§ Order for Second Reading read.9.40 am
§ The Solicitor-General (Sir Patrick Mayhew)
I beg to move, That the Bill be now read a Second Time.
My short speech will not reflect the diversity of family law matters that are covered in the four parts of the Bill, the first three of which deal with separate Law Commission reports. I take this opportunity to express my gratitude, which I am sure is shared by the whole House, to both the English and Scottish Law Commissions for all their hard and magnificent work, which is ably illustrated by parts I to III in respect of law reform.
Part I gives effect to the recommendation of both commissions that is contained in the report entitled "Custody of Children — Jurisdiction and Enforcement within the United Kingdom". This part, by providing uniform jurisdictional rules for the determination of custody disputes and the procedural means whereby a custody order may be recognised, registered and enforced throughout the United Kingdom, will deal with the internal United Kingdom problem of child abduction.
Part II gives effect, with modification, to another joint report entitled "Recognition of Foreign Nullity Decrees and Related Matters". This is a technical law reform matter and is designed to assimilate the grounds for the recognition of foreign nullity decrees to those grounds, which are also modified by part II, for the recognition of divorces and legal separations that are contained in the Recognition of Divorces and Legal Separations Act of 1971.
Part III carries out the recommendation of the English Law Commission that is contained in its report entitled "Declarations in Family Matters". This part provides a new code for England and Wales for the granting of declaratory relief in matters of matrimonial status, legitimacy, legitimation and adoption.
Lastly, clause 64, in part IV, which relates to miscellaneous matters, enlarges the rule-making powers of the Matrimonial Causes Rule Committee to enable that committee to make costs rules which distinguish between legally aided and privately funded cases. Only with these wider powers can scales of costs be prescribed separately for legally aided cases as the legal profession desires. The clause was amended in another place and I understand that both branches of the legal profession are now content with this provision. Clauses 65 to 67 make technical amendments to other legislation dealing with international and criminal aspects of child abduction that will make them more effective.
§ Mr. Nicholas Brown (Newcastle upon Tyne, East)
The Solicitor-General's Second Reading speech struck a nice balance between general explanation and detail, and there is a considerable amount of detail in this technical and complicated measure. The Bill is welcome and I have no intention of trying to delay its passage through the House, at least not unduly.
I shall take this opportunity to say a few words about family law, including matters that are in the Bill and others that are not and perhaps should be. The Bill's title may raise hopes in some quarters which its contents will fail to meet. For example, the Law Commission has recently 1441 reported on illegitimacy. In summary, it recommends that the legal consequences of illegitimacy, as they affect the non-marital child, should be removed from the law. I support that recommendation. In a written answer of 4 June the right hon. and learned Attorney-General promised that legislation would be introduced "at the earliest possible opportunity", in response to the recommendation. That legislation does not appear in the Bill, but perhaps that is something that we shall be debating in the next Session, perhaps when dealing with a family law reform Bill. At a later stage we may consolidate such a measure with this Bill.
Equally disappointed will be the supporters of the family courts campaign. The Bill does not have anything to do with family courts either, but there are good reasons for initiating family courts. Such a system would unify and thereby simplify various jurisdictions for family affairs. It would provide a vehicle to introduce simpler and quicker procedures which emphasise conciliation and the desirability of agreement between the parties. It would be possible to provide adequate conciliatory and welfare services and to remove family matters from courts that are accustomed traditionally to dealing with contested matters, and, in the case of magistrates courts, criminal matters.
A family court system would reflect the increasingly sympathetic approach to divorce which takes such matters beyond those which are normally considered by courts of law. Family courts exist and function successfully in Austrialia, New Zealand and some parts of the United States of America. Our present system creates more bitterness than is necessary and encourages people to spend money, sometimes public money, via the legal aid scheme on lawyers. I an not convinced that good always comes of spending money on lawyers, and certainly not in the realm of family law. However, the Bill does not deal with family courts.
The Bill is based on the work of the English and Scottish Law Commissions and I associate myself with the Solicitor-General's remarks about his gratitude to both commissions for the work. In 1981, in its 15th annual report to Parliament, the commission stated:It becomes very difficult for us to plan our work if the Government does not express a view on recommendations made by ourselves and others within a reasonable time after delivery of the reports containing them.It continued:A number of important law reform proposals made by other bodies during the past 10 years or so have not been implemented. In some instances it is not even known whether they are accepted by the Government in principle.Things have not improved. In its most recent report, the 20th, the commission lists a further 15 reports, two of which go back to 1981, which have not resulted in Government action.
The House recently debated the Lord Chancellor's salary increase. Whatever that substantial rise was based on, it was not productivity.
§ Mr. Brown
The Solicitor-General seems to object to the idea of productivity improvements in the Lord Chancellor's Department, which should certainly take place in the higher echelons. I cannot understand why he takes such a view.
The main argument that is usually advanced for delaying the recommendations of the commission—some 1442 of them are highly technical but non-controversial— is that parliamentary time cannot be found. This excuse is advanced by a Government who intend to take the Bill through all its stages in this place this morning. The House does not delay any non-controversial legislation that is based on the work of the commission. Nor has such legislation been unreasonably treated in another place. It is the Government's failure to bring such matters to Parliament which is the major obstruction to law reform.
The Bill is highly technical and perhaps it needs to be. I feel, however, that it makes heavy weather of some fairly simple matters. Would it not have been possible in some way to treat the separate jurisdictions in the United Kingdom as different contracting countries for the purposes of the Child Abduction and Custody Act 1985? The Solicitor-General will recall that I moved an amendment to that measure when it was in Committee and that the Attorney-General said that there was a technical objection to it. He said that it contained a "fatal flaw" and claimed that it was inconsistent with section 25(1)(b) of the 1985 Actbecause once the United Kingdom custody order has been registered, that clause would cancel it. That is a technical reason".—[Official Report, Standing Committee F, Tuesday 9 July 1985; c. 4.]I am not entirely convinced by that argument. I have to say, however, as I did in Committee, that there can be no political objection to taking the route that is outlined in the Bill instead of that set out in my amendment.
The Bill is divided into four separate parts, and part I gives effect to the recommendations of the commissions on the recognition and enforcement of custody orders between separate jurisdictions in the United Kingdom.
The only matter that I wish to raise on part I arises from clause 42(2) and (3). Those provisions mean that, once a child's parents are divorced in one part of the United Kingdom a custody order cannot be obtained in another part of the United Kingdom unless an order as described in this section is first obtained from the court in which the divorce was obtained. Thus, if a child's parents divorce in England or Wales and the child subsequently becomes habitually resident in Scotland it would be necessary to obtain an order from the English or Welsh court. That does not appear to be the case in the converse situation as the exclusion does not apply if the child is either habitually resident in England, Wales or Northern Ireland, or present there and not habitually resident in another part of the United Kingdom. There is no similar provision made in respect of Scotland, so there appears to be a significant difference between the respective jurisdictions.
However, significantly, if the special provision in respect of England, Wales and Northern Ireland is correct, it makes the exclusion redundant. In effect it is saying that, where there is jurisdiction, the exclusion will not apply. In that where there is no jurisdiction the exclusion is superfluous, I find the purpose of that exclusion hard to define. Will the Solicitor-General deal with that point?
Part II deals with the recognition of the validity of divorces, annulments and legal separations. It would not be right not to refer to the one aspect of this part which has occasioned public comment — the issue of the Moslem family law ordnance. Clause 54 states:'proceedings' means judicial and other proceedingsand deals with that. Under the Pakistani Moslem family law ordnance, provision is made for a procedure to replace the talaq in Moslem law. A talaq is a simple 1443 pronouncement of divorce by the husband. It is not obtained through proceedings, but under the ordnance it is held to be so obtained. A declaration of divorce is made and the wife and a Government official are notified. After notification there follows a period of 90 days in which the official may, but need not, attempt to reconcile the parties. At the end of the period, in the absence of any reconciliation, the parties are considered to be divorced.
The issue is whether that procedure merits recognition on the grounds of the residence, domicile or nationality of only one party to the marriage or whether it should be recognised only if both parties are domiciled in Pakistan and neither is habitually resident in the United Kingdom. The question is not whether we should recognise Pakistani law, but what limits should be placed on the jurisdiction of that law. Should a Pakistani national habitually resident in the United Kingdom and married to a United Kingdom national be able to obtain a divorce in that way? Should a United Kingdom national married to a Pakistani national habitually resident in the United Kingdom by going to Pakistan be able to obtain a divorce in that way? If not, perhaps proceedings should be defined in order to exclude that possibility. The principal objection to a talaq is that it discriminates against women because the procedure is available only to men. If a Moslem woman wants a divorce she must initiate judicial proceedings.
Part III is based closely on the Law Commission's declarations on family matters. I can find nothing objectionable in it, not even clause 61 which must be largely of historical interest.
Part IV is entitled "Miscellaneous and General". Clause 64 deals with the power to make rules of court. It may be thought to be unexceptionable, but it provides:Rules of court made by the rule-making authority … may amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court.Is there any precedent for empowering an extra-parliamentary body to make by amendment or to repeal statute law?
Although the Family Law Bill is tortuous and is a roundabout way of achieving certain objectives, it deals with an important matter and I do not wish to delay its enactment unduly.
§ The Solicitor-General
I am grateful for the welcome that the hon. Member for Newcastle upon Tyne, East (Mr. Brown) has given the Bill and for his kind words about the Law Commissions. I note his disappointment that the Bill, which is not insubstantial, does not do more in one fell swoop than implement the provisions of three substantial reports of the Law Commissions.
On the reform of the law relating to illegitimacy, he and those whose interests he properly represents will not be long disappointed. The hon. Gentleman will know that the Lord Chancellor's Department has issued a consultation paper on family courts. The period of consultation expires at the end of this month and my right hon. and noble Friend looks forward to considering the representations made during that consultation period. I must reply to the 1444 hon. Gentleman's friendly criticism of the Lord Chancellor's productivity. The House will accept that he has been the most vigorously law reforming Lord Chancellor this century.
The hon. Gentleman raised many detailed questions and he will not expect very detailed replies. On his point about clause 42(2) and (3), which relates to custody orders, I must say that Scottish law, from which we have learned, adapted and adopted so much, is different and imposes technical requirements which have had a significant role in the formulation of clause 42.
On part II, the hon. Gentleman rightly drew attention to the discriminatory effect of the talaq and other informal divorces against women. These are complicated and difficult matters. The Bill's policy is to take a more restrictive approach in respect of divorces obtained other than by judicial or other proceedings. It takes as its basis the present law of recognition of such informal divorces contained in section 6 of the Recognition of Divorces and Legal Separations Act 1971, but it is more restrictive than that. Informal divorces will be recognised only if granted in the country where both parties to the marriage were domiciled or where a party to the marriage was domiciled and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid. No such decree will be recognised if one party or both partes have been habitually resident in the United Kingdom for at least a year before the divorce was obtained.
In addition, clause 51 provides grounds on which the court may refuse to recognise informal divorces because there is no official certificate certifying that the divorce is effective in the country in which it was obtained or where one of the parties was domiciled in another country, but there is a certificate that the divorce is recognised as valid under the law of that country. The Bill's policy is the necessity and desirability to have some objective certification or assurance of the validity of the relevant divorce.
Lastly, under clause 64, the hon. Gentleman asked whether there is precedent for the formulation that gives to the Rules Committee power to amend statutory rules in the terms that the hon. Gentleman accurately quoted. The answer to his question is yes. The matter was gone into at considerable length in another place. There is precedent, which is very tightly controlled and restricted in this Bill. Nevertheless, it is desirable. The alternative is that main legislation would be required whenever minor amendments needed to be made.
I hope that I have dealt adequately with these matters and that we may now proceed.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House. —[Mr. Durant.]
§ Bill immediately considered in Committee; reported, without amendment.
§ Motion made, That the Bill be now read the Third time [Queen's Consent, on behalf of The Crown, signified.]
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed, without amendment.