in Cantliff v. Jenkins the injunction excluding the respondent from the flat was withdrawn. Against its withdrawal the instant appeal to the Court of Appeal

was brought, it being conceded that the applicant was entitled to the injunctions against violence.

The section under which Miss Davis's application was made reads as follows: —

" 1._(i) Without prejudice to the jurisdiction of the High Court, on " an application by a party to a marriage a county court shall have " jurisdiction to grant an injunction containing one or more of the follow- " ing provisions, namely:~

" (a) a provision restraining the other party to the marriage from

" molesting the applicant ;

" (b) a provision restraining the other party from molesting a child

" living with the applicant;

" (c) a provision excluding the other party from the matrimonial " home or a part of the matrimonial home or from a specified area " in which the matromonial home is included ;

" (d) a provision requiring the other party to permit the applicant " to enter and remain in the matrimonial home or a part of the " matrimonial home ;

" whether or not any other relief is sought in the proceedings.

" (2) Subsection (1) above shall apply to a man and a woman who " are living with each other in the same household as husband and wife "as it applies to the parties to a marriage and any reference to the " matrimonial home shall be construed accordingly."

I am in agreement with your Lordships that upon the facts that I have summarised the county court judge had jurisdiction to grant an injunction excluding Mr. Johnson temporarily from the flat of which he and Miss Davis were joint tenants. I reach this conclusion notwithstanding that, in disagree- ment with your Lordships, I remain unpersuaded that section 1 (2) bears the broader meaning rather than the narrower one. As my opinion that the narrower meaning is to be preferred will not prevail 1 shall resist the tempta- tion to add to or elaborate upon the reasons given by Bridge L.J. in B. v. B. for that preference. There are, however, two initial matters of more general application to the interpretation of statutes that arise out of the judgment of the Court of Appeal. Upon these I wish to comment.

I have had the advantage of reading what my noble and learned friends Viscount Dilhorne and Lord Scarman have to say about the use of Hansard as an aid to the construction of a statute. 1 agree with them entirely and would add a word of warning against drawing too facile an analogy between proceedings in the parliament of the United Kingdom and those travaux preparatoires which may be looked at by the courts of some of our fellow member states of the European Economic Community to resolve doubts as to the interpretation of national legislation or by the European Court of Justice, and consequently by English courts themselves, to resolve doubts as to the interpretation of Community legislation. Community legislation viz. Regulations and Directives, are required by the Treaty of Rome to state reasons on which they are based, and when submitted to the Council in the form of a proposal by the Commission the practice is for them to be accompanied by an explanatory memorandum by the Commission expanding the reasons which appear in more summary form in the draft Regulation or Directive itself. The explanatory memoranda are published in the Official Journal together with the proposed Regulations or Directives to which they relate. These are true travaux preparatoires; they are of a very different character from what is said in the passion or lethargy of parliamentary debate; yet a survey of the judgments of the European Court of Justice will show how rarely that court refers even to these explanatory memoranda for the purpose of interpreting Community legislation.

A closer analogy with travaux preparatoires is to be found in reports of such bodies as the Law Commissions and committees or commissions appointed by Government or by either House of Parliament to consider

reforming particular branches of the law. Where legislation follows upon a published report of this kind the report may be used as an aid to identify the mischief which the legislation is intended to remedy; but not for the purpose of construing the enacting words in such a way as to conform with recommendations made in the report as to the form the remedy should take. Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A0.G.

[1975] AC 591

. This does not mean, of course, that one must shut one's eyes to the recommendations, for a suggestion as to a remedy may throw light on what the mischief itself is thought to be ; but it does not follow that parliament when it legislates to remedy the mischief has adopted in their entirety or, indeed, at all the remedies recommended in the report.

This is well illustrated in the instant case. The report on which the Domestic Violence and Matrimonial Proceedings Act 1976 was undoubtedly based is the Report of the Select Committee of the House of Commons on Violence in Marriage published in July 1975. It deals almost exclusively with the plight of married women exposed to violence by their husbands and resulting homelessness for themselves and their children. In the single para- graph referring to unmarried couples described (regrettably I think) as " co-habitees", the members of the Committee disclaim any particular knowledge of the problem, on which they had not taken evidence. Never- theless they recommended that so far as the grant of injunctions against violence by their paramours was concerned mistresses should have the same procedural rights as married women. As regards homelessness of mistresses, however, all the Committee recommended was that the Guardianship of Minors Acts should be amended to provide that where there was a child of the illicit union of which paternity could be proved, the court should have power to make orders giving the mistress while she was caring for the children during their minority sole right of occupation of the premises which had been occupied by the unmarried couple as their home. Whatever section 1 (2) of the Act may do it does not do that.

1 conclude by explaining briefly my own reasons for dismissing this appeal. I understand your Lordships to agree in holding, as I myself would hold, that subsection (1) leaves the substantive law relating to husbands and wives unchanged. All that it does is to provide them with a simpler, speedier, more widely available and more effective remedy for threatened violation of legal rights either already existing when the Act was passed or newly- created sections 3 and 4. What I cannot accept is that subsection (2), in contrast to subsection (1), was intended to change the substantive law by authorising county court judges to make drastic inroads upon the respective legal rights of parties to an illicit union to occupy the premises in which they have been living together as man and wife ; yet without any statement in the subsection of the limits, if any, that are imposed upon those inroads. Nevertheless under the existing substantive law a mistress is entitled to pro- tection against the tort of assault, and if, as in the instant case, she is joint tenant with her paramour of the premises in which she has been living with him, she has a legal right to continue in peaceful occupation of them. This latter right of hers is one that he has no right to disturb, and his own corres- ponding right of occupation is one that can be lawfully exercised only in a manner that does not interfere with it. Where the county court judge is satisfied that there is grave danger that if the mistress returns to the premises her paramour will assault her or her child then, as ancillary to an injunction against threatened violence, the judge would, in my view, have jurisdiction to make an order under section 1 (c) excluding him from the premises ; but such an order could properly continue only so long as there was danger that if permitted to return he would assault his mistress or her child.

It is the mistress's legal right under a joint tenancy to continue in occupa- tion of the premises that distinguishes the instant case from B. v. B. The same distinction could have been drawn in Cantliff v. Jenkins, which, for this reason, I think was wrongly decided.

For these reasons I too would dismiss this appeal.

Viscount Dilhorne

-

My Lords,

The result of this appeal depends on the meaning and effect of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976. Its terms must be considered against the background of the Matrimonial Homes Act 1967 which conferred on a spouse not entitled to occupy a dwelling- house by virtue of any estate or interest or contract or enactment, the right, if in occupation, not to be evicted or excluded from it by the other spouse except with the leave of the court, and the right, if not in occupation, with the leave of the court to enter into and occupy it. Section 1(2) of that Act provided that so long as one spounse had rights of occupation, either of the spouses might apply to the court for an order " declaring, enforcing, restrict- " ing or terminating those rights or regulating the exercise by either spouse of the right to occupy the "dwelling-house" and section 1(3) provided that on an application under the section the court might make such order as it thought just and reasonable having regard to the conduct of the spouses toward each other, to their financial resources and the needs of the children.

In Tan v. Tan [1973] A.C. 254 it was held that this section did not give the court power to prohibit, though it gave power to regulate, the occupation of the matrimonial home by a spouse legally entitled to occupy it. Lord Pearson in the course of his opinion, with which the other members of the House agreed, pointed out that if the Act enabled a court to prohibit the occupation by a tenant of his house, it made " a very drastic inroad into " the common law rights of the property-owning spouse". He said, " According to a well-established principle of construction an interpretation " which has this effect ought not to be adopted unless the enactment plainly " bears that meaning. That principle has to be set against the possible " practical advantages of a liberal interpretation which may support its " claims to be the reasonable interpretation. In the end one has to read " the enactment in its context and come to a conclusion as to what it means."

That drastic inroad into the common law rights of property has now been made by the amendment of section 1 (2) of that Act by section 3 of the Domestic Violence and Matrimonial Proceedings Act 1976, which came into force in June 1977. Since then, as a result of the amendments made, a spouse can get an order excluding the other spouse from the matrimonial home even though that spouse is the owner or the tenant of it, and an order requiring that spouse to permit the spouse applying for the order, to enter and to remain in the home.

Section 1 of the Domestic Violence and Matrimonial Proceedings Act has

the marginal note " Matrimonial injunctions in the county court" and sub- section (1) begins with the words "Without prejudice to the jurisdiction of " the High Court " so the jurisdiction of the High Court is not affected. Bridge L.J. in B. v. B. thought that if the section altered the substantive law affecting parties' rights to occupy premises, it would produce the astonishing result that the substantive law in the county court was different from that to be applied in the High Court. So far as spouses are concerned, I do not think that the section in any way extends the substantive law as now, since the amendment of the 1967 Act, applied in the High Court.

It provides that a county court has jurisdiction to grant an injunction containing the following provisions:

" (a) a provision restraining the other party to the marriage from " molesting the applicant;

" (b) a provision restraining the other party from molesting a child living " with the applicant;

" (c) a provision excluding the other party from the matrimonial home " or a part of the matrimonial home or from a specified area in " which the matrimonial home is included ;

" (d) a provision requiring the other party to permit the applicant to " enter and remain in the matrimonial home or a part of the matri- " monial home;

" whether or not any other relief is sought in the proceedings."

Injunctions restraining one spouse from molesting the other are and were obtainable in the Family Division of the High Court and in the county courts designated for divorce work; and, since this Act came into force, there is power under the Matrimonial Homes Act to grant in the High Court an injunction containing the provisions set out in (c) and (d) above against a spouse who is the owner or tenant of the home.

So far as spouses are concerned, the changes made by section 1 are that injunctions containing these provisions are made obtainable in any county court: the requirement in the Family Division that proceedings for divorce or judicial separation must be pending or an undertaking given to start them is dispensed with ; and, in relation to applications for injunctions under the section, the requirement in the county court that in addition to a claim for an injunction, there must be a claim for some other relief is also dispensed with.

Subsection (2) of section 1 provides that subsection (1) shall apply to a man and woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage; and that any reference to the matrimonial home shall be construed accordingly. Their home, despite the fact that they are unmarried, is to be treated as the matrimonial home.

It is in relation to the application of subsection (2) to subsection (1) that difficulty has arisen. Since June 1977, when the 1976 Act came into force, there have been three decisions of the Court of Appeal on it. In the first of them B. v. B. Megaw, Bridge and Waller LJJ. held that subsection (1) did not give a county court power to exclude from a council house a man who was the tenant of it at the instance of the woman with whom he had been living. In the second Cantliff v. Jenkins Stamp, Orr and Ormrod L.JJ. rightly held that they were bound by the decision in B. v. B. but made it clear that if they had not been bound by it they would have reached the same conclusion.

To hear the appeal in the present case a court of five was convened, a court described by the Master of the Rolls as " a court of all the talents ". Its members were Lord Denning, M.R., Sir George Baker, P., Goff, Shaw and Cumming-Bruce L.JJ. Lord Denning, the President and Shaw L.J. did not regard themselves as bound by the previous decisions of the court. They held that an injunction could be granted to an unmarried applicant excluding the man with whom she had been living from the occupation of the premises of which he was with her a joint tenant. Goff L.J. would have joined with them had he not felt bound by the previous decisions ; Cumming- Bruce L.J. agreed with the decisions in the earlier cases.

So seven eminent Lords Justices have come to one conclusion and the Master of the Rolls, the President and two Lords Justices take the opposite view ; and there is a division of opinion in the House. Few, if any, sections of a modern Act can have given rise to so much litigation in so short a time and to such a difference of opinion. A few more words in the Act would have avoided all this litigation and I regard it as surprising, in view of the issue raised in Tarr v. Tarr [1973] A.C. 254, that it was not made clear beyond doubt whether or not a county court was to be enabled by subsection (1) of the Act to grant an injunction excluding a man at the instance of the woman with whom he had been living as if she was his wife from the occupation of a house which he had a legal right to occupy or compelling him to allow her to enter into and remain in the house which he had and she had not a legal right to occupy. The 1976 Act gives the same rights to an unmarried man as it does to an unmarried woman living

in the same household as husband and wife, but as in the majority of cases it will be the woman who invokes the Act, I propose to refer to her only.

It was held in B. v. B. that section 1 made no change in the substantive law. So far as spouses are concerned, as I have said, I agree that is the case. Not having changed the substantive law, it was held that it conferred no rights on an unmarried person coming within subsection (2); so an unmarried woman could only obtain an injunction under subsection 1 (c) or (d) (exclud- ing the man from the home or requiring him to permit her to enter and remain in it) to support a legal right she had apart from the section. In that case Mr. B., the tenant, had an indefeasible right as against Mrs. B. to continue in occupation by virtue of his tenancy and she had no legal right to occupy. In Cantliff v. Jenkins where, as in this case, the unmarried man and woman were joint tenants, Stamp L.J. said that " Put in layman's language, what it" (the section) " does is to confer a remedy to protect a right ".

Violence is a form of molestation but molestation may take place without the threat or use of violence and still be serious and inimical to mental and physical health. Where, as here, violence was used, it was not disputed that an injunction restraining it could be granted. Where other forms of molesta- tion occur, it is probable that if it is of such a character that the court would be disposed to grant an injunction in respect of it, there would be a right of action for nuisance.

If, however, the views expressed in B. v. B., in Cantliff v. Jenkins and by Cumming-Bruce L.J. in the present case are right, it means that an un- married woman, no matter the degree of violence or other molestation threatened or used, will not be entitled to obtain an injunction excluding him from what has been their home or one requiring a man to allow her to enter and remain in it if he is the owner or tenant and she has no legal right to be there. A battered wife can get such injunctions ; a battered mistress to whom subsection (2) applies will not be able to do so unless she has a legal right to be in the home. The vast majority of women to whom subsection (2) is intended to apply will have no such rights and so to interpret the section means that an unmarried woman is not given the same rights as a married one.

An injunction to exclude the man from the premises may be necessary to protect the woman from violence and molestation but I do not see how an injunction requiring him to permit her to enter and remain in the house can be linked with protection from violence or molestation.

Our task is to give effect to the intention of Parliament if that can be seen from the language of the statute. Here the language is clear and unambigu- ous and Parliament's intention apparent. Unmarried persons living together in the same household as husband and wife are for the purposes of section 1 (1) to be treated as if they were married. The unmarried woman to whom subsection (2) applies is to have the same rights as a married woman. A county court judge in the exercise of his discretion can grant an injunction excluding a husband from the home or requiring him to permit her to enter and remain there whether or not she has been subjected to or threatened with violence or molestation. In my opinion subsection (2) entitles him to grant one to an unmarried woman if he would grant it were she married, if the circumstances warrant it and whether or not she has been threatened or molested. Just as a married woman can be protected from eviction from the matrimonial home, so can an unmarried woman coming within subsection (2) be protected from eviction from what has been her home, it may be for a long time. A man who has been living with a woman as his wife in the same household may suddenly tell her to leave and she without violence or molestation may leave and become homeless. He may not say anything but just change the locks on the house when she is out and refuse to admit her. In such cases I do not doubt that it was Parliament's intention to protect her and in my opinion a county court judge now has power to do so.

To hold that protection can only be given if she has property rights is to differentiate between married women and unmarried women to whom sub : section (1) is intended to apply and would in my opinion frustrate the inten- tion of Parliament. Subsection (1) is not concerned with property rights. Injunctions granted under it can interfere with the enjoyment of such rights, as I have said. In this case and in Cantliff v. Jenkins the man and woman were joint tenants but the fact that the woman is a joint tenant in my opinion makes no difference to and does not affect her rights under the subsection. It was not intended to provide a means for the enforcement of property rights but to give protection from domestic violence and from eviction. Reliance should not be placed on it for the enforcement of property rights. If an injunction has been granted under subsection 1 (c) or (d), it is, I think, inconceivable that an order for possession should be made in favour of the man if he is the owner or tenant who has been living with her in the premises as his wife while the injunction is in force.

I recognise that to give effect to that intention, means that an unmarried woman may get an injunction in a county court unobtainable by her in the High Court, an injunction excluding the man from premises of which he is the tenant or owner and to which she has no legal right, and an injunction entitling her to enter into and remain in premises which, if such an injunction is not granted, he or she would have no right to occupy. But it is within the competence of Parliament so to provide and in my opinion Parliament has done so, in clear and unmistakable language. By amending the Matri- monial Homes Act, it has made a drastic inroad into the common law rights of the property owning spouse. By section 1 it has also made a drastic inroad into the exercise of the common law rights of the owner or tenant of the home who has been living there with another person as husband and wife though unmarried.

In Cantliff v. Jenkins Stamp L.J. posed the question: How long would such an injunction last? He thought that as a practical matter it would be equivalent to a transfer of property. With great respect I do not agree. Such an injunction will not affect the legal rights to the home. It will, or may. interfere with the enjoyment of those rights.

As I see it the main purpose of section 1 was to facilitate applications by those for whose benefit it was enacted, for the speedy grant of orders protecting them from molestation and from being immediately evicted from the home in which, it may be, they had lived for many years. In B. v. B. the parties had been living together for 10 years. Its purpose was the provision of imme- diate relief not permanent resolution of the situation arising on the break-up of a marriage or an association where the parties though unmarried had been living as if they were.

It will be within the discretion of the county court judge to decide whether an injunction should be granted and to decide how long it shall operate. It would obviously be terminated should spouses be reconciled. In the case of spouses it might be followed by an application under the Matrimonial Homes Act and it may be that a county court judge in the exercise of his discretion would grant an injunction till further order and would make it clear that it would lapse if no application was made under that Act and if such an application was made, only continued until an order had been made under it.

In the case of unmarried persons where the injunction excludes the party who has property rights from his home or permits the party with no property rights to occupy it, a county court judge might think it right to make it clear that the injunction is to be of a temporary character to enable both parties to regulate their affairs. Jt appears that in this case the council granted the tenancy of the flat on account of the respondent's and her child's housing needs, and that she and the appellant became joint tenants of it at his instance and after she and the child had been living there without him for some three months. If this be so, then the council might have been willing to grant her the tenancy alone and, in view of what has happened, may now

be disposed to terminate the joint tenancy and give her the sole tenancy; and the county court judge may think that the injunction should only continue until the council has dealt with the matter.

Were it not for what my noble and learned friend Lord Diplock has said with regard to the departure from precedent made by the majority of the Court of Appeal in the present case, I would have felt it necessary to write at some length on the question whether the Court of Appeal is entitled not to follow an earlier decision of that Court which is not distinguishable. My noble and learned friend has dealt so fully with that, and I am in such complete agreement with what he has said that it is not necessary for me to do so.

That question was conclusively, and one would have hoped finally, settled by the decision in Young v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718, a court indeed of all the talents consisting as it did of Lord Greene, M.R., Scott, MacKinnon, Luxmoore, Goddard and du Parcq L.JJ.

Since then one new factor has arisen and I wish to add a few observations with regard to that. Prior to 1966 this House treated earlier decisions made by it which were not distinguishable as binding. It was left to Parliament to amend the law laid down by the earlier decisions if in the light of modern conditions it was felt that that decision should no longer be followed. Owing to pressure on Parliamentary time this sometimes led to no action being taken or on its being taken only after long delay.

In 1966 consideration was given to whether as a matter of law this House was bound to follow its earlier decision. After considerable discussion it was agreed that it was not, and so the announcement to which my noble and learned friend refers was made. " If the House of Lords is not bound by " its previous decision, why should we be? " so the argument runs, an argu- ment that could be advanced in every court of record in the land, but an argument which ignores the unique character of the House of Lords sitting judicially. It is a character not possessed by any other court and herein lies the fallacy in the argument. This House is not bound by any previous decision to which it may have come. It can, if it wishes, reach a contrary conclusion. This is so whether or not the House is sitting to discharge its judicial functions. That is the ground on which those who were parties to the announcement made in 1966 felt, I think, that it could be made without impropriety. It is not a ground available to any other court and the fact that this House made that announcement is consequently no argument which can properly be advanced to support the view that the Court of Appeal or any other court has similar liberty of action.

There is one other matter to which I must refer. It is a well and long established rule that counsel cannot refer to Hansard as an aid to the con- struction of a statute. What is said by a Minister or by a member sponsoring a Bill is not a legitimate aid to the interpretation of an Act (Craies on Statute Law, 7th Edn. pp. 128-129). As Lord Reid said in Beswick v Beswick

[1968] AC 58

at p. 73.

" In construing any Act of Parliament we are seeking the intention " of Parliament and it is quite true that we must deduce that intention " from the words of the Act.

" . . . .

" For purely practical reasons we do not permit debates in either " House to be cited: it would add greatly to the time and expense " involved in preparing cases involving the construction of a statute if " counsel were expected to read all the debates in Hansard, and it would " often be impracticable for counsel to get access to at least the older " reports of debates in Select Committees of the House of Commons ; " moreover, in a very large proportion of cases such a search, even if " practicable, would throw no light on the question before the court."

If it was permissible to refer to Hansard, in every case concerning the construction of a statute counsel might regard it as necessary to search

through the Hansards of all the proceedings in each House to see if in the course of them anything relevant to the construction had been said. If it was thought that a particular Hansard had anything relevant in it and the attention of the court was drawn to it, the court might also think it desirable to look at the other Hansards. The result might be that attention was devoted to the interpretation of ministerial and other statements in Parlia- ment at the expense of consideration of the language in which Parliament had thought to express its intention.

While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.

For the reasons I have stated I would dismiss this appeal.

Lord Kilbrandon

My Lords,

It is a sad paradox that human brutality should be disclosed so plainly in domestic relationships into which a man and a woman have voluntarily entered. Recently some enterprising journalist has christened the problem " battered wives ", as if he had uncovered a modern tendency, a recent development in wickedness and indeed the learned Master of the Rolls says that the phrase

" was invented so as to call the attention of the public to an evil. Few " were aware of it."

In many more humble circles the practice was only too familiar, and to anyone who has sat as a divorce judge, at any rate, none of the stories told in the public press can have come as a surprise. They are instances of what had long been matter of common knowledge. In 1975 the House of Commons set up a Select Committee to consider, inter alia,

" the extent, nature and causes of the problems of families where there " is violence between the parties or where children suffer non-accidental " injury."

These words, it is hardly necessary to point out, are wide enough to include families in which the parties are unmarried and the children illegitimate. I did not intend to refer to the Report of the Select Committee further than to say that I agree with the opinion of my noble and learned friend Lord Diplock as to the notice which may in general be taken of such reports in judicial proceedings.

In the following Session a Bill, which became the Domestic Violence and Matrimonial Proceedings Act 1976, was introduced by a private member into the House of Commons. It may be, I do not know, that the matters it dealt with were deemed to be of such urgency that the usual researches, necessary to anticipate and deal with all continuencies likely to attend reform of a complicated branch of the law, were omitted or abridged. How- ever that may be, in the short life-time of the Act the problem now before your Lordships arising out of one of its provisions has had to be considered by 16 Lords Justices and Lords of Appeal, of whom 8 have taken one view of the meaning of the Act and 8 an opposite view.

As regards married couples and their families, sections 3 and 4 make certain provisions amending and clarifying the Matrimonial Homes Act 1967, and need not be further referred to. By sections 1 and 2 the scope of the rights of married persons, on behalf of themselves or their children, to obtain the protection of the court in the event of molestation, violence, or unlawful denial of the right of a spouse, arising from status, to access to and occupation of the matrimonial home, is enlarged. Besides exercising these

rights in a matrimonial suit, or on an undertaking that a matrimonial suit is in preparation, a summary application may be made to any county court for an injunction containing one or more of the provisions set out in section 1, and in certain circumstances the court may, under section 2, buttress that injunction by attaching a power to arrest the party complained of. Such an application may be made, contrary to the general rule of practice,

" whether or not any other relief is sought in the proceedings." So far no difficulty arises.

It is, however, notorious, as the terms of reference of the Select Committee indicate, that the problems of violence, molestation and denial of proper accommodation are by no means confined to families in which the parties are married. Unmarried women and illegitimate children are just as much at risk. It is in my opinion quite plain that the intention of Parliament was to give them some protection. For that purpose section 1(2) provided that the subsection conferring power on the county court to grant injunctions in the case of married persons

" shall apply to a man and a woman who are living with each other in " the same household as husband and wife as it applies to the parties " to a marriage and any reference to the matrimonial home shall be " construed accordingly."

It is unfortunate that this has been described, in popular language, as an attempt to protect " battered mistresses ". The English language is poor in this context. " Mistress ", having lost its respectable if not reverential significance, came to mean a woman installed, in a clandestine way, by some- one of substance, normally married, for his intermittent sexual enjoyment. This class of woman, if indeed she still exists, is not dealt with by the 1976 Act at all. The subsection was included for the protection of families- households in which a man and a woman either do or do not bring up children—the man and the woman being, for whatever reason, unmarried. The Act says in so many words that in such a case the woman is to have a " matrimonial home " in so far as the provisions of sections 1 and 2 of the Act are concerned, and as regards her home she is to have the same protections, and the same power to apply to the county court for them, including an order for arrest, as has her married sister. I do not know a single English word which will accurately describe the unmarried housewife, but that is what Parliament is talking about.

Coming to the interpretation of the Act as it applies to the facts of the instant case, I will begin by saying that I have read in draft the speeches prepared by my noble and learned friends Lord Salmon and Lord Scarman, and that 1 entirely agree with them. The difficulty which has given rise to so much difference of judicial opinion is this. It is plain, as I have tried to point out, that married persons get nothing out of sections 1 and 2 of the Act except, first, access to the summary powers of any county court, second, the relaxation of the rule as to " any other relief", and, third, the supplementary weapon of arrest. No legal rights are conferred, in the sense of causes of action giving rise to judicial remedies. The benefits are described, quite fairly, as procedural. If, then, it is said on behalf of the appellant, no causes of action are made available to married persons, neither are they to the unmarried. Since unmarried persons did not have the relevant statutory protection equivalent to that enjoyed by married persons, namely the right of one to restrain the other from entering the matrimonial home, even when that other is joint or sole tenant, and they cannot be said to have acquired it in virtue merely of an enlargement of available procedures, this application should have been dismissed, since the statute provides the respondent with no means of overriding the property right of the other joint tenant. The supposed protection of unmarried women under this Act accordingly turns out to be largely illusory since it amounts to

no more than procedural advantages available to a woman who has the sole right of occupation, whether as owner or tenant, of what the statute calls her " matrimonial home ". This, in the social conditions with which we are all familiar, must be a rare bird indeed.

I can readily appreciate the intellectual force of the appellant's argument. On the other hand I must decline to hold that Parliament decreed a trifling and illusory remedy for a known disgraceful mischief, and to hold it in the interest of the conceptual purity of the law. Leaving that interest aside, the plain fact is that the 1976 Act has authorised county courts to give one married person an injunction excluding from the matrimonial home the other, saying nothing about the property rights of either, and that that authority applies to a household where the parties are not married to one another " as it applies " to one where they are. That is sufficient for the disposal of this case.

In Inland Revenue Commissioners v. Ayrshire Employers Mutual Insurance Association Ltd. [1946] 1 ALL E.R. 637 it was given as an adequate ground of decision that " The legislature has plainly missed fire "— per Lord Macmillan at p. 641. Whether that metaphor leads to a rational interpretation of statutes may nowadays be doubted, but certainly it would be an inevitable commentary on a decision in favour of the appellant. The intention of the legislature is plain from the language used. The fact that that language also leads to legal difficulties, and that the intention could well have been expressed in language which did not, should not affect the result.

My Lords,

I do not find it necessary to add anything to what has been said by my noble and learned friends on the subjects of the handling of precedents by the Court of Appeal, and of judicial reference to the Parlia- mentary debates. I entirely agree with their opinions.

I would dismiss this appeal.

Lord Salmon

my lords

The Domestic Violence and Matrimonial Proceedings Act 1976 appears to have been hurried through Parliament to provide urgently needed first aid for " battered wives ", about whom there had been a great deal of publicity. They included a lawfully wedded woman living with her husband in their home and also an unmarried woman, commonly but not very appropriately referred to as a " common law wife ", living with her paramour in the equiva- lent of a matrimonial home. I do not consider that there is any ambiguity about the Act and I have no doubt that it will afford much needed first aid to many married and unmarried women. I regret that the Act omits a clause regulating the duration of the aid it affords in relation to the occu- pancy of the matrimonial home by an unmarried woman. Such a clause could easily have removed the difficulties which I think may well arise under the Act in its present form and to which I shall return later. Section 1 of the Act reads as follows :-

" 1.—(1) Without prejudice to the jurisdiction of the High Court, " on an application by a party to a marriage a county court shall have " jurisdiction to grant an injunction containing one or more of the " following provisions, namely—

" (a) a provision restraining the other party to the marriage from " molesting the applicant;

" (b) a provision restraining the other party from molesting a child " living with the applicant;

" (c) a provision excluding the other party from the matrimonial " home or a part of the matrimonial home or from a specified " area in which the matrimonial home is included ;

" (d) a provision requiring the other party to permit the applicant " to enter and remain in the matrimonial home or a part of the " matrimonial home;

" whether or not any other relief is sought in the proceedings. " (2) Subsection (1) above shall apply to a man and a woman who

" are living with each other in the same household as husband and wife

" as it applies to the parties to a marriage and any reference to the

" matrimonial home shall be construed accordingly." I have no doubt that the opening words of section 1(1) " without prejudice " to the jurisdiction of the High Court" refer to two things: firstly to the jurisdiction of the High Court to grant injunctions restraining violence. The word " molesting " in section 1(1) (a) and (b) certainly includes acts and threats of violence. They no doubt cover a multitude of other things which I will not attempt to enumerate. When an injunction is granted under (a) or (b) . it will. I think almost invariably be in respect of acts or threats of violence or possibly sometimes in respect of nuisance. In any event, 1 cannot think of anything in respect of which the county court would grant an injunction under (a) or (b) which the High Court would not also have jurisdiction to grant.

Secondly, the opening words of section 1(1) in my view, also refer to the jurisdiction of the High Court under section 1(2) of the Matrimonial Homes Act 1967 (as amended by sections 3 and 4 of the Act of 1976)(a) to prohibit, suspend or restrict the exercise by either spouse of the right to occupy the matrimonial home or

(b) to require either spouse to permit the exercise by the other of that right. A similar jurisdiction is conferred on the county courts by section 1(1) (c) and (d) of the Act of 1976. It follows therefore that section XI) effected no change in the substantive law relating to husbands and wives. All it did was to enable them to obtain the same kind of redress from the-county court as they could have obtained from the High Court and (having regard to the closing words of section 1(1)) to obtain it without seeking any other relief. If the Family Division makes an order under section 1(2) of the Act of 1967 (as amended) or the county court makes an order under section XI) (c) or (d) of the Act of 1976 prohibiting a spouse, say the husband or paramour, who is the freeholder or tenant of the matri monial home from occupying it and permitting his wife or mistress to do so, that order whilst it remains in force would be a complete answer to an action in the Queen's Bench Division by the freeholder or tenant to enforce his proprietary rights by ejecting his wife so that he may re-enter into possession himself.

In my opinion, it by no means follows that because section 1(1) involves no alteration in substantive law, section 1(2) does not. The latter subsection is very short and equally clear.

It has been said that its meaning is as plain as a pikestaff. I agree. If one were in any doubt about it, it would only be necessary to strike out of section 1(1) the words "on an application by a party to a marriage" and substitute the words " on an application by a man or a woman who are living " with each other in the same household as husband and wife ": and perhaps in order to tidy up the section also to strike out the words " to the marriage " in paragraph (a) of section 1.

The whole purpose of the Act was to afford some protection to " battered " wives ", married or unmarried. And to the unmarried ones in particular. The married already had the very full protection afforded by the Act of 1967. The unmarried did not. The married gained little from the Act of 1976 save a quicker and cheaper method of obtaining protection and also the power of arrest attached to an injunction granted under section 2 of the Act. To my mind, the principal object of section 1(1) (c) and (d) combined with section 1(2) was to allow the battered so called "common law wife " safely to occupy the " matrimonial home " for a fairly short period in which to find other accommodation for herself and her children if she had any.

I do not think that a county court judge could properly exclude the paramour from his home or its environs under section 1(1) (c) unless he had been guilty of serious molestation likely to expose the so called " common law wife or her children" to serious danger or intolerable conditions whilst he remained there. Nor do I think that the county court would or could properly make an order under section 1(1) (d) unless it was satisfied that the common law wife had been driven from the home by serious molestation or locked out of the home without reasonable justification. It also seems unlikely to me that the county court judge would, save in exceptional cases, make an order under section 1(1) (d) without also making an order under section 1(1) (c).

In my view, Parliament in passing this Act, was not concerned with the preservation of proprietary rights but with affording protection to " battered wives " by giving them the chance of finding fresh accommodation in safety when the husband or paramour had made life in the matrimonial home in- tolerable, impossible or dangerous.

More often than not, the man is the tenant or owner of the home. If in the case of an unmarried couple he is immune under section 1 (2) from the provisions of section 1(1) (c) and (d) and under section 2

(2) from the provi- sions of section 2 (1) (c), what I regard as being the chief purpose of the Act will be defeated. This is why I do not think that Parliament intended any wider construction than that which I have already postulated to be put upon the opening words of section 1(1). The wider construction of the opening words of section 1 postulates that they are intended to include a power of the High Court to eject a man's wife or so called " common law wife " from the matrimonial home, if the husband or paramour is the owner or tenant of the premises. I reject that construction because as I have already indicated it would defeat the obvious purpose of the Act. Ample scope, in my view, is given to the opening words of section I if they are confined to the meanings I have suggested

The proposition initiated by Bridge L.J. in B. v. B. and adpoted by many other eminent judges that the wider construction should be put upon those opening words because in cases in which the so called common law wife is the tenant or the owner of the home, she will still have the benefit of section 1 (1) (c) and (d) and of section 2 (1) (c) does not appeal to me—firstly because I think that there are very few women in cases of this kind who are the tenants or owners of the matrimonial home, and secondly because when they are, they have no need to rely on the Act of 1976 for protection. They would be entitled to bring an action for ejectment against the paramour to which there could be no defence.

To return to the case where the paramour is the tenant or owner of the home, I am certain that the Act of 1976 was not intended to deprive him of his proprietary rights in his flat or house but only to interfere for a fairly short period with his occupation of his home whilst his former mistress had an opportunity to look for other accommodation. In Cantliff v. Jenkins, Stamp L.J. asked the very pertinent question " For how long? ". It is a pity that the Act did not regulate the period in which he could be deprived of occupa- tion and his former mistress allowed to enjoy it. I could hope that Parliament will consider amending the Act by specifying such a period or, perhaps better may, laying down principles upon which its duration may be calculated. In the meantime the period is entirely in the discretion of a multitude of county court judges and there being nothing in the statute to guide them in the exercise of that discretion, it might be exercised with a considerable amount of discrepancy. I am sure, however, that those exercising the discretion will understand that to make a final order for a maximum period would probably convert it into a minimum period. I would hesitantly express the view that the best course would be to make an order for say a month with liberty for both parties to apply. Much depends on the circumstances of each case, but I find it difficult to believe that it could ever be fair, save in most excep- tional circumstances, to keep a man out of his own flat or house for more than three months. It must also be remembered that under the Act the former mistress acquires no proprietary right in the premises in question and there

is nothing to prevent the man from selling or letting his own property when- ever he likes. But this would take a little while and would accordingly prevent the former mistress from being thrown out without giving her any breathing space in which to look for suitable accommodation. And "this, I believe, is the major object which the Act sought to achieve- first aid but not intensive care for " battered wives ".

I would add a word about cases in which, as here, the premises in question are held in common. There is no doubt that under the Act a violent man may be excluded for a limited period from the " matrimonial home ". I cannot however agree that his exclusion can properly be made to continue for as long as there is a danger that if he returns he will assault his former mistress. This might well be for ever. I do not think that the purpose of the Act is to punish the violent. Property held in common need not be lived in by both owners: one could buy the other out or the property could be sold and the proceeds divided between them. In the absence of agree- ment the matter could be referred to the courts for decision. In the present case, however, the flat is a council flat and I do not suppose there is any- thing to sell. I expect that probably the council may bring the joint tenancy to an end and decide to whom the flat shall be let. Having regard to the learned county court judge's finding that the appellant who was twice the respondent's age beat her frequently, on two occasions " used violence of a horrifying nature ", threatened to kill her and dump her in the river and alternatively to chop her up with a chopper he kept under the bed and then put her remains in the deep freeze, I should not be surprised if the council after terminating the joint tenancy allowed the respondent to remain in the flat as its sole tenant.

I entirely agree with your Lordships that in appeals in civil cases, the Court of Appeal is bound by its own previous decisions subject to the three excep- tions laid down in Young v. Bristol Aeroplane Co. [1944] 1.K.B.718. Although the balance of authority prior to 1944 supported that rule, there had been a number of dicta and decisions of the Court of Appeal [alluded to by Lord Denning MR.] which had rejected it. That is why the appeal in the Bristol Aeroplane Co. case was heard by Lord Greene M.R. and five out of the eight Lords Justices who then sat regularly in that court.

Ever since 1944, this rule has been applied by the Court of Appeal except in the instant case. Your Lordships' House on a number of occasions [once before and three times after 1944] has confirmed the application of the rule to decisions of the Court of Appeal, and has thereby greatly strengthened the rule. In the nature of things however, the point could never come before your Lordships' House for decision or form part of its ra<tio decidendi. This House decides every case that comes before it according to the law. If, as in the instant case, the Court of Appeal decides an appeal contrary to to one of its previous decisions, this House, much as it may deprecate the Court of Appeal's departure from the rule, will nevertheless dismiss the appeal if it comes to the conclusion that the decision appealed against was right in law.

I am afraid that I disagree with Lord Denning M.R. when he says that the Court of Appeal is not absolutely bound by its own decisions and may depart from them just as your Lordships may depart from yours. As my noble and learned friend Lord Diplock has pointed out, the announcement made in 1966 by Lord Gardiner L.C. about the future attitudes of this House towards precedents ended with the words:

"This announcement is not " intended to affect the use of precedents elsewhere than in this House "

. I would also point out that that announcement was made with the unanimous approval of all the Law Lords: and that, by contrast, the overwhelming majority of the present Lords Justices have expressed the view that the principle of stare decisis still prevails and should continue to prevail in the Court of Appeal. I do not understand how, in these circumstances, it is even arguable that it does not.

I sympathise with the views expressed on this topic by Lord Denning M.R., but until such time, if ever, as all his colleagues in the Court of Appeal agree with those views, stare decisis must still hold the field. I think that this may be no bad thing. There are now as many as seventeen Lords Justices in the Court of Appeal, and I fear that if stare decisis disappears from that court there is a real risk that there might be a plethora of conflicting decisions which would create a state of irremediable confusion and uncertainty in the law. This would do far more harm than the occasional unjust result which stare decisis sometimes produces but which can be remedied by an appeal to your Lordships' House. I recognise, as Cumming-Bruce L.J. points out, that only those who qualify for legal aid or the very rich can afford to bring such an appeal. This difficulty could however be surmounted if when the Court of Appeal gave leave to appeal from a decision it has felt bound to make by an authority with which it disagreed, it had a power conferred on it by Parliament to order the appel- lants and/or the respondents' costs of the appeal to be paid out of public funds. This would be a very rare occurrence and the consequent expendi- ture of public funds would be minimal.

I do not agree with the reasons given by the President for departing from the rule in the Bristol Aeroplane case. A high proportion of the decisions of the Court of Appeal turns upon the construction of statutes. The fact that the decision concerns a recent statute, is to my mind, irrelevant. Shaw L.J.'s decision however is based on the ground that the most exceptional and appalling facts of the present case were never in the contemplation of the Court of Appeal in the Bristol Aeroplane case ; and I confess that I rind the reasons on which he founded his decision very persuasive. I need not however express any opinion upon that judgment for I agree with my noble and learned friend Lord Diplock that the exception formulated by Shaw L.J. is what may be termed a "one off" exception and that it is difficult to think of any other statute to which it could apply. I therefore entirely agree with your Lordships that the rule laid down in the Bristol Aeroplane case binds the Court of Appeal.

I also agree that it has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose. The reasons for this rule have been lucidly expressed by Lord Reid in Beswick v. Beswick

[1968] AC 58

at p. 73, and also by my noble and learned friend Lord Dilhorne in his speech in this appeal.

It is now well settled that when legislation follows upon the report of a Select Committee, as e.g. the Act of 1976 followed upon the report published in 1975 of the Select Committee of the House of Commons on Violence in Marriage, it is permissible for the courts, when necessary, to refer to the report as a guide to the mischief at which the Act was aimed. Even for this purpose, however, such reports are sometimes uncertain guides. The\ do not by any means always reveal the full mischief which the Act is intended to remedy. In the present case for example, the Select Committee devoted only one paragraph to unmarried couples. They stated they had no real knowledge of this problem and had taken no evidence about it. This is of little consequence because, in my view, the Act itself makes the mischief at which it was aimed abundantly plain. It seems to me that either before or as the Bill passed through Parliament, it became clear to our legislators that the battered so called " common law wives " were in dire need of legislative protection. I consider that sections I and 2 of the Act unambiguously gave them this protection to the extent I have described earlier in this speech ; and clearly the meaning of these sections cannot be altered by the report of the Select Committee.

My Lords,

for the reasons I have stated, I would overrule B. v. B. and Cantliff v. Jenkins and dismiss the appeal.

31717 C2

Lord Scarman

My Lords,

The central question in this appeal is as to the construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976. The section is as follows: —

" 1. (1) Without prejudice to the jurisdiction of the High Court, on

"an application by a party to a marriage a county court shall have " jurisdiction to grant an injunction containing one or more of the " following provisions, namely,—

" (a) a provision restraining the other party to the marriage from

" molesting the applicant; " (b) a provision restraining the other party from molesting a child

" living with the applicant;

" (c) a provision excluding the other party from the matrimonial " home or a part of the matrimonial home or from a specified " area in which the matrimonial home is included ; " (d) a provision requiring the other party to permit the applicant " to enter and remain in the matrimonial home or a part of the " matrimonial home ; " whether or not any other relief is sought in the proceedings.

"(2) Subsection (1) above shall apply to a man and a woman who " are living with each other in the same household as husband and " wife as it applies to the parties to a marriage and any reference to " the matrimonial home shall be construed accordingly."

A layman could be forgiven for thinking that the section was tailor-made to enable a county court judge to make the order that was made in this case. But in three cases reaching the Court of Appeal in the last few months seven Lords Justices have taken a different view. They found the section difficult and obscure. In B. v. B. the court (Megaw, Bridge and Waller L.JJ.) accepted the submission that the provisions of section 1 of the Act do not alter in any way the substantive law affecting parties' rights to occupy premises and that, in considering the question whether relief can be granted under the section, the court must consider the respective rights and obligations of the parties unaffected by the provisions of the section. In the result, the court in B. v. B. held that an unmarried woman could not obtain under the section an order excluding from the home the man with whom she was living, unless she could show that she had a right by the law of property to exclusive possession of the premises. In other words, while she could get relief against molestation, as specified in subsection (1) (a) and (b), she could not get an order enabling her to occupy the home under (c) or (d) of the subsection.

In Cantliff v. Jenkins another division in the Court of Appeal followed this decision.

In the present case a specially constituted five-judge bench of the Court of Appeal has by a majority (4 to 1) rejected the interpretation put upon the section by the court in B. v. B. and has held that the full range of relief set out in subsection (1), i.e. orders containing all or any of the relief set out in (a), (b), (c) and (d) of the subsection, is available to an unmarried woman, who can bring herself within subsection 2.

For reasons which I shall briefly outline, I have reached the conclusion that the case of B. v. B, was wrongly decided. In my view the relief specified in (a), (b), (c) and (d) of the subsection is available to an unmarried family partner. I would, therefore, dismiss the appeal.

Jennifer Therese Davis, the respondent in this appeal, is 21 years old and unmarried. She has a daughter who is now nearly 3 years old. The father of her child is Nehemiah Johnson, the appellant. Miss Davis and the appellant lived together in the same household as man and wife for some

years. In 1977 the local council granted them the tenancy of a flat, 13 Nisbet House, Hackney. They were joint tenants. Because of the appellant's violence towards her, Miss Davis left home with her daughter on the 18th September 1977. She went to the Chiswick refuge for battered wives maintained by Mrs. Pizzey. On the 11th October she applied under section 1 of the Act to the Brentford County Court for an order restraining the appellant from assaulting or molesting her, requiring him to vacate the flat, and restraining him from entering it or coming within half a mile of it. On the 18th October the deputy circuit judge granted her an injunction restraining the appellant from assaulting or molesting her or their daughter and requiring him forthwith to vacate the flat and not to return. The judge, being satisfied that the appellant had caused Miss Davis actual bodily harm and being of the opinion that he was likely to do so again, attached, pursuant to section 2 of the Act, a power of arrest to the injunction.

The judge found that the violence and threats of violence, to which Miss Davis had been subjected, were of a horrifying nature. He thought that there was a real risk of further violence in the future and he had regard to the uncomfortable and overcrowded living conditions at the refuge to which she had fled when she left the flat.

This was an order entirely appropriate to the circumstances of the case. More particularly, the exclusion of the appellant from the flat and the prohibition upon his return were necessary to protect Miss Davis and her child in their own home. The only question, therefore, is whether the judge had jurisdiction to include in the injunction provisions excluding the appellant from the flat and prohibiting his return.

The Act is a short one, its substance being contained in four sections. Section 1 enables the county court to grant the injunctive relief specified in subsection (1), irrespective of whether the applicant is married or unmarried. Section 2 enables a court which grants an injunction in matri- monial proceedings or under section 1 to add to it in certain circumstances a power of arrest. Sections 3 and 4 amend the Matrimonial Homes Act 1967 so as to eliminate two weaknesses in that Act revealed by recent judicial decisions. Section 5 declares the short title, commencement and extent of the Act. That is all there is to it.

Section 1 consists of two subsections. Subsection (1) enables a party to a marriage to make application to a county court. It is without prejudice to the jurisdiction of the High Court and it empowers a county court (any county court, whether or not invested with divorce jurisdiction) to grant an injunction " whether or not any other relief is sought ". Clearly the sub- section provides a new remedy additional to, but not in substitution for, what already exists in the law.

Subsection (2) enables an unmarried woman (or man) who is living with a man (or woman) in the same household as husband and wife to apply to the county court under subsection (1) and expressly provides that reference in subsection (1) to the matrimonial home shall be construed as a reference to the household in which they are living together. This reference indicates to my mind that those provisions of subsection (1), which make available to married people an injunction excluding the other party from the matrimonial home and an injunction requiring the other party to permit the applicant to enter and remain in the matrimonial home, are intended to be available also to unmarried partners.

The availability of paragraphs (c) and (d) of subsection (1) to unmarried partners without any express restriction to those who have a property right in the house has an important bearing on the answer to the question which I consider to be crucial to a correct understanding of the scope of the section ; i.e. what is the mischief for which Parliament has provided the remedies specified in subsection (1)? It suggests strongly that the remedies are intended to protect people, not property: for it is highly unlikely that Parliament could have intended by the sidewind of subsection (2) to have

introduced radical changes into the law of property. Nor is it necessary so to construe the section. The personal rights of an unmarried woman living with a man in the same household are very real. She has his licence to be in the home, a right which in appropriate cases the courts can and will protect: see Winter Garden Theatre (London) Ltd. v. Millenium Productions Ltd. [1948] A.C. 173, per Lord Simon at pp. 188-191: Simons v. Evans

[1972] 1 Ch. 359

per Lord Denning M.R. at p. 367 and Tanner v. Tanner

[1975] 3 All ER 776

. She has also her fundamental right to the integrity and safety of her person. And the children living in the same household enjoy the same rights.

Bearing in mind the existence of these rights and the extent to which they are endangered in the event of family breakdown, I conclude that the mischief against which Parliament has legislated by section 1 of the Act may be described in these terms: —conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction—actual, attempted or threatened—is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.

Where, in my opinion, the seven Lords Justices fell into error, is in their inference that because the section is not intended to give unmarried family partners rights which they do not already enjoy under existing property law it cannot be construed as conferring upon the county court the power to restrict or suspend the right of possession of the partner who does have thai right under the property law or to confer for a period a right of occu- pancy which overrides his right of possession. I find nothing illogical or surprising in Parliament legislating to over-ride a property right, if it be thought to be socially necessary. If in the result a partner with no property right who obtains an injunction under paragraph (c) or (d) thereby obtains for the period of the injunction a right of occupation, so be it. It is no more than the continuance by court order of a right which previously she had by consent: and it will endure only for so long as the county court thinks necessary. Moreover, the restriction or suspension for a lime of properly rights is a familiar aspect of much of our social legislation: the Rent Acts are a striking example. So far from being surprised, I would expect Parliament, when dealing with the mischief of domestic violence, to legislate in such a way that property rights would not be allowed to under- mine or diminish the protection being afforded. Accordingly i am unmoved by the arguments which influenced the Court of Appeal in B. v. B. and Cantliff v. Jenkins. Nor do I find it surprising that this jurisdiction was given to the county court but not the High Court. The relief has to be available immediately and cheaply from a local and easily accessible court. Nor am 1 dismayed by the point that the section, while doing no more for married women than strengthen remedies for existing rights, confers upon an unmarried woman protection in her home including a right of occupation which can for a period over-ride the property rights of her family partner.

For these reasons, my conclusion is that section 1 of the Act is concerned to protect not property but human life and limb. But, while the section is not intended to confer, and does not confer upon an unmarried woman property rights in the home, it does enable the county court to suspend or restrict her family partner's property right to possession and to preserve to her a right of occupancy (which owes its origin to her being in the home as his consort and with his consent) for as long as may be thought by the court to be necessary to secure the protection of herself and the children.

How, then does the section fit into the law? First, the purpose of the section is not to create rights but to strengthen remedies. Subsection (2) does, however, confer upon the unmarried woman with no property in the home a new right. Though enjoying no property right to possession of the family home, she can apply to the county court for an order restricting or

suspending for a time her family partner's right to possession of the premises and conferring upon her a limited right of occupancy. In most cases the period of suspension or restriction of his right and of her occupancy will' prove, I expect, to be brief. But in some cases this period may be a lengthy one. The continuance of the order will, however, be a matter for the dis- cretion of the county court judge to be decided in the light of the circum- stances of the particular case.

Secondly, the section is concerned to regulate relations between the two family partners. It does not, for instance, prevent the property owner from disposing of his property. It does not confer upon an unmarried woman any right of occupation of the family home comparable with that which a married woman has and can protect against all the world under the Matrimonial Homes Act 1967.

Thirdly, and most importanly, the grant of the order is in the discretion of the county court judge. It is for him to decide whether, and for how long, it is necessary for the protection of the applicant or her child. Normally he will make the order " until further order ", each party having the right to apply to the court for its discharge or modification. The remedy is avail- able to deal with an emergency ; it is, as my noble and learned friend, Lord Salmon has said, a species of first aid. The order must be discontinued as soon as it is clear, upon the application of either or both family partners, that it is no longer needed.

For these reasons I would dismiss the appeal. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Diplock and Viscount Dilhorne. I agree with what my Lord, Lord Diplock, has said on the principle of " stare decisis " in the Court of Appeal. I also agree with what my Lord, Viscount Dilhorne, has said on the use of Parliamentary material in the interpretation of statutes, and would wish to add only a few observations of my own.

There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretation of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of Parliamentary and ministerial utterances can confuse by its very size. Sec- ondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes.

In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffen- burg A.G.

[1975] AC 591

this House clarified the law on the use by the courts of " travaux preparatoires ". Reports such as are prepared by the Law Commission, by Royal Commissions, law reform bodies and Select Committees of either House which lead to legislation may be read by the courts to identify the mischief, including the weaknesses in the law, which the legislation is intended to remedy or reduce. The difficulty, however, remains that one cannot always be sure, without reference to proceedings in Parlia- ment which is prohibited, that Parliament has assessed the mischief or understood the law in the same way as the reporting body. It may be that, since membership of the European Communities has introduced into our law a style of legislation (regulations having direct effect) which by means of the lengthy recital (or preamble) identifies material to which resort may be had in construing its provisions, Parliament will consider doing likewise in statutes where it would be appropriate, e.g. those based on a report by the Law Commission, a Royal Commission, a departmental committee, or other law reform body.

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