HOUSE OF LORDS

 

DAVIS, RESPONDENT

AND

JOHNSON, APPELLANT

 

Annotated Law Reports version at: [1979] A.C. 264

 

 

COUNSEL: James Comyn Q.C. and Judith Parker for the applicant.

Joseph Jackson Q.C. and David McIntyre for the respondent.

 

SOLICITORS: Rose & Birn; Darlington & Parkinson.

 

JUDGES: Lord Denning M.R., Sir George Baker P., Goff, Shaw and Cumming-Bruce L.JJ.

Lord Diplock, Viscount Dilhorne, Lord Kilbrandon, Lord Salmon and Lord Scarman

 

DATES: 1977 Nov. 17, 18, 21; 28

 

1978 Jan. 16, 17; March 9

 

 

Appeal from the Court of Appeal by the appellant, Nehemiah Johnson (respondent in the Court of Appeal), from an order dated November 28, 1977, of the Court of Appeal (Lord Denning M.R., Sir George Baker P. and Shaw L.J.; Goff and Cumming-Bruce L.JJ., dissenting) allowing an appeal by the respondent, (applicant in the Court of Appeal) Jennifer Therese Davis, from an order dated October 26, 1977, made by Judge Bernard Lewis sitting at Brentford County Court who had ordered that that part of an order dated October 18, 1977, made by Mr. Jan G. Paulusz, sitting as a deputy circuit judge at the county court which ordered the respondent to vacate certain premises in Hackney, London E9, forthwith and not to return thereto be rescinded.

 

Cur. adv. vult.

 

November 28. The following judgments were read.

 

LORD DENNING M.R. “Battered wives” is a telling phrase. It was invented to call the attention of the public to an evil. Few were aware of it. It arose when a woman suffered serious or repeated physical injury a from the man with whom she lived. She might be a wife properly married to her husband: or she might only be a woman called, falsely, a “common law wife.” No such woman was known to the common law, but it means a woman who is living with a man in the same household as if she were his wife. She is to be distinguished from a “mistress,” where the relationship may be casual, impermanent, and secret.

 

To go back for a few centuries, by the old common law a husband was allowed to beat his wife so long as he did it with a stick no bigger than his thumb. He was able, Blackstone says, to give his wife “moderate [*271] correction.” But Blackstone goes on to tell us that by his time this power of correction began to be doubted: “Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege”: see Blackstone’s Commentaries, vol. 1, 8th ed. (1775), p. 445.

 

Those days are long past. “Battered wives” are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the Domestic Violence and Matrimonial Proceedings Act 1976. This Act came into force in June of last year 1977. Soon afterwards many a woman sought the aid of the county courts for protection under the Act. At first the judges granted injunctions against the man, ordering him out of the house. They followed the very words of the Act. But in two cases the man appealed to this court. In each case his appeal was allowed. It was held by two divisions of this court that the judges in the county court had not the power to grant these injunctions. So the “battered wife” was without the expected redress. The two decisions aroused consternation. Protests were made in responsible quarters. It was said that Parliament had clearly intended that these women should be protected: and that this court had flouted the intention of Parliament. So much concern was expressed that we have called together a full court - a court of all the talents - to review those two decisions: and, if satisfied they were erroneous, to correct them. It is said, however, that we cannot do this. That we are bound by those two decisions: and that wives are to continue to be beaten until the day comes when the House of Lords gives a ruling. So we have two matters of importance to consider: First, were the two decisions erroneous? Second, if they were, can they be corrected by the full court? But before doing so, I must state the facts of our present case.

 

The facts

 

Both the man and the woman are of West Indian origin. The woman is Jennifer Davis. She is now only 21. The man is Nehemiah Johnson. He is twice her age. They have a baby girl who is now aged 212. The woman put her own name down on the local council’s waiting list for a flat. Eventually, it was granted, at 13 Nisbet House, Homerton High Road, Hackney. But at the man’s request, it was put in the joint names of the man and the woman. I regret to say that while they were there the man beat her frequently. The judge said there were two instances “of extreme violence of a horrifying nature.” On one occasion the man threatened her with a screwdriver. He said he would kill her and dump her in the river. He kept a chopper under the bed and threatened to chop her body up and put it into the deep freeze. She was so frightened that she fled with the child to a battered wives’ refuge. It was the one run by Mrs. Pizzey, which has already figured in the Law Reports Simmons v. Pizzey [1979] A.C. 37]. It is grossly overcrowded [*272] The conditions there are said to be deplorable. Nothing could be worse for this battered wife and child - or any other battered wife for that matter - than to have to take refuge there. It would be much better for her to go back to her flat, if she could do so, without being subjected to violence.

 

On October 18, 1977, she applied to the county court for relief under the new Act. She asked to be allowed to go back to the flat and for the man to be excluded from it. The judge made an order on October 18, 1977, in her favour. He ordered the man to vacate the flat and he obeyed it. He went out, and the woman and child went back. But after those two decisions of the Court of Appeal, that order was withdrawn. So the man went in again and the woman went back to the battered wives’ refuge. She now appeals to this court asking that the original order of the deputy circuit judge be restored; and the man be ordered to vacate the flat so that she can return thereto.

 

The Act of 1976

 

To my mind the Act is perfectly clear. Rejecting words that do not apply, section 1 (1) says that

 

“on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing… (c) a provision excluding the other party from the matrimonial home…”

 

Subsection (2) deals with our very case. It says:

 

“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…”

 

No one, I would have thought, could possibly dispute that those plain words by themselves cover this very case. They authorised the judge in the county court to grant an injunction excluding the man from this flat. So I turn to the reasoning of the two decisions of this court which have said the contrary. I must take each of their reasons in order, although it will take longer than I would have wished.

 

The comparison with the High Court jurisdiction

 

The judges in B. v. B. [1978] Fam. 26 were much influenced by the opening and concluding words of section 1 (1). For myself I think they add nothing and subtract nothing. But this is what they say: “Without prejudice to the jurisdiction of the High Court,… whether or not any other relief is sought in the proceedings.”

 

In B. v. B. the judges seem to have thought that the High Court had little or no jurisdiction to exclude a husband from the matrimonial home. They said, at p. 34C-D, that if section 1 (1) gave such jurisdiction to a county court,

 

“then it produces the quite astonishing result that the substantive law in the county court is different from the substantive law to be applied in the High Court.” [*273]

 

I am afraid that the judges sitting in B. v. B. must have misunderstood the law as it is applied in the Family Division. They cannot have appreciated the extent of the jurisdiction of the High Court. It is clearly established that, whenever matrimonial proceedings are pending, the High Court can, at the instance of a battered wife, grant an injunction restraining the husband from entering the matrimonial home, and also excluding him from it, even though he is the owner or the tenant of it in his sole name or it is in joint names: see Silverstone v. Silverstone [1953] P. 174; Jones v. Jones [1971] 1 W.L.R. 396 and Bassett v. Bassett [1975] Fam. 76. Nor is this power confined to cases where matrimonial proceedings are pending. It can be exercised before they are started and after they are finished. Thus, if a wife is urgently in need of protection, the High Court can grant an injunction to exclude the husband from the matrimonial home, even before matrimonial proceedings are started, so long as she undertakes to institute them in the near future. And after decree absolute, the High Court can grant a like injunction if it is necessary in the interests of the children, even though the ex-husband is the proprietor of the house: see Stewart v. Stewart [1973] Fam. 21. And for myself I have never considered the power of the High Court to be limited to matrimonial proceedings. I venture to recall the principles stated in Bendall v. McWhirter [1952] 2 Q.B. 466, 477 and Gurasz v. Gurasz [1970] p. 11, 16, which were quoted with approval in Jones v. Jones [1971] 1 W.L.R. 396, 400-401. It was there held quite generally that the wife has a personal right to stay with the children in the matrimonial home: and if the husband’s conduct is so outrageous as to make it impossible for them to live together, the High Court can order him to go out and leave her there, even though he is the owner or joint owner.

 

Seeing that the High Court has such an extensive jurisdiction, there is no reason whatever for limiting the jurisdiction conferred on the county court by section 1 (1). It gives every county court (not limited to divorce county courts) jurisdiction to exclude a husband whether or not matrimonial proceedings are pending: and without making it necessary to go through the technicality of adding a claim for damages.

 

Interference with rights of property

 

The second reason given by the judges in B. v. B. [1978] Fam. 26 was that section I should be so construed as not to interfere with rights of property. It said that there was “an elaborate legislative code upholding the rights inter se of spouses in relation to the occupation of the matrimonial home” contained in the Matrimonial Homes Act 1967 as now amended by section 3 and 4 of the Act of 1976; and that, in view of that code, section 1 of the Act of 1976 should be regarded as procedural only and not as interfering with the substantive rights of the parties. It did not, therefore, enable the court to exclude Mr. B since he had “an indefeasible right as against Mrs. B. to continue in occupation in virtue of his tenancy.” Nor did it enable the court in the second case Cantliff v. Jenkins [1978] Fam. 47 to oust Mr. Jenkins because he, as joint tenant with Miss Cantliff, had a legal right as a joint tenant to be in possession. [*274]

 

Mr. Joseph Jackson before us placed reliance on that second reason. He urged that there should be no interference with rights of property. But when pressed as to its consequences, it soon became clear that, if this view were correct, it would deprive section 1 of any effect at all. Mr. Jackson said that, as between husband and wife, section 1 (1) did not give the court any power to make an order excluding the husband from the matrimonial home so long as he was the owner or joint owner of the matrimonial home or the tenant or joint tenant. It could only make an order when the wife was the sole owner. But so limited, section 1 (1) was not needed at all: for a wife who is the sole owner can rely on her legal right to exclude him. Then, as between a man and woman living together unmarried, Mr. Jackson said that the woman could never invoke section 1 (2) so long as the man was the owner or joint owner of the home, or the tenant or joint tenant of it: but only when the woman was the sole owner or tenant of it. But in practice the woman never is the sole owner or tenant.

 

So it seems to me that that second reason must be bad too. In order to give section 1 any effect at all, the court must be allowed to override the property rights of the man: and to exclude him from the matrimonial home, whatever his property rights may be.

 

The authority of the House of Lords

 

The third reason given by the court in B. v. B. [1978] Fam. 26 was that on the authority of the House of Lords in Tarr v. Tarr [1973] A.C. 254 there was a general principle of construction that an enactment should not be construed so as to affect the rights of property: and that, if “battered wives” were to be enabled to turn out the men, it would mean “a very drastic inroad into the common law rights of the property-owning spouse.” Similarly, said Mr. Jackson before us, the personal rights of the deserted wife were not allowed to override the property rights of the husband: and he cited the decision of the House of Lords in National Provincial Bank Ltd. v. Hastings Car Mart Ltd. [1965] A.C. 1175. I venture to suggest that that concept about rights of property is quite out of date. It is true that in the 19th century the law paid quite high regard to rights of property. But this gave rise to such misgivings that in modern times the law has changed course. Social justice requires that personal rights should, in a proper case, be given priority over rights of property. In this court at least, ever since the war we have acted on that principle. Whenever we have found a husband deserting his wife or being cruel to her, we have not allowed him to turn out his wife and his children and put them on the street. Even though he may have, in point of law, the absolute title to the property as owner, no matter whether it be the freehold of a fine residence or the tenancy of a council house, his property rights have been made in this court to take second place. I know that in those two cases the House of Lords reversed the decisions of this court and gave priority to property rights. But Parliament in each case afterwards passed laws so as to restore the decisions of this court. I prefer to go by the principles underlying the legislative enactments rather than the out-dated notions of the past. In my opinion, therefore, [*275] we should reject the suggestion that in this Act of 1976 Parliament intended to give priority to the property rights of the husband or the man. So the third reason. to my mind, fails.

 

Joint tenancies

 

I am afraid that I cannot see any possible justification for the decision in Cantliff v. Jenkins [1978] Fam. 47. The woman there was joint tenant with the man. No joint tenant is entitled to oust the other from the property which they own jointly: see Jacobs v. Seward (1872) L.R. 5 H.L. 464 and Bull v. Bull [1955] 1 Q.B. 234. If he does so, the court will not only restore her, but will also order him out. If he were allowed to remain, it would be useless simply to allow her to return: because, as soon as she got in, he would turn her out again. So the court must be able to order him out. That was the very decision of this court in Gurasz v. Gurasz [1970] P. 11.

 

The fifth reason - for how long?

 

In Cantliff v. Jenkins [1978] Fam. 47 the Court of Appeal were influenced by the thought that an injunction under section 1 would be unlimited in point of time. They asked, at p. 51F-G the rhetorical question “For how long?” and answered it by saying that

 

“As a practical matter, such an injunction, unlimited in point of time, would be equivalent to a transfer of property order, continuing as long as the other party was living.”

 

That does not frighten me in the least. But in point of practice, I cannot imagine that, in these cases, under section 1 any injunction would last very long. It is essentially a short-term remedy to meet an urgent need. Under the guidance of their legal advisers, the parties will be able to come to a solution between themselves. Thus the council may transfer the tenancy into the woman’s name. So may a private landlord. Or there may be divorce proceedings in which the court may make an order transferring the title. Or the parties may come together again. Or one or the other may form a new relationship. And so far as rent and rates are concerned, the judge can easily see to those. If the wife is on social security, she will get an allowance with which to pay these.

 

The phrase “are living” in subsection (3)

 

The judges in B. v. B. [1978] Fam. 26 felt difficulty with the words “are living with each other in the same household.” They felt that on the literal meaning of the words they must be living with each other at the time when the woman applies to the court. They realised that in most cases the woman would have already left the house at the time when she makes her application. So the literal meaning would deprive the subsection of much of its effect.

 

To my mind these words do not present any difficulty. They are used to denote the relationship between the parties before the incident which gives rise to the application. If they were then living together in the same household as husband and wife, that is enough. [*276]

 

The proceedings in Parliament

 

So, in my opinion, the reasons given by the judges in those two cases were erroneous. But I wish to go further. I notice that in neither case were the judges referred to the Report of the Select Committee, nor to the proceedings in Parliament. If the judges had been referred to those, they would have discovered the intention of Parliament in passing this Act: and they would, I am sure, have given effect to that intention. This shows how important it is that a court should, in a proper case, have power to refer to the report of a select committee or other travaux prŽparatoires. It will enable the court to avoid an erroneous construction of the Act: and that will be for the good of all. So I will proceed to consider them in this case.

 

First, the House of Commons appointed a Select Committee on Violence in Marriage. They heard much evidence and presented a very informative report on July 30, 1975. It formed the basis of the Act of 1976. There is clear authority that the court can read it so as to ascertain the “mischief” which the Act was intending to remedy. Such is plain from the decision of the House of Lords in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591. The House there overruled this court [1974] Q.B. 660. The decisive factor was that they were referred to the report of a committee under the chairmanship of Greer L.J. and we had not been. If we had seen it, we should not have fallen into error. While all the law lords agreed that judges could read the report so as to ascertain the “mischief” there was a difference of opinion as to whether they could read the “recommendations” that it contained. I must say that it seems to me the whole of such a report should be open to be read. It is absurd to suggest that the judges are to be selective in their reading of it. As Lord Dilhorne observed: “Have they to stop reading when they come to a recommendation?”; see [1975] A.C. 591, 622. And as Lord Simon of Glaisdale said, at p. 646:

 

“Where Parliament is legislating in the light of a public report I can see no reason why a court of construction should deny itself any part of that light and insist on groping for a meaning in darkness or half-light.”

 

Second, the Parliamentary debates on the Domestic Violence Bill. Some may say - and indeed have said - that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view. In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings. And, as I read the observations of Lord Simon of Glaisdale in Race Relations Board v. Dockers’ Labour Club and Institute Ltd. [1976] A.C. 285, 299, he thought so too. I would give an instance. In the debate on the Race Relations Act 1968 there was, I believe, a ministerial assurance given in [*277] Parliament about its application to clubs: and I have a feeling that some of their Lordships looked at it privately and were influenced by it: see Race Relations Board v. Charter [1973] A.C. 868, 899-901. I could wish that in those club cases we had been referred to it. It might have saved us from the error which the House afterwards held we had fallen into. And it is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statements made in committee disposed completely of Mr. Jackson’s argument before us. It is just as well that you should know of them as well as me. So I will give them.

 

The statements in Parliament

 

So far as section 1 (1) was concerned, the clause was inserted in the Standing Committee on June 30, 1976. In introducing it, the Member of Parliament in charge (Miss Richardson) proposed a new clause and said:

 

“The position has recently been considered by the Court of Appeal and restated in Bassett v. Bassett… The new clause would result in a uniform practice being applied in domestic proceedings of this kind, whether or not matrimonial proceedings were in progress.”

 

So far as subsection (2) was concerned (dealing with unmarried women), she said:

 

“In these cases, under existing law, an injunction can be obtained only by means of an action of assault which in county courts must include, I understand, a claim for damages. Even an injunction obtained in this way would not extend to the question of the occupation of the home when the applicant is not the sole owner or the official tenant… the law should be extended to cover these cases. This is what we are seeking to do here.”

 

She went on to say: “The words ‘living with each other in the same household’ are intended to avoid a casual relationship, but to indicate a continuing state of affairs.”

 

It may interest you all to know that she went on to express her gratitude to those who had given her so much assistance in the drafting of the new clause, including the Lord Chancellor and his staff and the parliamentary counsel, and for the Law Commission’s suggestions which had been taken into the Bill. “I hope that now,” she said, “we really have got it right.” This hope was completely frustrated by B. v. B. It is surely permissible for us now to get it right.

 

So it seems to me that on the true construction of this statute, with all the aids that we have at hand, it is plain that the deputy judge in the county court in this case was entitled to make the original order which he made, ordering the man to vacate the house and allowing the woman and her child to return to it: and, in my view, the cases in this court of B. v. B. and Cantliff v. Jenkins were wrongly decided. [*278]

 

Departure from previous decisions

 

I turn to the second important point: Can we depart from those two cases? Although convinced that they are wrong, are we at liberty to depart from them? What is the correct practice for this court to follow?

 

On principle, it seems to me that, while this court should regard itself as normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong. What is the argument to the contrary? It is said that if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords. The answer is this: the House of Lords may never have an opportunity to correct the error: and thus it may be perpetuated indefinitely, perhaps for ever. That often happened in the old days when there was no legal aid. A poor person had to accept the decision of this court because he had not the means to take it to the House of Lords. It took 60 years before the erroneous decision in Carlisle and Cumberland Banking Co. v. Bragg [1911] 1 K.B. 489 was overruled by the House of Lords in Gallie v. Lee [1971] A.C. 1004. Even today a person of moderate means may be outside the legal aid scheme, and not be able to take his case higher: especially with the risk of failure attaching to it. That looked as if it would have been the fate of Mrs. Farrell when the case was decided in this court; see Farrell v. Alexander [1976] Q.B. 345, 359. But she afterwards did manage to collect enough money together and by means of it to get the decision of this court reversed by the House of Lords: see Farrell v. Alexander [1977] A.C. 59. Apart from monetary considerations, there have been many instances where cases have been settled pending an appeal to the House of Lords: or, for one reason or another, not taken there, especially with claims against insurance companies or big employers. When such a body has obtained a decision of this court in its favour, it will buy off an appeal to the House of Lords by paying ample compensation to the appellant. By so doing, it will have a legal precedent on its side which it can use with effect in later cases. I fancy that such may have happened in cases following Oliver v. Ashman [1962] 2 Q.B. 210. By such means an erroneous decision on a point of law can again be perpetuated for ever. Even if all those objections are put on one side and there is an appeal to the House of Lords, it usually takes 12 months or more for the House of Lords to reach its decision. What then is the position of the lower courts meanwhile? They are in a dilemma. Either they have to apply the erroneous decision of the Court of Appeal, or they have to adjourn all fresh cases to await the decision of the House of Lords. That has often happened. So justice is delayed - and often denied - by the lapse of time before the error is corrected. The present case is a crying instance. If it took the ordinary course of appeals to the House, it would take some months before it was decided. Meanwhile many women would be denied the protection which Parliament intended they should have. They would be subjected to violence without redress: because the judges in the county court would have to say to them: “We are sorry but the Court of Appeal says we have no jurisdiction to help you.” We were told that, in this very case, [*279] because of the urgency, the House might take special measures to heat it before Christmas. But, even so, I doubt whether they would be able to give their decision until well on in the New Year. In order to avoid all the delay - and the injustice consequent upon it - it seems to me that this court, being convinced that the two previous decisions were wrong, should have the power to correct them and give these women the protection which Parliament intended they should have. It was suggested that, if we did this, the judges in the county court would be in a dilemma. They would not know whether to follow the two previous decisions or the later decision of this court. There would be no such dilemma. They should follow this later decision. Such a position always arises whenever the House of Lords correct an error made by a previous decision. The lower courts, of course, follow the latest decision. The general rule is that, where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred, if it is reached after full consideration of the earlier decision: see Minister of Pensions v. Higham [1948] 2 K.B. 153, 155.

 

So much for principle. But what about our precedents? What about Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718?

 

The position before 1944

 

I will first state the position as it was before the year 1944. The Court of Appeal in its present form was established in 1873. It was then the final court of appeal. Appeals to the House of Lords were abolished by that Act and only restored a year or two later. The Court of Appeal inherited the jurisdiction of the previous courts of appeal such as the Exchequer Chamber and the Court of Appeal in Chancery. Those earlier courts had always had power to reconsider and review the law as laid down in previous decisions: and, if that law was found to be wrong, to correct it: but without disturbing the actual decision. I take this from the statements of eminent judges of those days who knew the position. In particular in 1852 Lord St. Leonards L.C. in Bright v. Hutton (1852) 3 H.L.Cas. 341, 388, said in the House of Lords:

 

“… You are not bound by any rule of law you may lay down, if upon a subsequent occasion, you should find reason to differ from that rule; that is, that this House, like every court of justice, possesses an inherent power to correct an error into which it may have fallen.”

 

Likewise in 1877 Lord Cairns L.C. in Ridsdale v. Clifton (1877) 2 P.D. 276, 306-307. Then in 1880 the new Court of Appeal on two occasions departed from the earlier decisions of the Court of Appeal in Chancery. It was in the important cases of In re Hallett’s Estate (1880) 13 Ch.D. 696 and Mills v. Jennings (1880) 13 Ch.D. 639, given on February 11 and 14, 1880, within four days of one another. In the latter case the Court of Appeal declared in a single reserved judgment (and among their members was lames L.J. who had an unrivalled experience of 40 years of the practice of the court) that:

 

“As a rule, this court ought to treat the decisions of the Court of [*280] Appeal in Chancery as binding authorities, but we are at liberty not to do so when there is a sufficient reason for overruling them. As the decision in Tassell v. Smith (1858) 2 De G. & J. 713 may lead to consequences so serious, we think that we are at liberty to reconsider and review the decision in that case as if it were being re-heard in the old Court of Appeal in Chancery, as was not uncommon”: see Mills v. Jennings, 13 Ch.D. 639, 648-649.

 

Four years later in The Vera Cruz (No. 2) (1884) 9 P.D. 96, Brett M.R. with 27 years’ experience of the previous practice, said, at p. 98:

 

“… there is no statute or common law rule by which one court is bound to abide by the decision of another of equal rank, it does so simply from what may be called the comity among judges. In the same way there is no common law or statutory rule to oblige a court to bow to its own decisions, it does so again on the grounds of judicial comity.”

 

And Fry L.J. said, at p. 101:

 

“Bearing in mind the observations of Lord St. Leonards” - he by a slip said Lord Truro - “in Bright v. Hutton (1852) 3 H.L.Cas. 341 and Lord Cairns in Ridsdale v. Clifton (1877) 2 P.D. 276, I think that we are not concluded from entertaining this case;…”

 

Two years later in 1886 in Ex parte Stanford (1886) 17 Q.B.D. 259, 269 Lord Esher M.R. [formerly Sir William Brett] called together the full court of six so as to disregard an earlier decision of a court of three. He explained his action quite clearly in Kelly & Co. v. Kellond (1888) 20 Q.B.D. 569, 572 in a passage very apposite today:

 

“This court is one composed of six members, and if at any time a decision of a lesser number is called in question, and a difficulty arises about the accuracy of it, I think this court is entitled, sitting as a full court, to decide whether we will follow or not the decision arrived at by the smaller number.”

 

Those were all judges who knew the old practice: and the principles stated by them were accepted without question throughout the next 50 years. In Wynne-Finch v. Chaytor [1903] 2 Ch. 475 the full court overruled a previous decision of the court. Afterwards Greer L.J. repeatedly said that this court could depart from a previous decision if it thought it right to do so: see Newsholme Bros. v. Road Transport and General Insurance Co. Ltd. [1929] 2 K.B. 356, 384 and In re Shoesmith [1938] 2 K.B. 637, 644. In another case in 1941, Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. [1941] 1 K.B. 675, the Court of Appeal again did not follow a previous decision. So much for the practice until 1944.

 

Young v. Bristol Aeroplane Co. Ltd.

 

The change came about in 1944. In Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 the court overruled the practice of a century. Lord Greene M.R., sitting with a court of five, laid down that this court is [*281] bound to follow its previous decision as well as those of courts of coordinate jurisdiction: subject to only three exceptions: (i) where there are two conflicting decisions, (ii) where a previous decision cannot stand with a decision of the House of Lords, (iii) if a previous decision was given per incuriam.

 

It is to be noticed that the court laid down that proposition as a rule of law. That was quite the contrary of what Lord Esher had declared in The Vera Cruz in 1884. He said it arose only as a matter of judicial comity.

 

Events have proved that in this respect Lord Esher was right and Lord Greene was wrong. I say this because the House of Lords in 1898 had held itself bound by its own previous decisions as a rule of law: see London Street Tramways Co. Ltd. v. London County Council [1898] A.C. 375. But yet in 1966 it discarded that rule. In a statement headed Practice Statement (Judicial Precedent) it was said:

 

“Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice, and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so”: see [1966] 1 W.L.R. 1234.

 

That shows conclusively that a rule as to precedent (which any court lays down for itself) is not a rule of law at all. It is simply a practice or usage laid down by the court itself for its own guidance: and, as such, the successors of that court can alter that practice or amend it or set up other guide lines, just as the House of Lords did in 1966. Even as the judges in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, thought fit to discard the practice of a century and declare a new practice or usage, so we in 1977 can discard the guide lines of 1944 and set up new guide lines of our own or revert to the old practice laid down by Lord Esher. Nothing said in the House of Lords, before or since, can stop us from doing so. Anything said about it there must needs be obiter dicta. This was emphasised by Salmon L.J. in this court in Gallie v. Lee [1969] 2 Ch. 17, 49:

 

“The point about the authority of this court has never been decided by the House of Lords. In the nature of things it is not a point that could ever come before the House for decision. Nor does it depend upon any statutory or common law rule. This practice of ours apparently rests solely upon a concept of judicial comity laid down many years ago and automatically followed ever since… Surely today judicial comity would be amply satisfied if we were to adopt the same principle in relation to our decisions as the House of Lords has recently laid down for itself by pronouncement of the whole House.”

 

The new guide lines

 

So I suggest that we are entitled to lay down new guide lines. To my mind, this court should apply similar guide lines to those adopted by [*282] the House of Lords in 1966. Whenever it appears to this court that a previous decision was wrong, we should be at liberty to depart from it if we think it right to do so. Normally - in nearly every case of course - we would adhere to it. But in an exceptional case we are at liberty to depart from it.

 

Alternatively, in my opinion, we should extend the exceptions in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 when it appears to be a proper case to do so. I realise that this comes virtually to the same thing, but such new exceptions have been created since Young v. Bristol Aeroplane Co. Ltd. For instance, this court can depart from a previous decision of its own when sitting on a criminal cause or matter: see the recent cases of Reg. v. Gould [1968] 2 Q.B. 65 and Reg. v. Newsome [1970] 2 Q.B. 711. Likewise by analogy it can depart from a previous decision in regard to contempt of court. Similarly in the numerous cases when this court is sitting as a court of last resort. There are many statutes which make this court the final court of appeal. In every jurisdiction throughout the world a court of last resort has, and always has had, jurisdiction to correct the errors of a previous decision: see Hadfield’s case (1873) L.R. 8 C.P. 306, 313 and Pollock’s First Book of Jurisprudence (1896), pp. 333-334. In the recent case of Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146, we extended the exceptions by holding that we could depart from a previous decision where there were conflicting principles - as distinct from conflicting decisions - of this court. Likewise we extended the notion of per incuriam in Industrial Properties (Barton Hill) Ltd. v. Associated Electrical Industries Ltd. [1977] Q.B. 580. In the more recent cases of In re K. (Minors) (Children: Care and Control) [1977] Fam. 179 and S. (B. D.) v. S. (D. J.) (Children: Care and Control) [1977] Fam. 109, this court in its jurisdiction over children did not follow the earlier decision of In re L. (Infants) [1962] 1 W.L.R. 886. I would add also that, when the words of the statute are plain, then it is not open to any decision of any court to contradict the statute: because the statute is the final authority on what the law is. No court can depart from the plain words of a statute. On this ground may be rested the decisions in W. & J. B. Eastwood v. Herrod [1968] 2 Q.B. 923 and Hanning v. Maitland (No. 2) [1970] 1 Q.B. 580, where this court departed from previous interpretations of a statute. In Schorsch Meier G.m.h.H. v. Hennin [1975] Q.B. 416 we introduced another exception on the principle “cessante ratione legis cessat ipsa lex.” This step of ours was criticised by the House of Lords in Miliangos v. George Frank (Textiles) Ltd. [1976] A.C. 443: but I venture to suggest that, unless we had done so, the House of Lords would never have had the opportunity to reform the law. Every court would have held that judgments could only be given in sterling. No one would have taken the point to the Lords, believing that it was covered by In re United Railways of Havana and Regla Warehouses Ltd. [1961] A.C. 1007. In this present case the appellant, Miss Davis, was at first refused legal aid for an appeal, because the point was covered by the two previous decisions. She was only granted it afterwards when it was realised by the legal aid committee that this court of five had been specially [*283] convened to reconsider and review those decisions. So, except for this action of ours, the law would have been regarded as settled by B. v. B. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47: and the House of Lords would not have had the opportunity of pronouncing on it. So instead of rebuking us, the House of Lords should be grateful to us for giving them the opportunity of considering these decisions.

 

The truth is that the list of exceptions from Young v. Bristol Aeroplane Co. Ltd: [1944] K.B. 718 is now getting so large that they are in process of eating up the rule itself: and we would do well simply to follow the same practice as the House of Lords.

 

Conclusion

 

Here we have to consider a jurisdiction newly conferred on the county courts of England for the protection of battered wives. It is most important that all the county courts up and down the country should know at once what their powers are to protect these women: and, if the jurisdiction exists, it is most important that the county courts should exercise it at once so that the law should give these women the protection which Parliament intended they should have. This is a very recent Act: it has only been in force 412 months. It is almost inevitable in the early stages, with all the urgency attaching to the applications, that some errors may be made. If they are made, and it appears to the Court of Appeal, on further consideration, that a previous decision was clearly wrong, in my opinion we can depart from it. I would prefer to put it on the ground that this court should take for itself guide lines similar to those taken by the House of Lords; but, if this be not acceptable, I am of the opinion that we should regard it as an additional exception to those stated in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, especially as by so doing we can better protect the weak and do what Parliament intended.

 

I would therefore allow the appeal and restore the decision of the original deputy circuit judge who ordered the man to vacate the council flat.

 

SIR GEORGE BAKER P. A century ago in section 4 of the Matrimonial Causes Act 1878 Parliament first gave an immediate remedy to protect the beaten or, as we now call her, “battered” wife. Where the husband was convicted of aggravated assault the court or magistrate “if satisfied that the future safety of the wife is in peril” could make a non-cohabitation order, a maintenance order, and an order giving custody of any children under ten to the wife.

 

The jurisdiction has been progressively enlarged and adjusted by statutes and decisions but in recent years the problem of domestic violence or, as I prefer to call it, domestic hooliganism, had become so acute and so widespread that there was general concern. The House of Commons appointed a select committee

 

“to consider the extent nature and causes of the problem of families where there is violence between the partners or where children suffer [*284] non-accidental injury and to make recommendations.” (The Select Committee on Violence in Marriage.)

 

That committee required oral evidence from judges of the Family Division. It heard Ministers, law officers and many others, including battered women. It appointed specialist advisers and it reported in July 1975. On July 26, 1976, the Domestic Violence and Matrimonial Proceedings Act received the Royal Assent; it was brought into operation on June 1, 1977. Meanwhile on a parallel course the Law Commission was recommending that power should also be given to magistrates to combat domestic violence by making personal protection orders and exclusion orders: see Law Commission (Law Com. No. 77) Family Law. Report on Matrimonial Proceedings in Magistrates’ Courts, October 20, 1976, pp. 26-29, 32 and 200-201. I have myself never understood how a judge can put aside all knowledge which he has acquired as a member of a committee or a commission or by close association with the history of an Act of Parliament or by ignoring a recurrent and developing thesis on grave social problems, particularly in the sphere of family law.

 

The evil, the mischief, which Parliament sought to reduce and alleviate by this Act was violence, violence in the family. That is clear from the title of the Act. The Act according to the preamble was to achieve this in two ways, (1) by amending the law relating to matrimonial injunction and by giving the police powers of arrest for breach of injunction in cases of domestic violence (what is commonly called backing the injunction for arrest) and (2) by amending the Matrimonial Homes Act 1967 so as to overrule the decision of the House of Lords in Tarr v. Tarr [1973] A.C. 254 and of this court in Gurasz v. Gurasz [1970] P. 11.

 

In my opinion these are two independent parts of this Act which are not dependent on each other in any way. The first two sections deal with an immediate remedy for violence. [His Lordship read section 1 and continued:] The facts of the present case are simple. Miss Davis aged 21 lived with Mr. Johnson aged 42 for about three years. She has a little girl Cordelia aged 212 of whom Johnson is the father. She applied for a council flat which she was granted in June 1977 because of the baby but, at his suggestion, the tenancy was put in their joint names. She paid the rent out of social security. He gave her money when he felt like it. All this was undisputed and accepted by the judge who heard her inter partes applications for an injunction to remove him from the flat, 13 Nisbet House, Hackney, which she had been forced to leave by his violence, and for custody of the child. The father denied violence but the judge (Deputy Circuit Judge Paulusz) on October 18 in Brentford County Court referred to “extreme violence of a horrifying nature,” considered the consequences of making or refusing an order, took into account that the mother and child were living in uncomfortable conditions at the Chiswick Refuge for battered wives, and made injunctions under the Domestic Violence Act 1976 restraining from assault or molestation of the mother or her child and ordered the father to vacate the flat forthwith and not return thereto. The power of arrest was attached. He also gave her custody of the child on her application under [*285] the Guardianship of Minors Act 1971 until further order or the hearing of that application.

 

The accommodation in which the wife was living at the time of the hearing was described by her (and the judge accepted her affidavit evidence) as

 

“appalling… It is so overcrowded and so noisy at night that neither my child nor myself can sleep properly. The windows are broken and it is cold. There is no heating except in the kitchen where everyone crowds in. There are many people, but only one stove. It is very difficult to prepare and cook food. There is only one bathroom where we have to queue. I have to sleep in a bunk bed with my little girl. We have only one quilt between us.”

 

It is difficult to imagine worse conditions for a young child.

 

On October 13 the Court of Appeal gave judgment in B. v. B. reported in The Times of October 14 and on October 20 another division of the Court of Appeal gave judgment in Cantliff v. Jenkins. On October 21 there was a somewhat misleading mention of that decision in the Home News page of “The Times” - “the new law on domestic violence does not give a mistress the same protection as a wife as far as property rights are concerned” and on October 25 there was a very brief report in the Law Report columns of The Times.

 

On October 26 Judge Bernard Lewis, an experienced judge in family matters, rescinded that part of the order which required the respondent to vacate and not to return to 13 Nisbet House, and gave leave to appeal. This man is now back in the flat; the mother remains in the Chiswick refuge. It is reasonable to infer that Judge Lewis considered himself bound by B. v. B.

 

Before considering that decision it is desirable to set out the basic submissions of the parties. Mr. Comyn for the girl and her child says the Act is short, simple and clear. Section 1 (1) (c) is designed to give a speedy remedy where there is an urgent and dangerous situation arising from the evil of domestic violence and this woman and her child need the flat immediately as a short term solution of their problems. The relevant part of section 1 (1) is, he says,

 

“… on an application by a party… a county court shall have jurisdiction to grant an injunction containing… (c) a provision excluding the other party from the matrimonial home….”

 

Nothing could be clearer than that. The next step is that “a party” is not only a party to a marriage but can also be by reason of subsection (2) “a man and a woman who are living with each other in the same household as husband and wife.” This is a much more restricted status than that of a co-habitee, and whether the parties satisfy the requirements of subsection (2) will be a question of fact in each individual case. To avoid confusion, and for convenience, I will refer to the “illegitimate wife” and the “illegitimate husband” as distinguished from the lawful wife and the lawful husband, who are clearly brought under the umbrella of subsection (1) and are afforded the same remedy or protection as that [*286] subsection, and for the present purposes paragraph (c) thereof, gives to a party to a marriage. Miss Davis is an illegitimate wife; of that there is no doubt. Why then is she not covered by the simple plain words of the section? It was argued but not decided in B. v. B. that the use of the present tense in subsection (2) “are living” prevents the illegitimate wife from obtaining an order if she had physically removed herself or been removed from the premises. While appreciating that the words in section 4 (1) of the Act are “a dwelling-house in which they have or at any time have had a matrimonial home,” it seems to me that it cannot have been intended that an illegitimate wife, forced by violence to leave, loses her rights as soon as the door shuts behind her.

 

Mr. Jackson’s argument that she is not covered does not depend on the fact that she is an illegitimate wife as such, but on the proposition that no lawful wife or husband can obtain an exclusion order under section 1(1) (c) unless he or she is sole owner. He submits that section 1 gives the county court power and jurisdiction to turn out a person whether a spouse or an illegitimate spouse from the matrimonial home where that person has no proprietary interests, without the need for the applicant to seek any other relief in the county court, for example, damages for trespass or, in a divorce county court, divorce or judicial separation by petition. In practical language this means that the battered wife or battered illegitimate wife can never obtain an order to turn out the husband or illegitimate husband unless she is the sole owner or the sole tenant and he has no proprietary interest. A moment’s reflection on the realities of life will suffice to show that this situation is most unlikely to arise, for almost invariably the man has the sole or a joint interest, especially in council property. As we have been discussing Latin tags, perhaps I may be permitted to say that such an emasculated subsection (c) can best be described by the well-known quotation from Horace (Ars Poetica) “parturient montes nascetur ridiculus mus.”

 

But is this provision only a tiny miserable mouse incapable of even a nibble at the evil of domestic hooliganism? I do not think so. The Act, as Mr. Comyn said, “is as plain as a pikestaff.” It enables the county court to provide immediately for the urgent and pressing need of a wife and child for a roof, excluding the violent husband from what has been the matrimonial home. It makes the county court the first aid post when there has been serious infringement of the basic human right of wife or child not to be subjected to violence.

 

It follows that I consider B. v. B. [1978] Fam. 26 was wrongly decided. As I read the judgments, the court held that the subsection was procedural only and did not alter the substantive law. It was, said Waller L.J. at p. 41D-E, “concerned solely with giving jurisdiction to the county court.” Of course, one object of the Act was to give the county court power to make an injunction on an application by originating application: see now the County Court (Amendment No. 2) Rules 1977 (S.I. 1977 No. 615 (L. 18)) which added to Order 46 a new rule 28 and sub-rule (2). Previously, to obtain an injunction a wife had to apply to a county court which had been designated a divorce county court and had to petition for divorce which, if she had not been married for three years, she might [*287] not be able to do, or judicial separation which she might not want, paying 16 on filing the petition unless in receipt of supplementary or kindred benefit or in a situation of exceptional hardship. Persons other than wives had first to claim damages for trespass, for an injunction could only be granted in the county court when other relief was sought. Even then it could not normally be given against a person having an interest in the property.

 

By importing into the Domestic Violence Act 1976 the conception of non-interference with a sacred right of property, even where there has been extreme and horrifying violence, the court in B. v. B. deprived section 1 (1) (c) of any practical meaning or purpose. Power to make an injunction is useless if there is no injunction which can be made.

 

Since section 1 (3) of the Matrimonial Causes Act 1967 every matrimonial cause must be commenced in a divorce county court. Defended causes must, and others may, be transferred to the High Court. So either court may be the venue for an injunction, the use of which as a weapon in the cause of matrimonial justice has developed in the last two decades.

 

In Silverstone v. Silverstone [1953] P. 174 Pearce J. restrained the husband from entering the matrimonial home of which he was the owner. He did so because it was desirable to prevent the wife being bullied out of her remedy or deterred by pressure from seeking the help of the court. In Bassett v. Bassett [1975] Fam. 76 the principles on which the court will now act were set out by this court in detail. That case is well known to every judge, and many others who have to consider family law. The court is concerned with homes, the balance of hardship and “impossible” situations where

 

“delay [in making an exclusion order] may be a serious denial of justice, and sometimes a grave failure on the part of the court to exercise its ‘protective powers’”: see per Ormrod L.J. at p. 84.

 

We are told that Bassett [1975] Fam. 76 was cited in B. v. B. [1978] Fam. 26, but there is no reference to it in the judgments. I can only conclude that the court failed to appreciate or to remember the vital role of the injunction in the application of modern family law, with property rights a good deal less important than in the past: see Cumming-Bruce J. at p. 87D. Indeed, in Bassett as in most of the cases which come daily before the courts, there is no information about who has what proprietary rights. The court concentrates on the matrimonial home.

 

Since 1953 the courts have in other ways taken the inherent jurisdiction to grant an injunction beyond what were previously considered its boundaries. In Phillips v. Phillips [1973] 1 W.L.R. 615 this court granted an injunction to an ex-wife four months after decree absolute. Edmund Davies L.J. said, at p. 617:

 

“… here we have two parties, equally entitled to occupation of premises, and what the wife sought was an order that one of them, her former husband, who is lawfully entitled to be there, be turned out - and turned out completely and for ever. The court has said in [*288] a number of cases that so drastic a remedy should be granted only in circumstances demonstrating clearly that such an order was both imperative and inescapable.”

 

And in the same case Roskill L.J. said, at p. 622: “… an order ought not to be made unless a situation was not only impossible but… quite intolerable.”

 

It follows that where the situation is impossible and intolerable it is imperative and inescapable that an injunction must be made.

 

So, too, an injunction was made by this court in H. V. H. and C. (November 5, 1976, Court of Appeal (Civil Division) Transcript No. 403 of 1976) to exclude C the mistress from the matrimonial home at the suit of a wife who was joint owner with her husband.

 

Mr. Jackson seeks to explain the use of injunctions in and after and before matrimonial suits on the grounds that (1) any property issues can be resolved later, in or following the suit; (2) ancillary issues continue after decree absolute and in respect of children may arise years later; (3) there are codes and guidelines in the Matrimonial Causes Act 1973, in the Matrimonial Homes Act 1967 and in the Inheritance (Provision for Family and Dependants) Act 1975 for resolving property disputes but none in the Domestic Violence Act, and if Parliament had intended to give a right to an illegitimate wife there would be a detailed scheme.

 

I reject this argument entirely. Parliament intended to give a speedy remedy, which could and probably would be temporary, as any such injunction is “until further order,” in an impossible and intolerable situation where an injunction by reason of the violence is “imperative and inescapable,” and that is what the subsection says and does. The object of the Act is to protect women and children from violence - a matter of vital concern to the community. It is not concerned with the preservation of property rights, which in any event are minimal in a man with a joint weekly tenancy of a council flat for which he did not pay the rent, and it is wrong to try to defeat the remedy by importing notions and implying motives which are unwarranted.

 

The second and very important question is whether this court can and should refuse to follow B. v. B. [1978] Fam. 26, an earlier decision of its own, which it is satisfied is not only wrong but clearly contrary to the plain terms and intent of a recent Act of Parliament which it refused to apply, or whether this court is bound by what was said in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718; [1946] A.C. 163 about this court being bound to follow its own previous decisions.

 

In Cantliff v. Jenkins [1978] Fam. 47, 51C Stamp L.J. said, referring to B. v. E., “There is the clearest possible decision of this court, which is of course binding upon us,… and that really is the end of the matter.” Orr and Ormrod L.JJ. merely agreed with his judgment. That was all they need have said.

 

I myself think B. v. B. [1978] Fam. 26 can be distinguished from the present case in which on the facts the welfare and even safety of the child is a major consideration. In B. v. B. although the judge in the county court had given custody of the two children aged 10 and nine to the mother, with access to the father, and had made [*289] a supervision order, the children were in fact still living with the father in the matrimonial home at the time of the application. Bridge L.J. said specifically at p. 38D that “there was no suggestion whatever that the children were in any jeopardy.” It would be quite impossible for a trial judge dealing with a custody application to regard the welfare of the child as the first and paramount consideration, as he must, when deciding the question of the custody or upbringing of the child, by section 1 of the Guardianship of Minors Act 1971, and then at the same time on the injunction application under the Domestic Violence Act treat the welfare of the child as second and subsidiary, subordinated to the property rights of the violent man who may or may not be the father. That must be wrong. Miss Davis has the right, through and for the infant Cordelia, to go back to the flat and to have the father excluded. There is here no evidence of violence to the child, but all too often the violent man turns, in time, upon the child and indeed the child is included in Deputy Judge Paulusz’s non-molestation injunction.

 

On this, somewhat narrow, ground I would distinguish the decision in B. v. B. [1978] Fam. 26 but I realised that this is not entirely satisfactory, because it leaves B. v. B. as an authority despite my opinion that it was wrongly decided. I would hope that if this court agrees, having heard full argument, that B. v. B. was wrongly decided, that decision will not be followed hereafter.

 

If this is not an acceptable distinction, then I think that it should not bind this court. Certainty is an important and indeed vital factor in our legal system, though not perhaps so vital in the sphere of family law, where circumstances are so various, as it is in commercial law and the law of contract. Lord Coke C.J. said centuries ago: “It is better that the law should be certain than that every judge should speculate upon improvements in it.” Great weight is given, and rightly given, by every puisne judge to the decisions of his brethren, but in the last resort they do not bind him. The House of Lords is no longer irrevocably bound by its previous decisions: see Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234, where Lord Gardiner stated on behalf of himself and the Lords of Appeal in Ordinary, that although

 

“they regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases… their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case, and also unduly restrict the proper development of the law. They propose… while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”

 

I do not think that it is possible to bring this case within any of the existing exceptions which were spelled out in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, 729, or came later in criminal cases. As to the first; that the court is entitled and bound to decide which of two conflicting decisions of its own it will follow, Mr. Comyn has pointed out [*290] that as the court is bound to follow its previous decision, it is difficult to envisage two conflicting decisions.

 

If, however, I am right in my view that B. v. B. [1978] Fam. 26 can be distinguished, a later court could decide which case it should follow. This again is unsatisfactory. It is not possible to say that B. v. B. was decided per incuriam and is therefore within the third exception to the rule. In Huddersfield Police Authority v. Watson [1947] K.B. 842, 847, Lord Goddard C.J. defined per incuriam as

 

“giving a decision when a case or a statute has not been brought to the attention of the court and it has given its decision in ignorance or forgetfulness of the existence of that case or that statute.”

 

He powerfully supported what had been said three years before in Young’s case [1944] K.B. 718, saying that the Divisional Court should follow its own decisions even where it was a final court of appeal. He was, however, not satisfied that their earlier decision in Garvin v. City of London Police Authority [1944] K.B. 358 was wrongly decided, so what he said was obiter.

 

I have listened with care to Mr. Comyn’s careful argument that Young’s case does not bind this court. I cannot agree with that, but I am prepared to accept that there should be, and must be, a further carefully limited exception which is in part founded on an extension of, or gloss on, the second exception in Young’s case, that the court is bound to refuse to follow a decision of its own which though not expressly overruled cannot in its opinion stand with a decision of the House of Lords.

 

I would attempt to define the exception thus:

 

“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.”

 

My reasons, briefly, are (1) the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 in the House of Lords which recognises the danger of injustice; (2) that there is a conflict between a statutory provision and a decision which has completely misinterpreted the recent statute and failed to understand its purpose; (3) and to me the most compelling, by his judicial oath a judge binds himself to do “right to all manner of people after the laws and usages of this Realm.” Here, by refusing the injunction, I would be doing a great wrong to Miss Davis, her child, and many others by following a decision which I firmly believe is not the law. The statute is the law - the final authority.

 

It is said that the proper course for this court is to be bound by the precedent of B. v. B. [1978] Fam. 26, whatever we may think of it, give leave to appeal and grant an injunction until the hearing which can be expedited. If one learns anything in the Family Division it is that the unexpected always happens in family affairs. There is no certainty that this case will ever reach the House of Lords. The man [*291] may end his tenancy. The girl may decide to go and stay elsewhere. There are many possibilities which could lead to the withdrawal of legal aid which is not normally given in order that an important point of law may be decided where the decision will not benefit the immediate parties.

 

For the rest, I agree with the judgment of Lord Denning M.R. I think the proper course is to allow the appeal against that part of Judge Bernard Lewis’s order which rescinded the exclusion injunction and to dismiss the appeal against that part of Deputy Judge Paulusz’s order as is set out in the respondent’s notice of appeal.

 

GOFF L.J. I need not repeat the facts in this case. They are now well known.

 

The first question which arises in this case is whether the two former decisions of this court in B. v. B. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47n. are in any way distinguishable from the present one, and in my judgment they are not.

 

In B. v. B. the woman had no proprietary interest at all, whereas here the council house tenancy is in joint names, but I do not think that would make the principle on which the first case was decided inapplicable. In any case, however, B. v. B. was followed in Cantliff v. Jenkins and there applied to a local authority tenancy granted to the parties jointly.

 

Much reliance was placed on the fact that in B. v. B., as Bridge L.J. pointed out, at p. 38D-E:

 

“on the evidence before the county court judge it seems… that there was no suggestion whatever that the children were in any jeopardy.”

 

That is certainly a distinction on the facts, but not, I think, a relevant one for present purposes, since it is not material to the question what upon the true construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 (to which I will refer as the “Domestic Violence Act”) is the extent of the jurisdiction conferred upon the county court judge to grant injunctions of the kinds specified in that section, but bears only upon how he should exercise his discretion in exercising that jurisdiction, whatever it be. In any case, there was jeopardy in Cantliff v. Jenkins, and of the same kind as in this case, since there is no allegation of violence towards the child in the appellant’s affidavit of October 11, 1977, which the judge in the county court accepted, nor is there anything in the notes of his judgment to suggest that he found there was any such violence.

 

Finally, it was said that Cantliff v. Jenkins is itself distinguishable, because in that case paternity was denied, but I cannot see how that can have any relevance for present purposes.

 

I pause here to observe that the case came before the court in B. v. B. [1978] Fam. 26 not only under the Domestic Violence Act, but also under the Guardianship of Minors Act 1971, and to say that I regard that as also having no relevance for present purposes. The position under the two Acts was considered quite separately in B. v. B. as appears at the very opening of Bridge L.J.’s judgment, and in any case, as is shown [*292] by the notes of Judge Paulusz’s judgment, there was also an application before him under the Guardianship Act.

 

As in my judgment, for the reasons I have given, the two cases are not distinguishable, I must now turn to the question whether they are binding on this court, whatever our own views may be, and here I regret to find myself in disagreement with the two judgments which have already been given, and I believe with one of those which are to follow.

 

It is said that the principles laid down by Lord Greene M.R. in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 were obiter only and do not bind the Court of Appeal, which should now find either that, albeit to be rarely exercised, the court has power to go behind its own previous decisions in the same way as the House of Lords now has, or at least that the class of exceptions to the general rule laid down in that case is not closed and the present case should be regarded as an exception. Mr. Comyn, in his able and persuasive argument, adumbrated four categories which he submitted either separately or collectively fall outside the general rule, and embrace the present case. They were: (1) A case in which the well-being of a person or a child is a central issue; (2) where a recent important statute has in the view of the court been misinterpreted; (3) where a decision is plainly wrong and the consequence of following it would be far-reaching; and (4) where in the interests of the administration of justice generally it is urgently necessary to correct an error. I think, though in different words, that formulation of the proposition accords with what has found favour with Lord Denning M.R. and Sir George Baker P.

 

Alternatively, it has been suggested that the present court, being five in number and not three, has power not possessed by three to disregard previous decisions at least when in those cases the court consisted of not more than three members.

 

For reasons which I will develop later, I cannot accept any of these submissions.

 

It was further argued that even if the rule in Young’s case [1944] K.B. 718 is binding on this court, and that, notwithstanding it is constituted as it is with five members, still the present case falls within one of the recognised exceptions, namely, where in the earlier decision the court has acted in ignorance of, and contrary to, some statute or statutory provision; but, with respect, in my judgment, that cannot apply to this case. In B. v. B. and Cantliff v. Jenkins the court did not act in ignorance of the Domestic Violence Act or in any way per incuriam. On the contrary, it construed it. If they will forgive me saying so, the Lords Justices who decided those cases may have got it wrong, but that does not make it per incuriam or take it out of the general rule, as Lord Greene M.R. himself pointed out in Young’s case [1944] K.B. 718, 729.

 

In my judgment, with the greatest respect to those who think otherwise, this court when exercising its civil jurisdiction is bound by the general rule in Young’s case, save possibly where it is the final court of appeal, and, further, the class of exceptions is closed.

 

My reasons for this conclusion are the necessity for preserving certainty in our law, which has great value in enabling persons to obtain [*293] definite advice on which they can order their affairs; the care which should always be taken to see that hard cases do not make bad law, and the oft repeated occasions on which Young’s case has been approved on the highest authority.

 

It was submitted th,at there is no statutory or common law obligation on the Court of Appeal to follow its own decisions. It does so by custom or comity only: see The Vera Cruz (No. 2) (1884) 9 P.D. 96, 98, The actual decision in that case is not in point, because there the earlier case had been heard by two Lords Justices only who disagreed, so that there was no effective decision of the Court of Appeal to bind anybody, but the appellant relies on the principle there enunciated. However, that argument was fully deployed in Young’s case [1944] K.B. 718, 720, and rejected by Lord Greene M.R.

 

Lord Greene M.R. laid down the position as follows, at pp. 729-730:

 

“On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction The only exceptions to this rule… are those already mentioned which for convenience we here summarize: (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 of 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.”

 

When the case came to the House of Lords this was approved by Lord Simon [1946] A.C. 163, where he said, at pp. 168-169:

 

“Besides Lord Greene M.R. who delivered the considered judgment of the whole court, Scott, MacKinnon, Luxmoore, Goddard and du Parcq L.JJ. were parties to the decision. One of the conclusions reached in the judgment of the Master of the Rolls, with which I agree, is that if the Court of Appeal, when sitting in one of its divisions, has in a previous case pronounced on a point of law which necessarily covers a later case coming before the court, the previous decision must be followed (unless, of course, it was given per incuriam, or unless the House of Lords has in the meantime decided that the law is otherwise), and that this application of the rules governing the use of precedents binds the full Court of Appeal no less than a division of the court as usually constituted.”

 

The matter was raised again in Gallie v. Lee [1969] 2 Ch. 17, a case where non est factum was pleaded, and Lord Denning M.R. took a less strict line and said, at p. 37:

 

“My brethren think that we are not at liberty to adopt this principle. It is contrary, they say, to previous authorities in this court. I do not agree. There is no case against it save [Carlisle and Cumberland Banking Co. v. Bragg [1911] 1 K.B. 489] and that is inconsistent with many others. It can, therefore, be disregarded. But even [*294] if there were authorities against it, they are only to be found in this court, and are not in the House of Lords. We are, of course, bound by the decisions of the House, but I do not think we are bound by prior decisions of our own, or at any rate, not absolutely bound. We are not fettered as it was once thought. It was a self-imposed limitation: and we who imposed it can also remove it. The House of Lords have done it. So why should not we do likewise? We should be just as free, no more and no less, to depart from a prior precedent of our own, as in like case is the House of Lords or a judge of first instance. It is very, very rarely that we will go against a previous decision of our own, but if it is clearly shown to be erroneous, we should be able to put it right.”

 

It will be seen that in his Lordship’s view the question whether the earlier decisions were binding on the court did not really arise because, in his judgment, it was a case of inconsistent decisions, which are a recognised exception anyway; but he made his view of the general principle quite plain.

 

The other two members of the court, however, did not agree with him. Russell L.J. held that the evidence was in any event insufficient to establish the plaintiff’s claim, so that it was not necessary for him either to determine whether and how far this court is bound by its previous decisions, but he clearly disagreed with Lord Denning M.R., saying, at pp. 41-42:

 

“I add that I do not support the suggestion that this court is free to override its own decisions, now that the House of Lords has given itself ability to override its own decisions. I am a firm believer in a system by which citizens and their advisers can have as much certainty as possible in the ordering of their affairs. Litigation is an activity that does not markedly contribute to the happiness of mankind, though it is sometimes unavoidable. An abandonment of the principle that this court follows its own decisions on the law would I think lead to greater uncertainty and tend to produce more litigation. In the case of decisions of the House of Lords error, or what is later considered to be error, could only previously be corrected by statute: and the other demands on parliamentary time made this possibility so remote that the decision of the House of Lords not necessarily to be bound by a previous decision was justifiable at the expense of some loss of certainty. But the availability of the House of Lords to correct error in the Court of Appeal makes it in my view unnecessary for this court to depart from its existing discipline.”

 

Salmon L.J. also did not have to decide the point because he held that the evidence failed to establish that the plaintiff had been induced to sign the deed by the fraudulent misrepresentation made to her or that she had made any mistake as to the character or contents of the deed, but he said, at p. 49:

 

“As I have already indicated, the law certainly ought, in my view, to be as stated by the Master of the Rolls in his conclusions. I am confident that it would be so stated by the House of Lords were this [*295] question to come before it for decision. So far it has never had occasion to consider the question. In the last century this branch of the law changed. It took a turn in the wrong direction - an example that change may sometimes be for the worse. I am, however, convinced that so long as this court considers itself absolutely bound by its own decisions I have no power to adopt the Master of the Rolls’ conclusions; I must accept the law as stated in the authorities to which I have referred in spite of the fact that it results too often in inconsistency, injustice, and an affront to commonsense. The dicta to the effect that this court is absolutely bound by its own decisions are very strong: see, for example, Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718; [1946] A.C. 163. 169; Bonsor v. Musicians’ Union [1956] A.C. 164, but no stronger than those by virtue of which the House of Lords until recently treated itself as similarly bound by its own decisions. The point about the authority of this court has never been decided by the House of Lords. In the nature of things it is not a point that could ever come before the House for decision. Nor does it depend upon any statutory or common law rule. This practice of ours apparently rests solely upon a concept of judicial comity laid down many years ago and automatically followed ever since: see The Vera Cruz (No. 2) (1884) 9 P.D. 96, per [Brett M.R.], at p. 98. Surely today judicial comity would be amply satisfied if we were to adopt the same principle in relation to our decisions as the House of Lords has recently laid down for itself by a pronouncement of the whole House. It may be that one day we shall make a similar pronouncement. I can see no valid reasons why we should not do so and many why we should. But that day is not yet. It is, I think, only by a pronouncement of the whole court that we could effectively alter a practice which is so deeply rooted. In the meantime I find myself reluctantly obliged to accept the old authorities, however much I disagree with them. My only consolation is that in spite of the present unsatisfactory state of this branch of the law, it enables us, on the facts of this case, to reach a decision which accords with reason and justice.”

 

Notwithstanding the eminence of the judges, with whom I have the honour to be sitting at this moment, this is not the full court.

 

It is, perhaps, open to question whether we have any such consolation as that referred to by Salmon L.J. Some would say “Yes”, because the two cases preserve the property rights of the parties, but others “No” because, as it seems, they go a long way to defeat what they would say (and I respectfully agree with them on that) is the true purpose of the relevant part of this statute.

 

The point arose again in Broome v. Cassell & Co. Ltd. [1972] A.C. 1027. The actual question there was very different because this court had presumed to say that a certain decision of the House of Lords had been given per incuriam and so did not bind this court, of which pronouncement the House emphatically disapproved; but, at p. 1055, Lord Hailsham said this, which is strictly relevant to the present question: [*296]

 

“In addition, the last paragraph of the declaration as quoted above” - that is the House of Lords’ declaration concerning itself - “clearly affirms the continued adherence of this House to the doctrine of precedent as it has been hitherto applied to and in the Court of Appeal.”

 

The same principle is to be found again in the judgment of Scarman L.J. in Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146, where he said, at pp. 172-173:

 

“Had there been no conflict of decisions of equal authority, I would not have thought this court could, or ought to be able to, refuse to follow Law v. Jones [1974] Ch. 112, even though we believed it to be erroneous. The Court of Appeal occupies a central, but, save for a few exceptions, 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. [1944] K.B. 718, 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 correction 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.

 

The matter was considered once more by this court and by the House of Lords in Farrell v. Alexander [1976] Q.B. 345. There Lord Denning M.R. held that Remmington v. Larchin [1921] 3 K.B. 404 was not an authority on section 85 of the Rent Act 1968, because, although it determined the construction of a similar provision in section 8 of the Act of 1920, the law had changed since then; and he further held that Zimmerman v. Grossman [1972] 1 Q.B. 167 was wrongly decided because it proceeded on the footing that Remmington’s case was a binding authority on the construction of section 85. So, in his view, there was nothing which could bind the Court of Appeal. But he said, at pp. 359-360:

 

“I have often said that I do not think this court should be absolutely bound by its previous decisions, any more than the House of Lords. I know it is said that when this court is satisfied that a previous decision of its own was wrong, it should not overrule it but should apply it in this court and leave it to the House of Lords to overrule it. Just think what this means in this case. These ladies do not qualify for legal aid. They must go to the expense themselves of an [*297] appeal to the House of Lords to get the decision revoked. The expense may deter them and thus an injustice will be perpetrated. In any case I do not think it right to compel them to do this when the result is a foregone conclusion. I would let them save their money and reverse it here and now. I would allow the appeal, accordingly.”

 

It should be noted that his Lordship said “when the result is a foregone conclusion” which cannot, in my view, be said of the present case.

 

Lawton L.J., in his judgment, said at p. 364: “Since this case on its facts cannot be distinguished from the two earlier cases, why should they not be followed?” Then, having noted the argument that the Zimmerman case was per incuriam because the court had acted, so it was said, in ignorance of the change in the law, and having shown that that was not so, his Lordship concluded his judgment as follows, at pp. 366-367:

 

“As did Zimmerman v. Grossman [1972] 1 Q.B. 167, this appeal has revealed a gap which Parliament has left (whether wittingly or unwittingly I know not) in its attempts to prevent the exploitation of those in need of houses or flats. Many would think that this gap should be closed as quickly as possible. I certainly do. I would close it at once if I could; but, in my opinion, I could only do so by stretching the law. Adapting Shakespeare’s words, I might be doing a great right but I would be doing a little wrong, and as Portia said: ‘Twill be recorded for a precedent, And many an error, by the same example, Will rush into the state; it cannot be.’: see The Merchant of Venice, Act IV, Scene 1.”

 

Then Scarman L.J. made the position absolutely clear as he saw it. He said, at p. 369:

 

“Can one, however, extend the ‘per incuriam’ exception so as to include a case where the only indication that ‘Homer nodded’ is that one thinks the court put upon the words of the statute a meaning which they cannot bear, and one which leads to a result that appears to be contrary to the purpose of the statute? For myself I would agree with Lord Denning M.R. that one can - in a proper case. But to do so we must be prepared to say not merely that we prefer another construction to that favoured by the court whose decision is under challenge: we must be able to demonstrate that the words of the statute are capable of only one meaning and that the meaning attributed to them by the previous decision is an impossibility. Mistake, not a difference of opinion, is the criterion.”

 

Again Scarman L.J. said, at p. 371:

 

“Nevertheless, 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 [*298] to certainty - one of the great objectives of law. The Court of Appeal - at the very centre of our legal system - is responsible for its stability, its consistency and its predictability: see my comments in Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146, 172. The task of law reform, which calls for wide-ranging techniques of consultation and discussion that cannot be compressed into the forensic medium, is for others. The courts are not to be blamed in a case such as this. If there be blame, it rests elsewhere. Parliament has had since 1922 the opportunity to change the law, but has not taken it; and cannot be thought to have taken the opportunity in the Rent Act 1968, since to do so in that Act would involve a neglect by Parliament itself of its own enactment (the Consolidation Act of 1949). Parliament must use very plain words indeed to justify such a view of its intentions being accepted by the courts. I happen to think that a wrong turning was taken by the Court of Appeal in 1921. But only the legislature, or the House of Lords in its judicial capacity, can put the courts on what I believe to be the right road.”

 

Let it be said at once there was a marked difference there, because Parliament had had years in which to change the law and had not done so, whereas the question today is whether Parliament has changed it; but the principle stated in the first part of that passage clearly applies.

 

I come now to the end of my long line of citation from authority. When the case last cited [Farrell v. Alexander [1977] A.C. 59] reached the House of Lords, Lord Simon of Glaisdale, said at p. 91:

 

“The relevant law on this point has been laid down beyond all question by two of the most eminent judges who have ever held the great office of Master of the Rolls - Lord Greene (in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718) and Lord Denning (in Miliangos v. George Frank (Textiles) Ltd. [1975] Q.B. 487). I content myself with citing the latter (pp. 499, 503): ‘We have further considered this case and we consider we are bound by the earlier decision [of the Court of Appeal in Schorsch Meier G.m.b.H. v. Hennin [1975] Q.B. 416]…. The law on this subject has been authoritatively stated in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 and Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379. This court is bound to follow its own decisions - including majority decisions - except in closely defined circumstances… 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 learned Master of the Rolls explained the relevant defined circumstances in which the Court of Appeal could depart from a previous decision of that court. They did not, of course, extend to a case where the court conceived that the result of an appeal to your Lordships’ House was ‘a foregone conclusion’.”

 

So he rejected even that suggestion.

 

I should add that, looking at the matter as one of comity, when I was a puisne judge I would have hesitated a very long time before refusing [*299] to follow two entirely consistent decisions of my brother judges on a pure question of construction.

 

Such being the state of the authorities, I cannot for my part doubt but that we are bound by B. v. B. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47 and, therefore, I would dismiss this appeal on that short ground, but with great reluctance, since, and with humble respect to the members of the two powerful divisions who decided those cases and with no small trepidation in the presence of so great a cloud of witnesses, I venture to say that I do not agree with their conclusions although in many respects I feel the force of the careful reasoning.

 

As this case may go higher and it is obviously of great importance and urgency, I will now presume to review those cases and give my reasons why I cannot agree with them, although for my part loyally following them.

 

My approach to the problem is the same as theirs. I adopt the principle laid down by Lord Pearson in Tarr v. Tarr [1973] A.C. 254, where he said, at p. 264:

 

“According to a well-established principle of construction, an interpretation which has this effect” - that is, to make a very drastic inroad into the common law rights of the property-owning spouse - “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.”

 

I pause there to say that in my view there is no power to refer to debates in the House of Commons as an aid to construction. The court may, I think, refer to the report of a select committee to see the mischief, but it cannot, as it seems to me, look even at that as direct evidence of intention. The meaning of Parliament must still be found in the words used in the Act. Even so, I part company with the Lords Justices who decided the two earlier cases, because it seems to me that reading the Domestic Violence Act in its context, and of course bearing in mind, as one is entitled and ought to do, the mischief sought to be remedied by the Act which on admissible evidence only appears to me to be clear, the practical advantages of a liberal interpretation do support and indeed establish its claim to be the reasonable interpretation.

 

Now the mischief is plain enough. It is the tragic position of battered wives, including those who, though not married, are living with a man in the same household as man and wife, and the children of the union. For convenience of reference I will refer hereafter to the unmarried man or woman in such circumstances as a “non-spouse” and I observe that the Domestic Violence Act covers the case of a man being the victim, although that must be rare or comparatively so, and having made this observation I will speak hereafter only of a wife or female non-spouse. In cases of domestic violence, particularly where there is a child or children, the wife or female non-spouse, if the Parties are in humble [*300] circumstances, or she has no independent means, finds herself in an awful predicament. Either she stays and suffers further battering as so often happens, or she goes off and fends for herself, leaving the child or children with the violent father, which may be even worse, or she takes them with her to what is often very inadequate and squalid accommodation.

 

The appellant in this case has secured some kind of sanctuary in Mrs. Pizzey’s establishment. I do not wish to criticise that lady in any way. She is, I think, valiantly attempting to do a public service, but she has neither the means nor the space to do it properly, and all that she is able to offer is pitiful enough.

 

Such being the mischief, one would expect the section to cover it, and not to be overmuch concerned with the question who owns the matrimonial or quasi-matrimonial home, and the words of section 1 and, for that matter, section 2, appear to be plainly capable of being construed in that liberal sense.

 

In B. v. B. [1978] Fam. 26 however, this court held that section 1 is a purely procedural section which enables the judge in the county court to grant injunctions of the kind therein specified where that is the only relief sought and not ancillary to anything else. It does not enable him to evict a husband or non-spouse who is the sole owner of the house; and in Cantliff v. Jenkins [1978] Fam. 47 as I have said, this court adopted that decision and applied it to a case of joint tenancy.

 

The result is, as it seems to me, to deprive sections 1 (1) (c) and 2 (1) (c) of almost all effect. In the case of a lawful wife this may not be too serious, because she has other remedies, particularly as sections 3 and 4 of the Domestic Violence Act have so amended the Matrimonialal Homes Act 1967 as to give her the right to an eviction order in aid of her rights of occupation under that Act, and she also has remedies under the Matrimonial Causes Act by way of a transfer of property order. The court also has wide powers in matrimonial proceedings and, prior to decree, it can make an eviction order irrespective of property ownership: see Montgomery v. Montgomery [1965] P. 46; or even after decree, if there are still ancillary matters pending, or in wardship proceedings. Even so, summary jurisdiction to make an eviction order under section 1 (1) (c) and the power under section 2 to back such order by attaching a power of arrest on suspicion may be very valuable to a wife.

 

The non-property-owning non-spouse is in a very different position, however. Except possibly in the High Court jurisdiction in wardship, she has no effective remedy at all if she cannot have the house under the Domestic Violence Act and if she has nowhere else to go.

 

I think much of the difficulty in seeing what Parliament meant to do in the case of a non-spouse is due to the fact that her position seems to have been dealt with as an afterthought. There is no mention of her in the preamble and sections 1 (1) and 2 (1) deal only with husband and wife. Then in each case subsection (2) applies subsection (1) by reference, although the two situations of spouse and non-spouse do not fit.

 

The Court of Appeal in the other two cases was moved to adopt the [*301] limited construction it did and, as I respectfully think, to attach too great importance to rights of property, by a number of considerations.

 

First, it was said that otherwise the law to be applied would be one thing in the county court and quite another in the High Court, which was characterised as extraordinary, and I agree that would be the result, at any rate, in the case of the non-spouse; but I ask myself respectfully “Is it so extraordinary?” This Act was creating a summary remedy for a particular evil, which does not depend on the common law right of property in the home, and Parliament has for many years now been accustomed to create special jurisdictions in the county court.

 

Then it was said that the correctness of adopting the narrow construction is emphasised by the concluding words of section 1 (1) “whether or not any other relief is sought in the proceedings,” but, in my respectful view, this is no more than neutral, even if it does not tend to point the other way. The sole property-owning spouse or non-spouse could at once sue for trespass and apply ex parte for an injunction, to which she would prima facie be entitled. So if the section be limited to her, the procedural advantage of not having to claim any other relief is minimal, whereas, even if the non-property-owning or joint property-owning spouse or non-spouse could get over the procedural difficulty by suing for trespass to the person, she would not have a form of action in which an injunction to evict the owner or co-owner would appear to be appropriate, assuming the Domestic Violence Act does not apply.

 

Then much reliance was placed on the inferences to be drawn from the presence of sections 3 and 4. Indeed, in B. v. B. [1978] Fam. 26, Bridge L.J. thought this carried the matter beyond argument, although Waller L.J. did not find it conclusive. The reasoning is that if section 1 be given the liberal construction, then sections 3 and 4 are otiose. With respect, I do not think they are, for section 1 having regard to the context applies only, I think, where there is domestic violence, while sections 3 and 4 do not require that element; so that, as I see it, a wife might well be entitled to relief under section 3 or 4 although she could not make out a case under section 1, and a non-spouse could only succeed, if at all, by showing a case of violence within that section. But for my part, with all respect, I would rather find sections 3 and 4 otiose than so construe the Act as virtually to abrogate subsection (2) of sections 1 and 2 in relation to applications for injunctions under paragraph (c).

 

This, I think, also answers Megaw L.J.’s point [in B. v. B. [1978] Fam. 26], that sections 3 and 4 are deliberately limited to spouses. Megaw L.J. also said, at p. 45E-F:

 

“I do not think that it could have been intended to provide that the property rights of persons who are not married to each other should, when the relationship between them breaks down, be dealt with on the same criteria or by the same procedural provisions as apply in relation to the property rights of persons who have been married, that is, the whole code, including the statutory provisions from the Married Women’s Property Act 1882 down to the most recent Acts affecting matrimonial property.” [*302]

 

I respectfully agree, but it does not seem to me that a construction which gives relief under section 1 to a non-property-owning non-spouse in the case of domestic violence does in any way involve importing the whole of the matrimonial code.

 

I have been much concerned by the question which Stamp L.J. asked himself in Cantliff v. Jenkins [1978] Fam. 47, where he said, at p. 51F-G:

 

“No doubt the power conferred is to be exercised in the context of violence; but if an injunction is to be granted excluding one of the parties to a union from a house belonging to that party where the Matrimonial Causes Act never had any application, one asks the rhetorical question: for how long? As a practical matter, such an injunction, unlimited in point of time, would be equivalent to a transfer of property order, continuing as long as the other party was living.”

 

It would be an easy way round this to say that section 1 provides only for short term relief, and in the case of a spouse some colour is lent to this suggestion by consideration of the fact that she can commence matrimonial proceedings or apply under the Matrimonial Homes Act 1967, in either of which cases the court would at once have jurisdiction to evict her husband notwithstanding that he is the sole owner of the property or that he has a joint interest. It might be said that section 1 empowers the judge to make an eviction order for a short time while she makes up her mind, and if she does not take either of those steps, then the injunction will lapse or be discharged. So, then the argument would run, the power must be similarly limited when applied by subsection (2) to a non-spouse.

 

For my part, I am unable to take this easy way out, since there is nothing in subsection (1) or (2) of section 1 to say there is to be no power to grant an injunction save for a limited period, and when by subsection (2) this is applied to a non-spouse, there is no standard or criterion to answer Stamp L.J.’s question “How long?” and nothing on which to make the injunction interim. If the section does apply to a non-property-owning non-spouse and the judge grants an injunction, and, the circumstances not having changed, the other non-spouse applies to have it discharged or suspended and the judge refuses him, I do not see how he could possibly appeal on the ground that that was not a proper exercise of the discretion because the judge could only grant short term relief.

 

In my view, therefore, if the liberal construction is to be adopted, it must be recognised that the judge in the county court will have power to evict a man who is sole owner of the property or a joint tenant for an indefinite and possibly very long period. In most cases in fact relief under section 1 will be for a short period only, and in council house cases the problem will then probably be solved by the local authority changing over the tenancy; but I do not shrink from saying that, in my view, this Act was intended to, and does on its true construction, authorise the judge in the county court, if he thinks it proper, to exclude the man from his property indefinitely. After all, if he attacks his wife [*303] or non-spouse with violence it seems to me that he has but little to complain of if he is met with a Draconian remedy.

 

I am conscious too that on this construction there may be many problems in particular cases, as where there is a mortgage to be met, or rent under a contractual tenancy, or where there is a statutory tenancy under the Rent Acts in which the Domestic Violence Act gives no help. In the case of a spouse many, if not all of these problems can be solved under the matrimonial jurisdiction which includes power to transfer a statutory tenancy, but in the case of the non-spouse Parliament has not seen fit to grapple with any of these problems in this brief Act. Possibly it may do so later, but in the meantime I do not myself see why the Domestic Violence Act should not be construed as giving jurisdiction to the judge in the county court to grant an injunction overriding the right of property at common law, so that in the exercise of his discretion the judge in the county court is free to do the best he can.

 

What seems to me to be the crucial factor which if the matter were res integra would lead me to adopt the liberal construction and give the judge in the county court jurisdiction to make any of the orders specified in sections 1 and 2, either for a limited period or indefinitely if he thinks fit, irrespective of the rights of property, is that the strict construction adopted by this court in B. v. B. and Cantliff v. Jenkins, if I may say so with profound respect, virtually strikes the power of eviction in section 1 (1) (c) in its application under subsection (2) to non-spouses out of the Act, since where the non-spouse is sole owner of the property she does not need it, and it gives her at most a minimal procedural advantage, yet where she is not sole owner and the Act is needed to protect her from just the same evil, it is held inapplicable.

 

It must be borne in mind that, on any construction, the power to grant injunctions against molestation is applicable, but even so the complementary power of eviction may often be essential to make a molestation order effective.

 

There remains one other matter which concerns the construction of subsection (2) of sections 1 and 2 which the court left open in B. v. B. and Cantliff v. Jenkins because, in view of the meaning which they put upon subsection (1) of those sections, it was unnecessary to decide it. The point is that the verb in subsection (2) is in the present tense. Where, however, the non-spouse has directly or indirectly been forced to leave the home, then in the literal sense she and the man are not living together as man and wife or, indeed, living together at all, and as the court pointed out, the words in section 4 are “have or at any time have had.” That section, however, covers the case where the spouse against whom relief is sought may still own solely or jointly with the applicant a former matrimonial home, and in my judgment, subsection (2) of sections 1 and 2 is designed merely to give the non-spouse a locus standi to apply for relief as if she were a lawful wife. Where a man and woman who are not married are living together as if they were, then, in my judgment, for the purposes of subsection (1), but only for those purposes, she is to be treated as a lawful spouse. As has been observed whether or not she comes within subsection (2) is a question of fact in [*304] each case. But subsection (2) does give her, for those purposes, the status of a lawful wife, so that upon actual or constructive eviction she becomes entitled to apply for relief under section 1 (1) (c).

 

For these reasons, if the matter were res integra I would allow this appeal. As it is, while having regard to the findings of the judge in the county court I have great sympathy with the appellant and with others in the like predicament, I feel myself bound to apply B. v. B. and Cantliff v. Jenkins, and so I would dismiss the appeal, giving the appellant leave to appeal to the House of Lords. If those decisions are wrong, as I think and have respectfully sought to show they are, it is, in my view, quite clearly for the House of Lords and not this court so to hold.

 

SHAW L.J. The primary question raised in this appeal is as to the construction and effect of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976. That question has already been considered and answered in the Court of Appeal: first, in B. v. B. [1978] Fam. 26 in which Megaw, Bridge and Waller L.JJ. gave concurring judgments on October 13 of this year; and, secondly, a week later in Cantliff v. Jenkins [1978] Fam. 47 when Stamp, Orr and Ormrod L.JJ. agreed in following the earlier decision.

 

In the present appeal Mr. Comyn, counsel for Miss Davis, who in the county court was the applicant for relief under the section, has boldly and forthrightly contended that those decisions were wrong and were founded on too restricted and narrow a view of what section 1 enacted. With even greater boldness and with characteristic courage, he has urged upon this court that, if it should indeed come to the conclusion that the earlier decisions were erroneous, then the right and proper course would be not to stop short at expressing that view, but to go further and give effect to it by allowing this appeal. This course would necessarily involve departing from the decisions of the Court of Appeal in the earlier cases referred to and the invitation to take that course raises in an acute form the issue of stare decisis.

 

The Act giving rise to the suggested difficulties of construction which falls to be considered is a recent one. The relevant provisions came into operation on June 1 in this year. It is beyond controversy that it has as its objective the extension in some respect of the powers of the county court to grant protective relief to victims of violence in matrimonial situations. Those victims would mostly be women and children and their protection must always be a matter of great public concern, for it is undeniable that one of the ugliest features of the contemporary social scene is the prevalence of domestic violence. Not infrequently it is engendered by bad or inadequate housing and aggravated by the great difficulty in finding suitable accommodation for even a small family. If there is a need for the law to provide protection for victims of violence in a family relationship, the relief to be made available must be urgent, radical and incisive. A remedy which was restricted to granting an injunction against molestation while offering the victim the alternatives of continuing to live under the same roof as the aggressor on the one [*305] hand, or being rendered homeless on the other, could only be regarded as futile and pusillanimous.

 

The core of the problem of construction posed is: What does subsection (1) of section 1 of the Act empower the county court to do by virtue of sub-paragraphs (c) and (d) respectively? On their face it would seem plain that they confer a jurisdiction to include the provisions described without regard to whatever proprietary interest “the other party” referred to may have in the premises constituting the matrimonial home. The arguments against this simple and uncomplicated interpretation are not without substance. They may be summarized thus. First, such an untrammelled power would involve a derogation of the rights of property of a respondent in proceedings under the section. Further, there is no statutory restriction on the period for which an order may be made excluding a party from a home in which he has a sole or shared ownership or other title. Again, no provision is made by the Act or any rules under it for directing the administration of rights and obligations relating to the premises while the order is in force. Furthermore, in the case of parties who are not married but who are brought within the scope of subsection (1) by the operation of subsection (2), the county court would appear to be vested with a power not statutorily conferred on the High Court, at least not in any direct sense. Lastly, it is said that the Matrimonial Homes Act 1967, which makes elaborate provision in regard to the protection of spouses, is amended by sections 3 and 4 of the Act of 1976 and that this indicates also the limitations to be placed on the construction of section 1 of that Act. It is in this regard pertinent to observe that section 1 is directly concerned with protection from violence, while the earlier Act, as Goff L.J. has pointed out, is not.

 

I must acknowledge myself to have been much persuaded at first reading by the logical exposition of the effect and operation of section 1 which is contained in the leading judgment in B. v. B. [1978] Fam. 26, delivered by Bridge L.J. However, the construction of a statute dealing with a morbid aspect of society must, it seems to me, be pursued in the practical context of the evil sought to be remedied rather than with analytical detachment. The considerations on which Bridge L.J. founded his judgment were certainly substantial, but they do not in the end deflect me from the view that those considerations cannot and should not prevail against the plain language of a statute whose short title is “Domestic Violence and Matrimonial Proceedings Act”, and whose content can have no other objective than to provide a degree of protection not hitherto available for all those weaker and vulnerable members of a family household who are the victims of violence. If the decision in B. v. B. rightly assesses what section 1 brings about, it comes to no more than this: that in seeking any one of the orders referred to in that section, an applicant is relieved of the necessity to ask for other substantive relief such as damages for assault or for trespass. If this dispensation from what need be no more than mere formality was indeed the intended and entire consequence of the opening provision of an Act of Parliament purporting, as appears from the title and the preamble, “To amend the law relating to matrimonial injunction” in the context [*306] of domestic violence, the section would be reduced to contemptible ineffectuality. To those victims of violence in matrimonial situations who may have hoped to find in its provisions the smallest measure of relief from their tribulations, it would appear as no more than a portentous and pretentious fraud upon their expectations. In order to support the argument which prevailed in B. v. B., counsel for the respondent in the present appeal was forced to contend that section 1 (1) (c) could operate only where the party against whom an order was sought had no proprietary interest whatsoever in the matrimonial home. The plain truth is that in such a situation the power conferred by section 1 (1) (c) would be unnecessary for the purpose of enabling the applicant to secure the eviction of the other party, while on the other hand wherever that other party did have some proprietary interest the section would be wholly ineffectual to provide any protection or relief to an applicant. Thus the section would be utterly stultified, for it would do no more than enable the court to do nothing of any consequence or real effect.

 

I have therefore in this regard arrived at the same conclusion as that expressed in the judgments already delivered, namely, that section 1 is plainly intended to and by its language does invest the county court with powers to make such provisions as are there defined and that such powers are exercisable irrespective of the proprietary rights of the parties.

 

The practical difficulties to which this view of the statutory powers so conferred may give rise are no doubt formidable, as was pointed out by Stamp L.J. in Cantliff v. Jenkins [1978] Fam. 47. In the exercise of those powers, however, the judge will no doubt have regard to every relevant circumstance brought to his notice. What are the prospects of rehousing the applicant and any children in the family? What are the relative means of the applicant and the respondent? Where will the greater hardship lie if the order is made or if prolonged? All these and other matters having a bearing on the respective interests of the parties will no doubt be considered. In general an order made under section 1 (1) (c) or (d) will be for only so long as is reasonably necessary and expedient to protect the applicant from the prospect of further violence without the consequence of rendering the applicant homeless. When an order has been made in an exigent situation it need last only so long as other practical means of resolving that situation do not present themselves. When such means appear to be available the court may consider the matter further in the light of them and vary or discharge the order accordingly.

 

The difficulties envisaged cannot and should not blur the general theme of section 1 (1) (c) and (d) which is, as I see it, that rights of property are, in the context of domestic violence, to be subordinated to the need to protect the victim of that violence from the perpetrator of it. The fact that the violence is suffered in a home which belongs to the perpetrator but is shared by the victim is no justification for denying protection to the victim; it may indeed reinforce the need to provide it.

 

It is not without interest to note that in the interval between the coming into operation of the Act and the decision in B. v. B., judges in [*307] the county court had supposed that section 1 did empower them to make orders under subsection (1) (c) and (d) which were adverse to a party’s rights of property, and it does not appear that they felt unduly oppressed by any insuperable difficulties of a practical kind as to adjustments and administration in regard to property rights.

 

Accordingly, if this court can properly take the course of allowing this appeal, I would readily concur in so doing. But is this court not inhibited by the principle of stare decisis as expounded in the judgment of the court delivered by Lord Greene M.R. in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, 729-730? In other words, does not this appeal fall to be decided in the light of the judgments already given in B. v. B. and Cantliff v. Jenkins six or seven weeks ago?

 

It is not inapt to observe that whatever inhibition may be engendered by the powerful factors which justify and support the principle that this court should follow its own decisions (subject only to the possible exceptions stated in the judgment in Young’s case [1944] K.B. 718), there is no provision under any statute which precludes a departure from earlier decisions. Indeed, had there been, Lord Greene’s exegesis 70 years after the Judicature Act of 1873 would have been both unnecessary and superfluous. It is incontrovertible that certainty in the law is a factor of high importance in the proper administration of justice, but it is not of itself the ultimate ideal. One has to ask in a particular case whether a rigid adherence to what appears to be plainly wrong conduces to the purity of justice or respect for its administration. In almost all cases it may do so but the principle of stare decisis cannot be absolutely universal in its application, as the judgment delivered by Lord Greene M.R. in Young v. Bristol Aeroplane Co. Ltd. shows. Why should that judgment have shut the door on the emergence of other, albeit very special, cases wherein this court should feel that there are considerations so strong against preserving the authority of an erroneous decision as to compel it to depart from that decision and to correct the error? Otherwise a wrong view of the law will continue to operate until the House of Lords is provided with the opportunity to correct it, an opportunity which arises fortuitously only if and when some dissatisfied litigant resolves and is able to carry his cause there.

 

By and large it is probably the case that the general public interest will suffer no mortal blow during the period that a fallacious decision by the Court of Appeal prevails as a statement of the law relating to a particular topic such as finance or commerce or other materialistic subject matter. Anyone who has a sufficient interest to challenge such a decision may do so when the occasion arises for him to assert his rights in the courts. When ultimately the House of Lords determines the matter that litigant will obtain his redress retrospectively. Others before him might have done the same. Stare decisis in the long run does not inexorably make such litigants the hapless and helpless victims of judicial error.

 

That sort of situation bears no relationship to a case like the present arising as it does out of the enactment of a statute which in the judgment of this court was plainly intended to protect the victims of domestic [*308] violence from being thereby driven from the matrimonial home. In less than five months after the coming into force of the relevant provisions of the statute its teeth were effectively drawn by a decision of the Court of Appeal. The result has been not merely to deprive the present appellant of the protection which Parliament intended; it has disfranchised all those who have the misfortune to be in like case, and there are no doubt very many.

 

If, when the House of Lords has had the opportunity of considering the meaning of section 1, their Lordships should come to the conclusion that B. v. B. was wrongly decided, the reversal by them of that decision will afford no retrospective relief at all and not even the coldest comfort to anyone who in the meantime has been refused the remedies which this court now considers were intended to be and were made available by the statute. Because of a legalistic attitude, such persons will have had to make a choice between submitting to the risk of suffering the infliction of further violence or being rendered homeless. Such an outcome of insisting on the inflexibly binding force of an earlier decision would in the minds of reasonable citizens cast a greater slur on the administration of justice than would some limited relaxation of the doctrine of stare decisis. If, however, the House of Lords should uphold the view taken by the court in B. v. B. the harm done by its temporary eclipse will be comparatively very much less. For my part I venture to think that if in 1944 a situation like the present had been in contemplation a further exception might have found a place in the judgment in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718. 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.

 

In Lord Greene’s judgment [1944] K.B. 718, 728 he cites Wynne-Finch v. Chaytor [1903] 2 Ch. 475, in a passage which reads:

 

“the decision was on a point of practice, the question being whether an application ought to have been made to the Chancery Division to set aside a judgment directed to be entered by an official referee to whom the whole action had been referred, or whether the proper procedure was by way of appeal to the Court of Appeal. The question was directed to be argued before the full court. Reference was made to Daglish v. Barton [1900] 1 Q.B. 284, where Stirling L.J., who delivered the judgment of the court, said: ‘With the greatest respect, we are unable to agree with Daglish v. Barton, and think that it ought not to be followed; and it is, therefore, overruled’.”

 

Lord Greene goes on to make the comment:

 

“It may be that the true explanation of this decision is that the court came to the conclusion that the decision in Daglish v. Barton [*309] was manifestly incorrect and contrary to the plain words of the statute. Nevertheless, the case is, we think, an authority in favour of the proposition that the court has power to overrule its previous decisions.”

 

I would adopt what was said by Stirling L.J. in the case there cited with the substitution of the words “departed from” in place of “overruled”; and I would respectfully repeat the comment on and explanation of that decision which follows in the judgment of Lord Greene M.R. I do not for myself read the rest of that judgment as doing more (indeed the court had no power to do more) than “offer guidance,” to borrow the phrase used by Lord Hailsham of St. Marylebone L.C. in his speech in Broome v. Cassell & Co. Ltd. [1972] A.C 1027, 1054, where Young v. Bristol Aeroplane Co. Ltd. was referred to.

 

After anxious consideration and without I trust any abandonment of appropriate judicial restraint I have come to the clear view that when one has regard to the nature of the proceedings with which this appeal is concerned and when one bears in mind that their outcome must have an immediate and direct impact not only on the position of the appellant but on that of many others who are now or may tomorrow become the victims of domestic violence, it is right and proper and indeed imperative that this court should not only decide how section 1 is to be construed and how it is to operate, but, having so decided, that it should also act decisively in pursuance of that view. I thus agree with the result of the judgments of Lord Denning M.R. and Sir George Baker P. for the reasons I have stated.

 

Accordingly I would allow this appeal and restore the order of Deputy Judge Paulusz granting the applicant the injunction sought.

 

CUMMING-BRUCE L.J. Save that I am not prepared to hold that the decision in B. v. B. [1978] Fam. 26 was wrong, I agree with the reasons and order proposed by Goff L.J. and I would be content to agree that the appeal should be dismissed for the reasons that he gave, but, as the case is important and should clearly, in the light of the decision of the majority, go further, I proceed to state my own reasons.

 

The first question which arises for decision is whether on the facts this case can be distinguished from B. v. B. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47 decided in this court in October. For the reasons stated by Goff L.J. I am satisfied that the instant case cannot be distinguished from B. v. B. and Cantliff v. Jenkins. As in Cantliff v. Jenkins this court held that it was bound by B. v. B. to hold that the effect of section 1 was procedural only, the next question which arises is whether, if this court of five judges thinks that B. v. B. and Cantliff v. Jenkins were wrongly decided, it is free to depart from those decisions.

 

Mr. Comyn submits that this court is free to decide its own practice and that its jurisdiction and statutory duty is to be collected from the words of section 24 (7) of the Supreme Court of Judicature Act 1873, wherein it was enacted that the Court of Appeal “shall have power to grant… all such remedies whatsoever as any of the parties thereto may [*310] appear to be entitled to….” He submits that if this court holds that the construction of the statute preferred in B. v. B. and followed in Cantliff v. Jenkins was clearly wrong, no decided case or previous practice can preclude us from doing right and granting to Miss Davis any remedy to which she is entitled.

 

It appears to be clear that the practice of this court has been consistent at least since 1944. It is explained in 1884 as based on comity; it was affirmed in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 in 1944 when the court stated the exceptional situations in which it would not regard itself as bound by its previous decisions. It was affirmed again by a court of five in Morelle Ltd. v. Wakeling, [1955] 2 Q.B. 379, 406-407, where Lord Evershed M.R. said:

 

“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene M.R., of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: ‘Here was a manifest slip or error.’ In our judgment, acceptance of the Attorney-General’s argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided. Although, as was pointed out in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, a ‘full court’ of five judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal division of the court consisting of three judges, we cannot help thinking that, if the Attorney General’s argument were accepted, there would be a strong tendency in cases of public interest and importance, to invite a ‘full court’ in effect to usurp the function of the House of Lords and to reverse a previous decision of the [*311] Court of Appeal. Such a result would plainly be inconsistent with the maintenance of the principle of stare decisis in our courts.”

 

In 1969 a difference of opinion emerged between Lord Denning M.R., Russell L.J. and Salmon L.J.: see Gallie v. Lee [1969] 2 Ch. 17; and this difference with the majority has persisted in a number of differently constituted courts, for example, Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146, and Farrell v. Alexander [1976] Q.B. 345. In the nature of things the House of Lords can never decide the question as necessary to their ratio decidendi, but the observations upon the doctrine of precedent made in their Lordships’ House indicate that the present practice of the Court of Appeal commands the emphatic approval of the final appellate tribunal: see Broome v. Cassell & Co. Ltd. [1972] A.C. 1027 and Farrell v. Alexander [1977] A.C. 59. Scrutiny of these cases and respectful consideration of the dissenting views expressed by Lord Denning M.R. in this court lead me to the conclusion that the practice is based on an appreciation of the policy which is most likely to afford the Crown and its subjects a judicial system in which the conflicting claims of certainty and justice in individual cases are reconciled. It seems to me that in any system of law the undoubted public advantages of certainty in civil proceedings must be purchased at the price of the risk of injustice in difficult individual situations. I would think that the present practice holds the balance just about right. The temptation to depart from it would be much less seductive if there could be readier access to their Lordships’ House. The highest tribunal is within the reach of those whose modest means enable them to qualify for legal aid, and of the extremely rich. Its doors are closed, for practical purposes, to everyone else. The injustice which today is liable to flow from the fact that unsatisfactory old cases are so seldom capable of review in their Lordships’ House would be mitigated or removed if Parliament decided to give this court and the House of Lords power to order that costs in the House of Lords should be paid by the Exchequer in those cases in which this court or the House of Lords on an application for leave to appeal certified that an appeal to the House of Lords was desirable in order to enable that House to review a decision regarded as mistaken but binding on the Court of Appeal. The expense to the public and any resulting inconvenience would be infinitely less than that which would flow from a relaxation of the present practice in respect of stare decisis as declared in Young’s case [1944] K.B. 718. I consider that we are bound to act in accordance with the practice as stated in Young’s case and Morelle’s case [1955] 2 Q.B. 379. This is because I consider that the constitutional functions of their Lordships sitting in their judicial capacity includes the function of declaring with authority the extent to which the Court of Appeal is bound by its previous decisions, and the function of defining with authority the exceptional situations in which it is open to this court to depart from a previous decision. So I hold that this court is bound by the declaration made by Lord Dilhorne, Lord Simon of Glaisdale and Lord Russell of Killowen in Farrell v. Alexander [1977] A.C. 59 that this court is bound by precedent exactly as stated by [*312] Scarman L.J. in his judgment in the Court of Appeal [1976] Q.B. 345, 371, in that case; affirming the declaration made by Lord Hailsham of St. Marylebone L.C. in Broome v. Cassell & Co. Ltd. [1972] A.C. 1027, 1054, a declaration again which commanded the express assent of a majority of their Lordships’ House.

 

In connection with the construction of new statutes, I accept that if it is shown to this court that the meaning attributed to the statute was plainly wrong this court can refuse to be bound by the previous decision. There is authority for that in the judgment of the court in Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379. So I turn to the question whether it has been shown that the decisions in B. v. B. or Cantliff v. Jenkins were plainly wrong.

 

I find it extremely difficult to determine what rights Parliament intended to confer on an unmarried woman by section 1 (2) of this Act. If section 1 (1) stood alone, I would think that it was clear that the effect of the section was procedural as found by the court in B. v. B. The section could enable a married woman who had suffered serious violence to obtain urgent and almost instant relief in her local county court without pausing to consider with her solicitors what relief, if any, she might seek in the longer term. The delays inherent in seeking legal aid for a petition for divorce or judicial separation or for an application under the Matrimonial Homes Act 1967 would be eliminated. Admittedly the High Court in the Family Division and the divorce county courts are already used to giving relief very swiftly in cases of violence by the procedure of granting protective injunctions pending suit upon an undertaking to institute proceedings for substantive relief. But the procedural advantages, and the new power of arrest, constitute an important addition to the powers already available. Such an interpretation of the intention of Parliament seems to me entirely consistent with the views expressed in this court in Bassett v. Bassett [1975] Fam. 76 where in this court Megaw and Ormrod L.JJ. and myself expressed in emphatic terms that in these urgent situations the approach of the court should be strictly practical and deal urgently with the problem of accommodation in the light of conflicting needs. Having dealt pragmatically with the most urgent problem, the long-term solution can be worked out under the complex and fairly sophisticated code which under the Matrimonial Proceedings and Property Act and the Matrimonial Homes Act enables the court to adjust all the accommodation, financial and property interests of the adults and the children after the parties have been able to organise a deliberate and complete inquiry into the justice of the case. So if section 1 (1) stood alone, I would think that B. v. B. was plainly right.

 

But it does not stand alone. Subsection (2) provides that subsection (1) shall apply to the unmarried, who by definition can claim none of the rights conferred upon spouses by the legislation to which I have referred. They come to the court clad only in their common law rights, which for many or most of the ladies concerned is a state of semi-nudity - rights to claim damages for trespass or assault, or to ask that their once loved gentleman be bound over to keep the Peace. If the lady [*313] has children of whom her once loved one is the father, she has rights of contribution to the financial support of the children as provided by the Affiliation Acts. There is no common law duty and no statute which imposes on the father of illegitimate children an obligation to provide a home for his children. It would be rather odd if Parliament had decided to impose this novel obligation in an Act concerned only with urgent protection for women who have suffered violence in a domestic setting. Thus in the common ease in which the man is the sole tenant or owner of the house, he can, for good or ill, give marching orders to his mistress and her children whenever it suits him. If Mr. Comyn’s submission is accepted, she must go, unless in the final stage he uses violence upon her. If he does, she can expel him from the home. This may be right, but the words of subsection (2) are very oddly drafted to effect such a dramatic change in the common law rights and duties of the man and the woman.

 

Another construction is suggested. Although there are no words in the statute indicating an intention to grant a right to an injunction which will only last a short time, did Parliament intend to supplement common law and existing statutory rights and duties by creating a right to expel the man from his house for a limited time? This would be a grant of a novel but short term right. In the urgency of the crisis created for the woman and her children by the violence of the man she can obtain an order expelling him for a short time. Again in the context of spouses, there is no problem. It is simply an injunction pending suit clad in a procedural dress apt to afford urgent relief, strengthened by a power of arrest, which is made available by a specially swift and simple kind of application. But in the case of the unmarried, the practical problems begin when the injunction is granted, and there is, as far as I can see, no way of enabling the court ever to solve them. These problems cannot be justly solved by a judge unless he is empowered to consider and weigh all the relevant factors. This he can do for spouses, because sections 24 and 25 of the Matrimonial Proceedings and Property Act tell him what he can do and how he is to set about it. But an injunction granted under subsection (2) hovers like a kite in the air: the judge holding the string has only two choices as the weeks pass, to pull it down and roll it up, or pull it down and, finding no change of circumstances, send it up again.

 

This very difficulty was explained in the speech of Lord Pearson in Tarr v. Tarr [1973] A.C. 254, 264:

 

“It is to be observed that the practical effect of an order in either of the forms contemplated by the Court of Appeal might well, in the present case and in other cases, result in the total exclusion of the property-owning spouse from his or her own house (the house of which he or she has the title to possession) for many years. If the exclusion was until further order, there would be no reason for any further order until there was a sufficient change in the situation, and there might be no such change for many years. If the exclusion was for a specified period, it could be renewed at the end of the specified period and again and again thereafter, and [*314] presumably would be so renewed until there was a sufficient change in the situation. If the parties both lived on for 40 years, the property-owning spouse might be totally excluded from his or her own house for 40 years.”

 

In the case of spouses Parliament has stepped in and solved the problem by the amendment to the Matrimonial Homes Act enacted by section 3 of the Domestic Violence Act of 1976. Likewise with the problem posed by Gurasz v. Gurasz [1970] P. 11 in this court by section 4.

 

It is submitted that these difficulties are unreal, and flow from an obsession with property rights. It is said that Parliament has passed an essentially simple Act. The words are clear. Whatever the property situation, the lady and the children need urgent protection and somewhere to live. They are in need because the man has behaved like a brute. If he finds that he has lost his home, he has only himself to blame. If he has not the means to provide the woman with whom he has been living as husband and wife, with other accommodation he must give up his own. She will probably have been dependent upon him, and without financial resources, other than social security, and if someone has to suffer, she attracts more compassion than he does. I see the force of this approach, but I do not accept it. In the case of the man, the question may be one of property, but it is also one of accommodation. The two are usually linked. If the house is his, he may have sacrificed much in order to have the accommodation which is his own. If he is sole tenant of a private landlord, his status as a protected tenant under the Rent Acts may be more valuable to him than any property right. If he is sole council tenant, he may have been on the waiting list for years before getting the tenancy; and having regard to experience of local government policy for the past 20 or 30 years, he may reasonably assume that, as long as he complies with his covenants, he will stay there for the rest of his life. It is said that this is all rather absurd in the case of a sole or joint council tenant, because all the council has to do is to weigh the needs of the woman against the needs of the man and, taking note of the order of the court expressed in the injunction, the council will inevitably transfer the tenancy from the man to the woman. We have no evidence about the procedural steps that councils follow in considering such transfers. We were told that the procedures are likely to be slow and cumbrous and involve consideration and inquiry into the facts by a number of committees. If this is correct, it is not an ideal forum for attaining truth and justice in these often difficult domestic cases where the conflicts of evidence are usually dramatic, the corroboration slender, and the two parties commonly rely upon accusations of irrational jealousy (against the man) and infidelity (against the woman). It may be that these considerations played their part in moving Parliament to confer on the Family courts the power to include transfer of tenancies among the powers granted by legislation. I entertain no doubt that, if Parliament has decided to give unmarried couples some or all of the mutual rights and obligations at present enjoyed or borne by spouses, the courts will only be able to do justice in cases of conflict between unmarried couples by enacting a code on much the same lines as exists for spouses. I only [*315] echo what Stamp L.J. said in Cantliff v. Jenkins. It will set the Law Commission and Parliament an unenviable task.

 

For these reasons I do not think that the problem of construction of section 1 (2) is readily solved by holding that it confers on the courts a power to grant short term relief, which power will insensibly contract until it disappears with the passage of an unspecified period of time. Nor do I see how the judge in the county court is to decide that he has lost the power. If things are much the same in a month, two months, six months or a year, what is he to do? And I would expect things to remain much the same. The lady will still be on social security in a great proportion of cases, and the man will only have enough cash to provide for himself. There will be a change if he is in a position to sell or charge the house, or if he has a tenancy with an unexpired term to assign. In such cases, the woman will have no protection, as she cannot register a charge under the Matrimonial Homes Act. Like Goff L.J., these considerations suggest to me that subsection (2) of section 1 was an after-thought.

 

It is said that judges in the county courts are in disarray as a consequence of the decision in B. v. B. This court is invited by Mr. Comyn to cut through the largely imaginary difficulties and say that the Act confers a power to grant injunctions under section 1 (2), whatever invasion of proprietary rights is involved and so end the judges’ difficulties. A majority of this court agrees that the subsection does apply irrespective of the proprietary or statutory rights in the accommodation enjoyed by the man. So be it; but I expect that one consequence will be an immense flow of recurrent litigation in the county court and this court as the owner or tenant persists in his attempts to end the so-called short term injunction.

 

The argument, and really the only argument of Mr. Comyn which appeals to me is that if B. v. B. and Cantliff v. Jenkins are right, there are hardly any women in the class of unmarried, battered co-habitees who can avail themselves of the protection of the Act. This is a forceful argument, and a majority of this court thinks that it outweighs all the contrary considerations. I find it unnecessary to express a view upon it, because I am quite unable to hold that the decision in either B. v. B. or Cantliff v. Jenkins was plainly wrong. In B. v. B. the court considered the words of the section in the context of the whole Act. They studied the words and made a careful analysis of the structure of the Act, and concluded, as in my view they were entitled to do, that the manifest practical difficulties which a literal construction would create were such that Parliament cannot have intended a massive invasion of common law and statutory rights without giving any hint of consciousness of the ensuing problems or any indication of how such problems could be solved in the county court. I can see no ground for holding that these decisions were given per incuriam or were plainly wrong. They may well be right. This court is bound to follow them. The forum for deciding whether they are right or wrong is the House of Lords, and I venture to say that the problem of the construction of section 1 (2) of this Act now cries out for their Lordships’ urgent consideration. And the urgency is [*316] not in my view reduced by the fact that this court has today by a majority decided that the county court has powers which this court has twice in October denied. If B. v. B. is right, as in my view it may be, county courts will now begin granting injunctions which the House of Lords will decide should never have been granted. The sooner this confusion is ended the better, and the confusion can only be set at rest in the House of Lords and probably also by amending legislation. On my information it is possible, though inconvenient, for their Lordships’ House to hear an appeal in this case before Christmas.

 

The experience of the High Court in the Family Division has been that in cases of alleged or actual violence by a husband to a wife, there are some simple and straightforward cases in which the injunction granted pending suit is confirmed when the court has the opportunity of investigating the background. But there are many cases of extreme difficulty, in which it emerges at the subsequent hearing of the suit that the facts are such that it was wholly unjust to expel the husband from the home, so that the injunction granted pending suit should never have been granted. These problems arise at least as acutely in the case of the unmarried, and I doubt that the court in Bassett v. Bassett [1975] Fam. 76 would have expressed its reasoning in quite the way it did if it had thought that the injunction pending suit would not be followed by a full investigation of the matrimonial history in subsequent proceedings. I do not doubt that these considerations were present to the minds of the six members of this court who, in two divisions, successively rejected a literal construction of section 1 (2).

 

I agree with the construction of the words “living together as husband and wife in one household” proposed by Lord Denning M.R., but with all respect I am not able to accept the Master of the Rolls’ reliance upon reference to parliamentary proceedings as an aid to construction of the words in an Act of Parliament. I take the law to be that a report to Parliament is not relevant save for the purpose of appreciating the mischief which the Act seeks to prevent or remedy. I am not alarmed by the criticism that I am a purist who prefers to shut his eyes to the guiding light shining in the reports of Parliamentary Debates in Hansard. The task of this court is to decide what the words of the Act mean. The subject should be able, as in the past, to read the words of an Act and decide its meaning without hunting through Hansard to see whether the Act has a different meaning from that which is to be collected by application of the subtle principles of construction that this court has worked out over the last three centuries. If the words of an Act fail to express the intent that Parliament intended, Parliament in its sovereign power can amend the Act. An Act means what the words and phrases selected by the parliamentary draftsmen actually mean. and not what individual members of the two Houses of Parliament may think they mean. For those reasons I would dismiss the appeal.

 

Appeal allowed.

 

Leave to appeal.

 


 

[*317]

 

Joseph Jackson Q.C. and David McIntyre for the appellant.This appeal raises the question of the ambit of the Domestic Violence and Matrimonial Proceedings Act 1976. Nowhere in the Act is domestic violence defined. Section 1 (1) is not confined to violent behaviour; it would cover harassment, for example, the standing outside the matrimonial home and causing embarrassing situations for the applicant.

 

The opening words of section 1 are: “Without prejudice to the jurisdiction of the High Court….” This language supports the appellant’s contention that the ambit of section 1 is limited and Bridge L.J.’s construction of those words in B. v. B. (Domestic Violence: Jurisdiction) [1978] Fam. 26, 34B-E, is adopted, namely, that this section contemplates that the jurisdiction which it is conferring on the county court will leave unaffected a parallel jurisdiction to grant the like relief in the High Court, and that the section could not possibly be construed as having an effect on the substantive law to be applied in the High Court in deciding whether or not such relief was appropriate to be granted. For if it were otherwise, and this section alters the substantive law affecting parties’ rights to occupy premises, then, as Bridge L.J. observed, it produces the quite astonishing result that the substantive law in the county court is different from the substantive law to be applied in the High Court.

 

The Court of Appeal both in B. v. B. and in Cantliff v. Jenkins (Note) [1978] Fam. 47 considered it very significant that a county court “shall have jurisdiction” to grant an injunction as provided in paragraphs (a) - (d), “whether or not any other relief is sought in the proceedings, for before 1976 a county court could not grant an injunction without other relief sought: see Halsbury’s Laws of England, 4th ed., vol. 10, (1975) p. 37, para. 59 and Rex v. Cheshire County Court Judge and United Society of Bailmakers, Ex parte Malone [1921] 2 K.B. 694. The word “jurisdiction” is used in section 1 in its narrow and strict sense and is being used with reference to the kind of relief sought: see Garthwaite v. Garthwaite [1964] P. 356, 387, per Diplock L.J. To make a change in the substantive law so as to make a change in the rights of the parties the following words would have to be added after the semi-colon in paragraph (d) in place of the words there found, namely, “whether or not the legal estate is vested in one of the parties to the marriage or jointly in them or whether or not both of them are or one of them is entitled to occupy the matrimonial home by virtue of a contract or by virtue of any enactment giving them or one of them the right to remain in occupation.” Looking at the statute as it stands, the Court of Appeal in B. v. B. [1978] Fam. 26 and in Cantliff v. Jenkins [1978] Fam. 47, and Cumming-Bruce L.J. in the present case, were correct in their construction of the ambit of the Act.

 

It was the deliberate intention of Parliament to limit the powers of the Act of 1976 and therefore if a power is not given to exclude the appellant from the house in question in the present circumstances then the court cannot imply such a power, however desirable it may be.

 

Previously there were two attempts by the courts to change the law but both were rejected by this House. The first was the creation of the doctrine of the equity of the deserted wife. This was rejected in National Provincial Bank Ltd. v. Hastings Car Mart Ltd. [1965] A.C. 1175, 1220B, [*318] per Lord Hodson, 1231-32, per Lord Upjohn, and 1244-1245, per Lord Wilberforce. It follows, a fortiori, that a woman who is not a wife cannot be in a better position than a wife. It was said in the Hastings Car Mart case that the law of property in relation to matrimonial matters was in an unsatisfactory state. This was attempted to be remedied by the Matrimonial Homes Act 1967: see section 1 (1), (2), and sections 2, 4 and 5. Section 38 of the Matrimonial Proceedings and Property Act 1970 added subsection (9) to section 1 of the Act of 1967. The Act of 1967 is to be contrasted with the Act of 1976. The former is very carefully drafted, nevertheless it required two amendments. Further, it dealt with all kinds of practical matters which are not dealt with in the Act of 1976 which makes no attempt to deal with them.

 

In Tarr v. Tarr [1973] A.C. 254 this House reversing the decision of the Court of Appeal, held that the expression in section 1 (2) of the Matrimonial Homes Act 1967, “regulating the exercise by either spouse of the right to occupy the dwellinghouse,” was not to be construed as empowering a court to evict from a dwellinghouse of which he was tenant the party to a marriage against whom the other spouse sought such an order. Reliance is placed on that decision on the question of pure construction and for the general observations of Lord Pearson at p. 264. If Parliament had intended to over-ride common law property rights by virtue of section 1 (1) (c) of the Act of 1976 it would have laid down a code or set of guidelines regulating the rights and obligations of the person remaining in occupation of the home after the other person had been excluded: see the Matrimonial Causes Act 1973, s. 25 (which is first to be found in section 5 of the Act of 1970) which lays down guidelines which are coupled with specific powers. This is to be contrasted with the Act of 1976 where such powers would have to be “inferred” to use the expression of Lord Pearson in Tarr v. Tarr [1973] A.C. 254, 264.

 

It is emphasised that the Domestic Violence and Matrimonial Proceedings Act 1976 is limited to protecting mistresses who have property rights. The Act does not achieve much and does not seek to achieve much. The appellant’s construction of the Act makes sense of its provisions and has no defects. The respondent’s construction has defects. If section 1 is to be construed as the Court of Appeal construed it in the present case then as Bridge L.J. observed in B. v. B. [1978] Fam. 26, 36F, sections 3 and 4 are otiose! As to the oddities which arise on the majority of the Court of Appeal’s construction in the instant case: see per Cumming-Bruce L.J. ante, pp. 312H-313C.

 

There is no power in the High Court to grant injunctions as between married persons otherwise than in matrimonial causes properly instituted. The only exceptions are not really exceptions: (a) An application for an injunction on the express undertaking that matrimonial proceedings will be instituted; (b) Ancillary proceedings especially those involving children which arise following the matrimonial cause. On the Court of Appeal’s construction the Act of 1976 is not confined to domestic violence and is not confined to matrimonial proceedings. It is equating the rights of a mistress to those of a wife. This is such a sweeping change in the law that one would expect to find the most express language in the statute in [*319] order to bring it about. This was not the mischief that Parliament was intending to circumvent. Contrast the Inheritance (Family Provision) Act 1975 where in dealing with unmarried persons Parliament has most carefully specifically enacted in relation to the mischief the Act was intended to overcome. See also The Law Reform (Miscellaneous Provisions) Act 1970.

 

This is the first occasion in the matrimonial field in which it has been held that wide rights have been given by implication. The Act of 1976 should be narrowly construed. There are only two alternatives: either a narrow construction or a very wide construction giving substantial substantive rights. The wide construction is a considerable erosion of the married status.

 

The Act of 1976 was enacted following the report of the Select Committee on Violence in Marriage, 1975: see paragraphs 4, 6, 7, 13, 47, 48. Paragraph 48 shows that the mischief aimed at in any consequent legislation was limited. Section 1 (1) (a) and (b) does not give to anyone any additional substantive rights; they enable an injunction to be granted coupled with a power of arrest. Both a married woman and a mistress can apply and obtain an injunction to restrain violence and a married woman under section 1 (c) and (d) can obtain an exclusion order from the matrimonial home, but not a mistress. This is consonant with the rights that the Hastings Car Mart case [1965] A.C. 1175 declared that a married woman had in relation to the matrimonial home.

 

Gurasz v. Gurasz [1970] P. 11, 16-17D is wrong, for as the Hastings Car Mart case declares, there is no power at common law to exclude a husband from the matrimonial home. In Hall v. Hall [1971] 1 W.L.R. 404, 406C, the middle proposition of Lord Denning M.R.’s statement is also wrong. His Lordship’s observation in the present case ante, p. 274F-G “social justice requires that personal rights should, in a proper case, be given priority over rights of property. In this court at least, ever since the War we have acted on that principle,” are the clue to Lord Denning M.R.’s construction of the Act of 1976. On joint tenancies reliance is placed on Bull v. Bull [1955] 1 Q.B. 234, 237, which does not support Lord Denning M.R.’s observations, ante, p. 275B-C.

 

As to the temporal limits of an injunction granted under section 1 of the Act of 1976, the judgments of Cumming-Bruce and Goff L.JJ. below are adopted. It would be a sad commentary on an Act intended to give short term relief if it was found to give long term relief. Reliance is placed on the observations of Lord Upjohn in the Hastings Car Mart case [1965] A.C. 1175, 1231-1232, which highlights the problems that can arise on this question. The present case raises even greater practical difficulties than the Hastings Car Mart case. Suppose a man seeks a bank loan, is the bank manager entitled to ask if he is living with a woman and whether he has been violent towards her or not? See the analogous case discussed by Lord Upjohn at p. 1234.

 

As to the observations of Lord Denning M.R. ante, p. 276G, no court is entitled to look at parliamentary debates. Further, as to the observations of Sir George Baker P., ante, p. 284D-E, an Act of Parliament must be construed as a whole. This Act deals primarily with occupation. The expression, “are living with each other in the same household” in section [*320]

 

1 (2) and section 2 (2) of the Act of 1976 is plain beyond peradventure whatever might have been the intention of Parliament by the use of those words. Those sections apply to persons who are living with each other in the same household. The present respondent is not living with the appellant in the same household. Contrast the language of section 1 (2) and section 2 (2) with that used in section 4 (1), where there is a specific reference relating to restricting occupation of the matrimonial home. These latter words should have been used in section 1 and section 2 to achieve the purpose for which the respondent contends was the intention of Parliament. Moreover, it is emphasised that the absence in the Act of any time limit on the length of any injunction which might be made pursuant to it makes it all the more necessary to give a literal construction to its provisions.

 

[LORD DIPLOCK intimated that their Lordships did not wish to hear argument on the question whether the Court of Appeal bound itself by its own decisions - The House would deal with that question itself.]

 

Lionel Swift Q.C. and Judith Parker for the respondent. There are two principal submissions: (1) Upon a literal interpretation of the Act of 1976 the terms of section 1 are plain and confer jurisdiction on the county court to grant an injunction against a person within the section irrespective of the property rights of the parties.

 

(2) If it is necessary to consider the mischief rule of construction then it becomes plain that Parliament intended the county court to have jurisdiction to grant an injunction irrespective of the property rights of the parties.

 

(1) Attention is drawn to the short and long title of the Act. They both refer to domestic violence. The meaning of section 1 (1) is plain if it is read without the opening words, “without prejudice to the jurisdiction of the High Court”, and without concluding words, “whether or not any other relief is sought in those proceedings”. The words “without prejudice” are not of themselves restrictive of the power conferred on the county court. Since section 1 (1) is concerned with the parties to a marriage it is quite plain that Parliament recognised that there was any overlapping jurisdiction with that of the High Court. Plainly the subsection was intended to give additional powers. As to the judgment of Bridge L.J. in B. v. B. [1978] Fam. 26, it is not necessary to imply that the jurisdiction of the High Court is a parallel jurisdiction. It is not coextensive jurisdiction.

 

There is no doubt that in the High Court in matrimonial proceedings there is power to grant an injunction which interferes with the property rights of married persons. This power is also to be found in wardship proceedings where a man could be excluded from his own house if it was in the interests of the ward.

 

As to Bull v. Bull [1955] 1 Q.B. 234, the court was not there considering an abuse by one joint owner at all but in the present case the court is so concerned. To the argument that it would be astounding if there was a difference in the substantive law in two jurisdictions the answer is that that is already the case, for example, in the realm of cruelty.

 

As to the expression, “whether or not other relief is sought,” [*321] these are neutral words but they are an indication that an applicant in the county court in order to succeed does not have to have a right of property in the premises in question. Moreover, it has been long established that an injunction could not be obtained in the county court if no other relief was claimed. Parliament is therefore removing that particular obstacle in this limited type of case.

 

The whole of section 1 (1) contemplates an application where there has been a molestation of a child. But the subsection does not make it a pre-requisite that the wife be living in the premises at the time of the application. This is a further indication that Parliament was not concerned with the proprietary rights of the parties.

 

As to the argument based on property rights, the appellant’s contention is based on Tarr v. Tarr [1973] A.C. 254 and on a rule of construction that if a statutory provision appears to make inroads on the property rights of a party it must be very clearly expressed. But the relevant provision of the Act of 1976 is plain within the meaning of Lord Pearson’s dictum in Tarr v. Tarr [1973] A.C. 254, 264. In the present Act there is no presumption that Parliament intended to differentiate between the property rights of spouses and that of parties living together. The legislature in this Act did not have to set down rules or guidelines. It might have been desirable so to do to assist the court in exercising its discretion but it was not necessary.

 

An injunction granted pursuant to this is quite a different “animal” from an injunction granted under the Act of 1967. In a sense it affects property rights, but in excluding, for example, the man with whom a woman has been living, from the house it is merely extending the licence that the man conferred upon his mistress while she was living in the premises with him. It is emphasised that it is not destructive of the object of this Act that there is no code or guidelines in it. The Matrimonial Homes Act 1967 was the first tentative attempt to deal with property interests. But the Act of 1976 is not concerned with property interests, save incidentally.

 

As to the duration of an injunction, the county court has the power to exclude the husband even after dissolution of the marriage but this would only be done in very exceptional circumstances. For the protection accorded to a mistress, see Goff L.J., ante, p. 303C-E. Suppose a girl becomes a man’s mistress at the age of 17 and they break up when she is 60. The court might well make an order excluding the man from the premises indefinitely. It is wrong to limit the factors that the judge would take into account but examples are the length of the liaison, the number of children if any, the amount of violence, its duration, and the respective property rights of the parties in the house.

 

For the mischief at which this Act was aimed, see the Report of the Select Committee on Violence in Marriage July 1975 (H.C. 553/1) which took cognisance of the approach of the Court of Appeal in Bassett v. Bassett [1975] Fam. 76.

 

If the interpretation of the Act be adopted as suggested by the appellant then the benefit afforded by section 1 (1) (c) and (d) is [*322] extremely limited indeed. Such a construction would seem to afford very limited relief in respect of a section with such detailed provisions.

 

On the relationship between sections 1 and 2 and sections 3 and 4, the observations of Goff L.J., ante, p. 301E-F are adopted. On the question of jurisdiction, Diplock L.J. was considering a very different situation in Garthwaite v. Garthwaite [1964] P. 356. His Lordship’s observations in that case (p. 387) do not touch the present. The word “jurisdiction” often means no more than “power.”

 

It is plain from the Report of the Select Committee on Violence, para. 50, and Bassett v. Bassett [1975] Fam. 76, 81C, 87C-D, that throughout the report the committee were not concerned with property rights but with over-riding property rights and protecting women and children from violence. The mischief of this Act is clear beyond a doubt.

 

In conclusion, on the meaning of the expression “are living with each other in the same household,” see per Goff L.J., ante, pp. 303F-304A. It cannot connote physical presence in the premises at the time when the application is made.

 

Jackson Q.C. replied.

 

Their Lordships took time for consideration.

 

March 9, 1978. LORD DIPLOCK. My Lords, this appeal is from a judgment of the Court of Appeal which, by a majority of three out of five members who sat (Lord Denning M.R., Sir George Baker P. and Shaw L.J.; Goff and Cumming-Bruce L.JJ. 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. (Domestic Violence: Jurisdiction [1978] Fam. 26 on October 13, 1977, the Court of Appeal consisting of Megaw, Bridge, and Waller L.JJ. decided unanimously that it bore the narrower meaning: it gave additional remedies but created no new legal rights. In Cantliff v. Jenkins (Note) [1978] Fam. 47 on October 20, 1977, the Court of Appeal then consisting of Stamp, Orr, and Ormrod L.JJ., while holding itself to be bound by the decision in B. v. B. since it regarded that case as indistinguishable, 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. [*323] 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 to 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, of the members of the Court of Appeal who sit regularly in civil matters (of whom there are now 17) 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 Lord Denning M.R., Sir George Baker P. and Shaw L.J. that the Court of Appeal was not bound by its own previous decisions is correct, this would apply to its decision in the instant case; and had there been no appeal to your Lordships’ House to cut the Gordian knot, it would have been open to the Court of Appeal in any subsequent cases to give effect to the wider or the narrower construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 according to the preference of the majority of the members who happened to be selected to sit on that particular appeal.

 

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

 

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

 

So far as civil matters are concerned the law upon this question is now clear and unassailable. It has been so for more than 30 years. I do not find it necessary to trace the origin and development of the doctrine of [*324] 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] K.B. 718. The judgment of the court was delivered by Lord Greene M.R. 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 of 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 Viscount Simon L.C. with whose speech Lord Atkin agreed: see Perrin v. Morgan [1943] A.C. 399, 405. Although prior to 1944 there had 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 Q.B. 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 [1964] A.C. 163, 169, and by Lord Morton of Henryton and Lord Porter in Bonsor v. Musicians’ Union [1956] A.C. 104, 120, 128.

 

Furthermore, the provisions of the Administration of Justice Act 1969 which authorise “leap-frog” appeals in civil cases direct from the High Court to this House are based on the tacit assumption that the rule as stated in the Bristol Aeroplane case is correct. One of the two grounds on which a High Court judge may authorise a “leap frog” appeal is if he is satisfied that a point of law of general importance involved in his decision: [*325]

 

“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”: section 12 (3) (b).

 

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 [1944] K.B. 718 had never been questioned thereafter until, following upon the announcement by Lord Gardiner L.C. in 1966 [Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234] 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. Cassell & Co. Ltd. [1971] 2 Q.B. 354 and Schorsch Meier G.m.b.H. v. Hennin [1975] Q.B. 416. In his judgment in the instant appeal, Lord Denning M.R. 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 M.R. 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. George Frank (Textiles) Ltd. [1975] Q.B. 487 was before the Court of Appeal Lord Denning M.R. 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 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 Lord Denning M.R. disposed of the case by holding that the Court of Appeal was bound by its own previous decision in the Schorsch Meier case. He added, at p. 503:

 

“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 duty bound to defer to their view.” [*326]

 

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 effect 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 intermediate appellate court, however, the second desideratum can be taken care of by appeal to a superior appellate court, if reasonable means of access to it are available; while the risk to the first desideratum, legal certainty, if the court is not bound by its own previous decisions grows ever greater with increasing membership and the number of three-judge divisions in which it sits - as the arithmetic which I have earlier mentioned shows. So the balance does not lie in the same place as in the case of a court of last resort. That is why the Lord Chancellor’s announcement about the future attitude towards precedent of the House of Lords in its judicial capacity concluded with the words: “This announcement is not intended to affect the use of precedent elsewhere than in this House.”

 

Much has been said in the instant case about the delay and expense which would have been involved if the Court of Appeal had treated itself as bound by its previous decision in B. v. B. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47, 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 Lord Denning M.R.’s colleagues had expressed the reasons for continuing to regard the rule laid down in the Bristol Aeroplane case [1944] K.B. 718 as salutary in the interest of the administration of justice, I select those given by Scarman L.J. in Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146, 172-173, in the Court of Appeal.

 

“The Court of Appeal occupies a central, but, save for a few exceptions, 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 correction 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 [*327] 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 Scarman L.J. again referred to it in dissociating himself from the view, to which Lord Denning M.R. 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 Scarman L.J. there said, at p. 371, was:

 

“… I have immense sympathy with the approach of Lord Denning M.R. I decline to accept his lead only because I think it damaging to the law in the long term - though it would undoubtedly do justice in the present case. To some it will appear that justice is being denied by a timid, conservative, adherence to judicial precedent. They would be wrong. Consistency is necessary to certainty - one of the great objectives of law. The Court of Appeal - at the very centre of our legal system - is responsible for its stability, its consistency, and its predictability: see my comments in Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146, 172. The task of law reform, which calls for wide-ranging techniques of consultation and discussion that cannot be compressed into the forensic medium, is for others. The courts are not to be blamed in a case such as this. If there be blame, it rests elsewhere.”

 

When Farrell v. Alexander ([1977] A.C. 59) reached this House Scarman L.J.’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, at p. 105, expressed his “unreserved disapproval” of that part of Lord Denning M.R.’s 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 announcement in 1966 has applied in relation to its previous decisions. Sir George Baker P., on the other hand, preferred to deal with the problem of stare decisis by adding a new exception to the rule in the Bristol Aeroplane case [1944] K.B. 718, which he formulated as follows, ante, p. 290E-F:

 

“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.” [*328] Shaw L.J. phrased the exception rather differently. He said, ante p. 308E:

 

“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 Sir George Baker P. 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 consequences 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 [1944] K.B. 718 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 September 18, 1977, with the child. She found asylum at a refuge for women in her predicament. It was grossly overcrowded, insanitary and uncomfortable. On October 11 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 [1978] Fam. 47 the injunction excluding the respondent from the flat was withdrawn. Against its withdrawal the instant appeal to the Court of Appeal was brought, it being conceded that the applicant was entitled to the injunctions against violence.

 

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

 

“1. (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 [*329] applicant; (c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included; (d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home; whether or not any other relief is sought in the proceedings. (2) Subsection (1) above shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.”

 

I 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 disagreement 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 I shall resist the temptation to add to or elaborate upon the reasons given by Bridge L.J. in B. v. B. [1978] Fam. 26 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. I 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 prŽparatoires 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 prŽparatoires; 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 prŽparatoires is to be found in reports of such bodies as the Law Commissions and committees or commissions appointed by government or by either House of Parliament to consider reforming particular branches of the law. Where legislation follows upon [*330] 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 A.G. [1975] A.C. 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 (H.C. 553/1). 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 paragraph 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. Nevertheless 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.

 

I 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 by sections 3 and 4. What I cannot accept is that subsection (2), in contrast to subsection (1), was in,tended 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 protection 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 corresponding right of occupation [*331] 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 (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 occupation of the premises that distinguishes the instant case from B. v. B. [1978 Fam. 26. The same distinction could have been drawn in Cantliff v. Jenkins [1978] Fam. 47, which, for this reason, I think was wrongly decided.

 

For these reasons I too would dismiss this appeal.

 

VISCOUNT DILHORNE. My Lords, the result of this appeal depends on the meaning and effect of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976. Its terms must be considered against the background of the Matrimonial Homes Act 1967, which conferred on a spouse not entitled to occupy a dwelling house by virtue of any estate or interest or contract or enactment, the right, if in occupation, not to be evicted or excluded from it by the other spouse except with the leave of the court, and the right, if not in occupation, with the leave of the court to enter into and occupy it. Section 1 (2) of that Act provided that so long as one spouse had rights of occupation, either of the spouses might apply to the court for an order “declaring, enforcing, restricting 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 Tarr v. Tarr [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, at p. 264:

 

“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 [*332] 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 subsection (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. [1978] Fam. 26 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 Act of 1967, applied in the High Court.

 

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

 

“(a) a provision restraining the other party to the marriage from molesting the applicant; (b) a provision restraining the other party from molesting a child living with the applicant; (c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included; (d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial 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 1967 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) [*333] that difficulty has arisen. Since June 1977, when the Act of 1976 came into force, there have been three decisions of the Court of Appeal on it. In the first of them B. v. B. [1978] Fam. 26 Megaw, Bridge and Waller L.JJ. 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 [1978] Fam. 47 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 Lord Denning M.R. 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 Lord Denning M.R., Sir George Baker P. 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 Act of 1976 gives the same rights to an unmarried man as it does to an unmarried woman living in the same household as husband and wife, but as in the majority of cases it will be the woman who invokes the Act, I propose to refer to her only.

 

It was held in B. v. B. [1978] Fam. 26 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) (excluding 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 [1978] Fam. 47, where, as in this case, the unmarried man and woman were joint tenants, Stamp L.J. said, at p. 51, that “Put in laymen’s [*334] 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 molestation 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 unmarried woman, no matter the degree of violence or other molestation threatened or used, will not be entitled to obtain an injunction excluding a man from what has been their home or one requiring him 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 unambiguous and Parliament’s intention apparent. Unmarried persons living together in the same household as husband and wife are for the purposes of section 1 (1) to be treated as if they were married. The unmarried woman to whom subsection (2) applies is to have the same rights as a married woman. A county court judge in the exercise of his discretion can grant an injunction excluding a husband from the home or requiring him to permit her to enter and remain there whether or not she has been subjected to or threatened with violence or molestation. In my opinion subsection (2) entitles him to grant one to an unmarried woman if he would grant it were she married, if the circumstances warrant it and whether or not she has been threatened or molested. Just as a married woman can be protected from eviction from the matrimonial home, so can an unmarried woman coming within subsection (2) be protected from eviction from what has been her home, it may be for a long time. A man who has been living with a woman as his wife in the same household may suddenly tell her to leave and she without violence or molestation may leave and become homeless. He may not say anything but just change the locks on the house when she is out and refuse to admit her. In such cases I do not doubt that it was Parliament’s intention to protect her and in my opinion a county court judge now has power to do so.

 

To hold that protection can only be given if she has property rights is to differentiate between married women and unmarried women to whom [*335] subsection (1) is intended to apply and would in my opinion frustrate the intention 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 [1978] Fam. 47 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 Matrimonial Homes Act 1967, 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. [1978] Fam. 26 the parties had been living together for 10 years. Its purpose was the provision of immediate 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 he followed by an application under the Matrimonial Homes Act 1967 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. [*336]

 

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. It appears that in this case the council granted the tenancy of the flat on account of the respondent’s and her child’s housing needs, and that she and the appellant became joint tenants of it at his instance and after she and the child had been living there without him for some three months. If this be so, then the council might have been willing to grant her the tenancy alone and, in view of what has happened, may now be disposed to terminate the joint tenancy and give her the sole tenancy; and the county court judge may think that the injunction should only continue until the council has dealt with the matter.

 

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

 

That question was conclusively, and one would have hoped finally, settled by the decision in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, a court indeed of all the talents consisting as it did of Lord Greene M.R., Scott, MacKinnon, Luxmore, 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 argument 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 sn 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. [*337]

 

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 construction of 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: see Craies on Statute Law, 7th ed. (1971), pp. 128-129. As Lord Reid said in Beswick v. Beswick [1968] A.C. 58, 73-74:

 

“In construing any Act of Parliament we are seeking the intention of Parliament and it is quite true that we must deduce that intention from the words of the Act…. For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in Select Committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court.”

 

If it was permissible to refer to Hansard, in every case concerning the construction of a statute counsel might regard it as necessary to search through the Hansards of all the proceedings in each House to see if in the course of them anything relevant to the construction had been said. If it was thought that a particular Hansard had anything relevant in it and the attention of the court was drawn to it, the court might also think it desirable to look at the other Hansards. The result might be that attention was devoted to the interpretation of ministerial and other statements in Parliament 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 Lord Denning M.R., ante, p. 270G, says that the phrase “was invented 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 partners or where children [*338] 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 do 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 contingencies likely to attend reform of a complicated branch of the law, were omitted or abridged. However that may be, in the short life-time of the Act the problem now before your Lordships arising out of one of its provisions has had to be considered by 16 Lords Justices and Lords of Appeal, of whom 8 have taken one view of the meaning of the Act and 8 an opposite view.

 

As regards married couples and their families, sections 3 and 4 make certain provisions amending and clarifying the Matrimonial Homes Act 1967, and need not be further referred to. By sections 1 and 2 the scope of the rights of married persons, on behalf of themselves or their children, to obtain the protection of the court in the event of molestation, violence, or unlawful denial of the right of a spouse, arising from status, to access to and occupation of the matrimonial home, is enlarged. Besides exercising these rights in a matrimonial suit, or on an undertaking that a matrimonial suit is in preparation, a summary application may be made to any county court for an injunction containing one or more of the provisions set out in section 1, and in certain circumstances the court may, under section 2, buttress that injunction by attaching a power to arrest the party complained of. Such an application may be made, contrary to the general rule of practice, “whether or not any other relief is sought in the proceedings.” So far no difficulty arises.

 

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

 

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

 

It is unfortunate that this has been described, in popular language, as an attempt to protect “battered mistresses.” The English language is poor in this context. “Mistress,” having lost its respectable if not reverential significance, came to mean a woman installed, in a clandestine way, by [*339] someone of substance, normally married, for his intermittent sexual enjoyment. This class of woman, if indeed she still exists, is not dealt with by the Act of 1976 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 I entirely agree with them. The difficulty which has given rise to so much difference of judicial opinion is this. It is plain, as I have tried to point out, that married persons get nothing out of sections 1 and 2 of the Act except, first, access to the summary powers of any county court, second, the relaxation of the rule as to “any other relief,” and, third, the supplementary weapon of arrest. No legal rights are conferred, in the sense of causes of action giving rise to judicial remedies. The benefits are described, quite fairly, as procedural. If, then, it is said on behalf of the appellant, no causes of action are made available to married persons, neither are they to the unmarried. Since unmarried persons did not have the relevant statutory protection equivalent to that enjoyed by married persons, namely the right of one to restrain the other from entering the matrimonial home, even when that other is joint or sole tenant, and they cannot be said to have acquired it in virtue merely of an enlargement of available procedures, this application should have been dismissed, since the statute provides the respondent with no means of overriding the property right of the other joint tenant. The supposed protection of unmarried women under this Act accordingly turns out to be largely illusory since it amounts to no more than procedural advantages available to a woman who has the sole right of occupation, whether as owner or tenant, of what the statute calls her “matrimonial home.” This, in the social conditions with which we are all familiar, must be a rare bird indeed.

 

I can readily appreciate the intellectual force of the appellant’s argument. On the other hand I must decline to hold that Parliament decreed a trifling and illusory remedy for a known disgraceful mischief, and to hold it in the interest of the conceptual purity of the law. Leaving that interest aside, the plain fact is that the Act of 1976 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 [*340] 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 Parliamentary 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 equivalent 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 occupancy of the matrimonial home by an unmarried woman. Such a clause could easily have removed the difficulties which I think may well arise under the Act in its present form and to which I shall return later. Section 1 of the Act reads as follows:

 

“1. (1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely, (a) a provision restraining the other party to the marriage from molesting the applicant; (b) a provision restraining the other party from molesting a child living with the applicant; (c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included; (d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home; whether or not any other relief is sought in the proceedings. (2) Subsection (1) above shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.”

 

I have no doubt that the opening words of section 1 (1) “Without prejudice to the jurisdiction of the High Court” refer to two things: first to the jurisdiction of the High Court to grant injunctions restraining [*341] 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, I 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 1 (1) 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 1 (1) (c) or (d) of the Act of 1976 prohibiting a spouse, say the husband or paramour, who is the freeholder or tenant of the matrimonial 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(1).

 

The whole purpose of the Act was to afford some protection to “battered wives,” married or unmarried. And to the unmarried ones in particular. The married already had the very full protection afforded by the Act of 1967. The unmarried did not. The married gained little from the Act of 1976 save a quicker and cheaper method of obtaining protection and also the power of arrest attached to an injunction granted under section 2 of the Act. To my mind, the principal object of section 1 (1) (c) and (d) combined with section 1 (2) was to allow the battered so called “common law wife” safely to occupy the “matrimonial home” for a fairly short period in which to find other accommodation for herself and her children if she had any. I do not think that a county court judge [*342] 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 intolerable, 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 provisions 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 1 if they are confined to the meanings I have suggested.

 

The proposition initiated by Bridge L.J. in B. v. B. [1978] Fam. 26 and adopted 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 mistress had an opportunity to look for other accommodation. In Cantliff v. Jenkins [1978] Fam. 47, 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 occupation and his former mistress allowed to enjoy it. I could hope that Parliament may consider amending [*343] the Act by specifying such a period or, perhaps better still, 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 ko 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 exceptional circumstances, to keep a man out of his own flat or house for more than a few months. It must also be remembered that under the Act the former mistress acquires no proprietary right in the premises in question and there is nothing to prevent the man from selling or letting his own property whenever 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 this 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 agreement 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 anything to sell. I expect that probably the council may bring the joint tenancy to an end to 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 exceptions laid down in Young v. Bristol Aeroplane Co. [1944] 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 M.R.) 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. [*344]

 

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 ratio 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 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 lo 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 precedent ended with the words: “This announcement is not intended to affect the use of precedent elsewhere than in this House.” I would also point out that that announcement was made with the unanimous approval of all the Law Lords: and that, by contrast, the overwhelming majority of the present Lords Justices have expressed the view that the principle of stare decisis still prevails and should continue to prevail in the Court of Appeal. I do not understand how, in these circumstances, it is even arguable that it does not.

 

I sympathise with the views expressed on this topic by Lord Denning M.R., but until such time, if ever, as all his colleagues in the Court of Appeal agree with those views, stare decisis must still hold the field. I think that this may be no bad thing. There are now as many as 17 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 appellants’ 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 expenditure of public funds would be minimal.

 

I do not agree with the reasons given by Sir George Baker P. for departing from the rule in the Bristol Aeroplane case [1944] K.B. 718. 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 [*345] present case were never in the contemplation of the Court of Appeal in the Bristol Aeroplane case; and I confess that I find 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] A.C. 58, 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. They 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 1 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. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47 and dismiss the appeal.

 

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 [*346] 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. [1978] Fam. 26 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 [1978] Fam. 47 another division in the Court of Appeal followed this decision.

 

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

 

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

 

Jennifer Therese Davis, the respondent in this appeal, is 21 years old and unmarried. She has a daughter who is now nearly 3 years old. The father of her child is Nehemiah Johnson, the appellant. Miss Davis and the appellant lived together in the same household as man and wife for some years. In 1977 the local council granted them the tenancy of a flat, 13 Nisbet House, Hackney. They were joint tenants. Because of the appellant’s violence towards her, Miss Davis left home with her daughter on September 18, 1977. She went to the Chiswick refuge for battered wives maintained by Mrs. Pizzey. On October 11 she applied under section 1 of the Act of 1976 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 [*347] it. On October 18 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.

 

His order was 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 matrimonial 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 subsection 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 [*348] has provided the remedies specified in subsection (1)? It suggests strongly that the remedies are intended to protect people, not property: for it is highly unlikely that Parliament could have intended by the sidewind of subsection (2) to have introduced radical changes into the law of property. Nor is it necessary so to construe the section. The personal rights of an unmarried woman living with a man in the same household are very real. She has his licence to be in the home, a right which in appropriate cases the courts can and will protect: see Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd. [1948] A.C. 173, per Viscount Simon at pp. 188-191; Binions v. Evans [1972] Ch. 359, per Lord Denning M.R. at p. 367 and Tanner v. Tanner [1975] 1 W.L.R. 1346. 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 that right under the property law or to confer for a period a right of occupancy 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 time of property 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 undermine or diminish the protection being afforded. Accordingly I am unmoved by the arguments which influenced the Court of Appeal in B. v. B. [1978] Fam. 26 and Cantliff v. Jenkins [1978] Fam. 47. 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 I dismayed by the point that the section, while doing no more [*349] for married women than strengthen remedies for existing rights, confers upon an unmarried woman protection in her home including a right of occupation which can for a period over-ride the property rights of her family partner.

 

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

 

How, then does the section fit into the law? First, the purpose of the section is not to create rights but to strengthen remedies. Subsection (2) does, however, confer upon the unmarried woman with no property in the home a new right. Though enjoying no property right to possession of the family home, she can apply to the county court for an order restricting or suspending for a time her family partner’s right to possession of the premises and conferring upon her a limited right of occupancy. In most cases the period of suspension or restriction of his right and of her occupancy will prove, I expect, to be brief. But in some cases this period may be a lengthy one. The continuance of the order will, however, be a matter for the discretion of the county court judge to be decided in the light of the circumstances 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 importantly, 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 available 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 [*350] 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. Secondly, 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 purposes of interpreting statutes.

 

In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591 this House clarified the law on the use by the courts of travaux préparatoires. 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 Parliament 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.

 

Appeal dismissed.