Schedule 1 (Hansard, 4 May 1973)

§ Mr. MacArthur
I beg to move Amendment No. 8, in page 14, line 40. after 'proceedings', insert: 'or is a respondent and has in his answer included a prayer for relief'. The amendment follows an assurance I gave to the hon. Member for Hackney, Central (Mr. Clinton Davis) in Committee. Its purpose is to place the statutory duty of disclosing the existence of any concurrent proceedings upon a respondent who includes a prayer for relief in his answer. Under paragraph 7 of the schedule the duty is imposed only on a petitioner. In Committee the hon. Gentleman moved an amendment with the same purpose as my amendment, but I was advised that it was technically defective. He was good enough to withdraw it on the understanding that I would invite my advisers to discuss the position with me and see how we could achieve his purpose.
The term "petitioner" would no doubt cover a party other than the original party who sought relief by way of further petition or cross-petition. A respondent who prays for relief in his answer is, for practical purposes, in the same position, and should not escape the duty through a technicality as to the nature of the proceedings.
11.45 a.m.
I apologise to those hon. Members who served on the Committee, because in my undertaking to look at the matter again I suggested that the position was spelt out in more detail in the Scottish schedule, and that it might be argued that for the sake of consistency the same wording should be used. I suggested that my right hon. and learned Friend the Lord Advocate might consider that further. When I found myself in Committee, as at other times, getting too deep in legal waters, I ran for cover—if one can do that at sea—by seeking the protective guidance of my right hon. and 1653 learned Friend and other hon. and learned Members.
In fact, I am advised that my bright idea that we should use the same wording as appears in the Scottish schedule is not feasible, because we cannot import the Scottish terminology since appearances are no longer entered in English matrimonial proceedings. As the provisions must necessarily differ there is no reason in principle to depart from the Law Commission's recommendation that in England and Wales the duty of disclosure should be limited to a party seeking relief. The only extension required to meet the point raised by the hon. Gentleman is therefore one which covers all parties seeking relief, at whatever stage of the proceedings. The amendment achieves that purpose.

§ Mr. MacArthur
I beg to move Amendment No. 9, in page 15, line 39, at end insert: '(1A) In considering the balance of fairness and convenience for the purposes of subparagraph (l)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed or not being stayed'.

§ Mr. Deputy Speaker
With this amendment we are to discuss also Amendment No. 13, in Schedule 3, page 20, line 47, at end insert: '(1A) In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being sisted, or not being sisted ', and Amendment No. 14, in page 21, line 1, leave out 'The preceding sub-paragraph' and insert 'Sub-paragraph (1) above'.

§ Mr. MacArthur
This amendment also arises from the helpful intervention of the hon. Member for Hackney, Central (Mr. Clinton Davis). It inserts a new subparagraph into paragraph 9 of the schedule to expand the phrase the balance of fairness (including convenience) as between the parties to the marriage 1654 in paragraph 9(1)(b). I was advised that the amendment moved by the hon. Gentleman in Committee was technically defective, and he generously withdrew it on my undertaking to reconsider the matter before Report.
The hon. Gentleman's point was that an important element in deciding whether proceedings should be taken in one place or another could in some cases be the convenience of witnesses. Although he agreed that the court might take that into account under the paragraph as it stood, he rightly thought that the matter was too important to be left to chance and that there should be specific provision in the Bill to cover it.
The form of the amendment follows paragraph 77 of the Law Commission Report, in which the relevant factors to be taken into account when the court is deciding on a discretionary stay are mentioned. The commission referred to the connection of the parties or the marriage with either forum and any delay, expense or inconvenience in taking parties or witnesses to another forum. The amendment amplifies the paragraph in respect of those matters and meets the point made by the hon. Gentleman.

§ The Lord Advocate
I would not like it to be thought that the original drafting of the schedule was defective in this respect. The purpose of the amendment is to make it clear that the convenience of witnesses must be taken into account where the exercise of discretion is involved. I was glad that in Committee my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) undertook to take another look at the matter.
I am sure the House will agree that in judicial proceedings the convenience of witnesses must be considered, and it does no harm to make specific reference to this matter in a public general statute of this kind. For that reason the amendment should be accepted.

§ Mr. MacArthur
I beg to move Amendment No. 12, in page 17, line 45, leave out 'relevant' and insert 'matrimonial'.
This amendment should have been tabled in Committee because it corrects a small oversight in the Bill as originally drafted. The error relates to paragraph 11(4) of Schedule 1 which reproduces paragraph 5(4) of the schedule to the Law Commission's draft Bill, with one variation. Whereas the Law Commission's draft was drawn by reference to "relevant proceedings" which were defined in paragraph 6 to mean matrimonial proceedings of various kinds, the current Bill refers directly to "matrimonial proceedings". However, in the last place in the sub-paragraph where the words occur the necessary change was not made in the Bill. The amendment makes the necessary correction and ensures that the same phraseology is used throughout the sub-paragraph. For the sake of consistency I hope that the House will accept the amendment.