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Cite as: [1978] 2 WLR 553, [1978] UKHL 1, [1979] AC 264

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Die Jovis, 9° Martii 1978

    Parliamentary Archives,
    HL/PO/JU/4/3/1326


    HOUSE OF LORDS

    DAVIS (RESPONDENT) (A.P.)

    v.

    JOHNSON (A.P.) (APPELLANT)

    Lord Diplock
    Viscount Dilhorne
    Lord Kilbrandon
    Lord Salmon
    Lord Scarman

    Lord Diplock

    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

    2

    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.

    3

    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

    4

    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

    5

    " 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

    6

    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

    7

    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.

    8

    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 ;

    9

    " (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

    10

    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.

    11

    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

    12

    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

    13

    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


    14

    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

    15

    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 ;


    16

    " (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.

    17

    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

    18

    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.

    19

    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


    20

    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

    21

    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


    22

    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

    23

    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.

    Printed in England by Her Majesty's Stationery Office at St Stephen's Parliamentary Press
    31717 Dd 353191 220 3/78


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