HC Deb 17 October 1969 vol 788 cc708-19

Lords Amendment No. 12: In page 6, line 34, leave out from "on" to end of line 36 and insert "1st January, 1971".

Mr. Alec Jones

I beg to move, That this House doth agree with the Lords in the said Amendment.

The Amendment fixes a specific date for the coming into operation of the Bill. It was a negotiated Amendment in the other place, agreed to without a Division on the basis that a further Bill to deal with financial provision in matrimonial causes would possibly be in force by that date. The Law Commission's Report recommending such a Bill has now been published, and The Lord Chancellor has said in the other place that the Government will introduce a Bill based on the Report.

I am somewhat disappointed with the delay that the Amendment causes, but I accept it, and hope that the House will. I hope that the delay will be used by all of us, by the Government and back-bench Members, by those who supported the Bill and those who opposed it, to ensure a swift passage for the Bill which will implement the financial provisions contained in the Law Commission's Report.

Sir L. Heald

This matter requires some consideration and discussion, because it has caused concern outside the House, as some of us know from correspondence we have had.

It is necessary to remind the House of the history of the matter. It all arose from the famous letter the Lord Chancellor wrote, which was sanctified by the Solicitor-General in putting it before the Committee. It was in no way an official action or official letter. It was a personal letter, but it was given the odour of sanctity, if that is the right word, by the Solicitor-General.

That gave a great deal of comfort to a number of people who have been very anxious about the financial position of the first wife. It was felt that the Lord Chancellor had, in effect, given a personal guarantee that there would be ample opportunity to discuss and give full consideration to any possible improvements in the law, not just taking the Law Commission's Report on a plate.

Now we have a different position. The Lord Chancellor has, in effect, withdrawn this personal undertaking, and we now have merely a date. There is concern about this. I am not expressing any final view until we have had an opportunity of discussing it, but there is undoubtedly a feeling that there is a risk now. We have already heard it said that this matter must be got on with as speedily as possible, because time will be required. I hope that it will be required.

There is concern about the nature and contents of that Bill. The hon. Member for Rhondda, West (Mr. Alec Jones) spoke as if it were the tablets brought down by Moses. It is not; it is only a proposed draft. There will have to be a Bill. I do not profess to be an expert in these matters, but I have already heard several very strong questions about certain parts.

12 noon.

We must also remember that, on the face of it, the Report makes it clear that there is no question of anything being done about the question of pensions, a matter which is of the greatest importance to many of us. Parliament may take the view that something must be done about it. It is all very well to say that 1st January, 1971, is a long time ahead, but it is not in parliamentary terms. We do not know what legislation will be announced next month, and matters may be brought forward which will occupy the House for days and nights.

While I am not opposing the Amendment at this stage, I hope that we will have a clear discussion of the matter. Our anxieties justify our asking for information about what is going on. I do not see why we should depart from the original method, unorthodox though it was in one respect, of having the matter dealt with personally by the Lord Chancellor. Knowing the Lord Chancellor, we hoped that something effective might have been done to enable people to feel that they had a guarantee. If we have a year of uncertainty in politics, as seems likely, people will not know where they stand. It is therefore all the more important that the matter is fully explained.

Dr. Gray

The fixing of a date must force the Government into finding time for the other legislation about which hon. Members have spoken and which we will welcome. We have seen the long time that it has taken the Government to provide parliamentary time for this essential Bill. We must not forget that thousands of people are waiting for this Measure to become law and the fact that they expected it to be law on 1st January, 1970. Already, we are putting it off for a year. This seems more than sufficient to enable the Lord Chancellor and other Law Officers to introduce the other legislation.

I strongly welcome the change that has been made because we now have a definite date. My only regret is that it was not possible to complete everything by 1st January, 1970.

Colonel Sir Tufton Beamish (Lewes)

I remind the hon. Member for Yarmouth (Dr. Gray) that thousands of people who have been or may be divorced are anxious that proper financial provision is made for them. That is the other side of the coin. I regret that this Amendment has been suggested, because I greatly preferred the words which were originally in the Bill.

There is to be, so we are promised, a Bill based on the recommendations of the Law Commission making financial provision for divorced persons and the children in such cases, covering maintenance as well as the custody of children. The Bill makes divorce much easier in many respects and some provisions of it are highly controversial. I am not opposed to these in principle, though, like many hon. Members on both sides, I have substantial reservations about them.

The Lord Chancellor virtually made a promise that a Bill based on the recommendations of the law Commission would be introduced relatively early next Session. He explained that he could not anticipate the Queen's Speech, which we appreciated. The noble and learned Lord also made it clear that, in his opinion, it would be wrong to defer the operation of the Bill we are discussing for what he described as an "extraneous reason"; that is, unless Parliament gave him express authority to do so. The use of the word "extraneous" was extraordinary and it was the last word that I would have used. Parliament was seeking to give him the authority he said he would need to defer the coming into force of this Measure until other legislation was on the Statute Book. Thus, he had no need to worry on that score because what he desired was exactly what the Bill sought to give him.

Will the Bill which has been promised be on the Statute Book before the Bill we are discussing takes effect? Nobody can be sure. Indeed, there may be a General Election in the spring, if not next month. The Labour Party may not win it. The Government of the day may have different views. There may be such a rush of important measures arising from events beyond the control of the Government that there will not be time for such a Measure to be introduced. Nobody can guarantee that a Bill based on the recommendations of the Law Commission will be on the Statute Book in time.

Further, nobody can guarantee that the provisions of such a Bill will be satisfactory. The sponsors of this Bill may not like them. They do not know what shape the Bill will take by the time it is on the Statute Book. These are indisputable facts which must be considered as we discuss this important Amendment.

I have all along been concerned with this issue because of my anxiety that satisfactory arrangements might not be on the Statute Book for the maintenance of divorced persons and the custody of children. By this Measure taking effect on 1st January, 1971, we appear to be putting the cart before the horse in a big way. While I see no point in dividing the House on the Amendment, since Parliament has made its view absolutely clear on the subject, I regard this as a thoroughly bad proposal and see no reason for the rush.

Mr. Percival

I do not dissent from the Amendment, though it raises an important consideration on which we need the view of the Government before finally agreeing to it.

As matters stand, without the Amendment, it is always possible, if it were felt that something should be done about financial provisions, to bring pressure to bear on the Government not to make an order bringing the Measure into effect. This means that as long as the Bill stays in its present form we have that one means of bringing pressure on the Government to do something to improve the Bill to safeguard the innocent divorced party. Once the Amendment is made, however, that means will disappear. It will become merely a question of time. This makes it all the more important to know what the Government have in mind on this issue.

I reiterate what my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) said about the history of this matter. It first arose on Second Reading, when a statement was made by the Solicitor-General. I hope hon. Members will forgive the delay as I try to find the relevant passage in the OFFICIAL REPORT, because it will be my daughter's wedding day tomorrow and I may be forgiven if my mind is not entirely on the contents of the Bill. The Solicitor-General said: In our earlier consideration of the whole matter it was recognised that the proposed changes in the law might involve important consequences from the point of view of social security benefits and financial arrangements. I think that it was widely felt, and understandably so, that if, for example, a wife living apart from her husband found herself divorced without consent at the expiry of the five year period, her position financially deserved careful consideration. For example, if, after the divorce, her husband died, the question of her entitlement to widow's pension on her husband's card might have been affected by the divorce. This point was helpfully taken by my hon. Friend earlier today. It was also widely felt that the need to safeguard the position of spouses in this respect was certainly not entirely satisfactorily met by the provision, in general terms, that a decree could be refused if it were to result in grave financial or other hardship to the respondent. The position of divorced women has not been overlooked in the planning of the new insurance scheme, and it is being considered at the moment by the Government against that background of possible changes in the law of divorce"—[OFFICIAL REPORT, 17th December, 1968; Vol. 775, c. 1077.] There were some exchanges between myself and the Solicitor-General about that as to whether he could go a little further and indicate what he had in mind. I made no complaint then and I make no complaint now. Courteously, the hon. and learned Gentleman said that he could not give any indication; he could only say that the matter was being considered.

Right at that early stage, on Second Reading, we all, on both sides, recognised that in obviating one lot of hardship we might create hardship to other people. We all had in mind very much the question of the widow's pension. Here was a case where what we were doing might cause hardship in some cases.

I am not one of those who calls the Bill a Casanova's charter and thinks that every man over 55 will find himself what is nowadays, I think, called a dolly-bird, go off with her for five years, then divorce his wife and marry the girl. Some will, however, and some wives who have done nothing in their life except keep a lovely home for their family and bring up that family will find themselves the victims of such circumstances. To add insult to injury it may be that the husband having remarried after a very short time, the new wife, who has been the cause of it all, will get the widow's pension unless we do something about it.

I quite understood the Solicitor-General's inability at the time to go any further than he did. I am sure that we all appreciated the indication that he gave us that the matter was under consideration. Since then, a lot of water has passed under the bridge. The matter has been considered by the Law Commission. If I understand its Report correctly, the Commission's conclusion is that we cannot do anything about the widow's pension. We have simply to accept that the situation of which I have tried—albeit briefly—to remind the House, is one which will arise as the result of the passing of the Bill. If that is so, we ought to say so, and say so now.

Therefore, I would like to know whether the Solicitor-General can tell us whether the Government share that view. As the result of the consideration to which he referred on Second Reading, and as the result of the deliberations and considerations of the Law Commission, have the Government come to the conclusion that that is something which has to be accepted? Have they come to the conclusion that nothing can be done about the widow's pension? If so, I for one feel that it would be much better to say so now.

I follow that up by asking this question. Can the Solicitor-General tell us what the Government propose to do, assuming—I make this assumption in their favour for the purpose of my argument—that they remain for a little longer in a position to do so? What do the Government propose in the way of a timetable for their legislation to meet the point about which we are all talking, and what have they in mind to put in the legislation? It would be helpful to the House to know this.

Mr. Speaker

Order. With respect to the hon. and learned Member, even on the eve of a wedding, he cannot debate in detail hypothetical legislation. He must link what he has to say to the Amendment.

Mr. Percival

Yes, Mr. Speaker. I link it this way.

Although I have said that, in principle, I support the Amendment, I would like the answers to the questions which I have posed before I finally commit myself as to whether I can support the Amendment. It depends upon what the Solicitor-General is able to tell us whether we are content with having a fixed time or whether we would prefer to have this little means of bringing pressure. If I may leave my remarks in that way so that I am not too far out of order, I am obliged to you, Mr. Speaker, for giving me that opportunity. I am aware that I am asking a lot, but I put my questions widely to give the Solicitor-General the opportunity to say as much as he possibly can.

12.15 p.m.

Mr. Worsley

Like the majority of hon. Members who have contributed to the debate, I am concerned about this Lords Amendment. I do not think that it is really something between the people who are, in general, in favour of the terms of the Bill and those who are against it.

It seems to me that whatever one thinks about the Bill, all of us would wish that the uncertainty and the period in the law when an old Act is operative and a new one has been passed should be as short as possible consistent with the bringing in of the short Measures, about the protection of the wife in particular, to which we have all referred. There is, therefore, no attempt by those of us who are concerned about the Amendment to delay the bringing into operation of this new law for its own sake.

I do not question the absolutely genuine undertaking given by the Lord Chancellor and accepted by the sponsors of the Bill of an intention to bring in legislation in the terms of the Law Commission's Report. I do not want to discuss—indeed, I cannot within the rules order—what that Report says and, above all, what it leaves out.

What I do say is that particularly in an election year, there can be no sort of certainty that intentions, however sincere—and I do not question the sincerity—will be carried out. We have had during the past year, a non-election year, major Measures of proposed legislation which the Government have dropped. Every Government drops such pieces of legislation in any year. There is, therefore, no certainty.

What worries me about the Amendment is that it breaks the link between the Bill and the proposed legislation. At the moment, there is an undertaking by the Lord Chancellor not to bring the Bill into operation until that other legislation is introduced. If, instead of doing this, we merely insert a time scale, the link will be removed. The hon. Member for Yarmouth (Dr. Gray) said that this was something which would put pressure on the Government to give time for the other legislation. That, however, is the exact opposite of the truth. I think that the hon. Member is very naïve if he thinks that a time scale will put pressure on a Government to give time. I think that it is the other way round.

The fact that this legislation will come into operation willy-nilly irrespective of whether this House legislates again before 1st January, 1971, would, if there were a situation that something had to be dropped, be a very good reason for the Government—whatever Government it may be—to push out the other piece of legislation and let the Bill come into operation without the new legislation.

In other words, by breaking the link which is provided by the existing Clause, and which we in this House inserted, we shall remove any certainty that the Government will legislate. Therefore, there could well be the situation, which no one in this Chamber wants, that the Bill could come into operation without the supporting legislation.

I should, therefore, have thought that overwhelmingly the case was for the Bill as it left this House. There was then a clear and direct link between the two pices of legislation. There was an undertaking. Suppose, for sake of argument, that the other piece of legislation was brought in at the beginning of next Session and that it goes through in the new year. This Bill would get into operation earlier, perhaps, than 1st January. I am not trying to delay the Bill, but I think that we made a mistake in breaking the link which we put in earlier between the two pieces of legislation.

The Solicitor-General

At this late stage the debate has turned to a theme which has been touched upon in one way or another almost throughout our consideration both of this Bill and of its predecessor. I do not know of any part of the subject which has given me greater concern than the desirability of dovetailing, as satisfactorily as one can, changes in the law of divorce with appropriate safeguards, financial safeguards in particular, to ensure that those affected are treated with reasonable fairness. This has been a matter that has exercised hon. Members on both sides of the House throughout our consideration of this matter and very properly.

The whole matter raises issues of real and authentic difficulty. The reason for the difficulty is perfectly simple. It is that it is almost impracticable and may from many points of view be undesirable that Parliament should approach dealing with changes in the law of divorce and financial provisions and pensions in a compendious Measure. The outcome of any such consideration by Parliament would in all likelihood be unwieldy if contained in a single Measure; it would have all sorts of objections in content and character because of its scope which I should have thought could very easily and reasonably be sustained.

If we acknowledge, as I think the House must, that there is the greatest possible difficulty in dealing with these important matters compendiously one is driven to the alternative which is to find the best way of dovetailing the different parts of the process. That has been the Government's concern throughout. One cannot get perfection in a matter of this kind but I would hope that the view would be taken by the House that a satisfactory outcome, on the whole, within the inescapable limitations to which I have referred, has been achieved.

It may well be that we are very near the point of my hon. Friend's Bill becoming law. It does so in this context, as a matter of narrative—of my noble Friend in another place having made it clear on Third Reading that the forthcoming Bill would be in substance what the Law Commission has proposed—and the House has been made aware, of course, of the Law Commission's proposals—and, secondly, that it will be introduced soon. That affords a satisfactory context and as satisfactory a context as is available in which the House can feel justified in giving final approval to this Amendment.

As we all know, one cannot go further than I have in presenting the matter. I am going to the limit imposed by commonsense and constitutional practice. Of course, one cannot say for certain that such and such a Measure in future will reach the Statute Book. It would be an outrageous proposition and not consistent with our methods. What I am proposing on behalf of the Government is the best that any representative of a Government could offer.

The same considerations apply to the matter of pensions. The question of the effect of my hon. Friend's Bill, if it becomes law, upon pensions arrangements is receiving the most careful consideration by the Government and is continuing to receive that consideration. There must be an element of mutual trust in our treatment of these matters on both sides of the House, and I am sure there is. I cannot go further than to say that this matter is receiving the Government's careful attention.

The hon. Member for Chelsea (Mr. Worsley) suggested that there might be some objection to introducing a fixed time provision into the Bill and that we were in this fashion breaking the link which exists between this Bill and future legislation on these relevant themes. I would concede that there is obviously a technical change. There is in legislative terms a breaking of a developing connection between the content of this Measure and future legislation. I think that he is right, but I cannot do better than to say that, here again, this matter must be dealt with on a basis of trust.

The House must make its choice on the issue which the hon. Member for Chelsea put forward. It seems to me that to apply in our legislative processes the kind of reasoning which the hon. Member so clearly presented is to defer change to the Greek kalends. He does not desire that and I do not suggest for a moment that he does or that he made anything other than a very restrained and helpful contribution to our discussions. The fact remains that, if we are dealing with a variety of matters which it is impracticable and undesirable to deal with compendiously, if we do not put a time limit in these provisions and say when it will take effect, we run the risk of postponing a final outcome indefinitely. I do not believe that the hon. Member would wish that to be the result, but it is, I think, the logical conclusion of the argument he addressed to the House.

In these circumstances, therefore, I hope that the House will think it appropriate to give its agreement to this Amendment. In one sentence, when expressing that advice, may I add that it will be in our minds, at this not unhistoric point in the history of this matter, how much on any showing is due to the efforts and skill and integrity which my hon. Friend and those working with him have shown in their treatment of the Bill.

12.30 p.m.

Mr. Abse

I believe that the Law Commission would regard it as a fundamental breach of faith, of which a Lord Chancellor such as ours would be incapable, if we did not have—this cannot be said by the Solicitor-General, because of constitutional propriety—within the next Session a Bill in the form, or approximately in the form, which has already appeared in the Law Commission's Report.

The concern which has been expressed by the hon. and gallant Gentleman for Lewes (Sir T. Beamish) and others has, together with the activities of those who have been for and against the Bill, acted as a catalyst to make certain that the problem which concerns us all should be wrestled with and should emerge, as it will emerge, in that Law Commissioners' Bill.

The hon. and learned Member for Southport (Mr. Percival) put his finger on the problem which all of us must insist that the Government continue to grapple with—the problem concerning pensions. I hope that, whatever views may have been expressed during these debates, there will be complete unanimity that we should maintain pressure, which all of us believe is required, to ensure that justice is done to those who may as a consequence of divorce lose a widow's rights.

When we are arguing as to what should be the date or whether it should be indefinite, let us remember that, if, as I expect, within a matter of minutes the Bill becomes an Act, by stating a certain date we are releasing from human bondage tens of thousands of couples who have been waiting expectantly for the Bill to become an Act. I do not believe that the House would want them to allow to remain in incertitude, and further suspension. Whatever diffidence the House may have about the Bill as a whole, I do not believe that it would want the agony of these people, which has continued for so many years, to be prolonged.

I trust that within a few minutes tens of thousands of people will find that this Parliament has passed a Bill which will mean that, although there may be many thousands of divorces after 1st January, 1971, there will be tens of thousands of long-overdue marriages helping to stabilise family life.

Question put and agreed to.