HL Deb 02 July 1976 vol 372 cc969-79

12.29 p.m.

The Earl of SELKIRK

My Lords, I beg to move that this Bill be now read a Second time. When I moved the Second Reading of substantially the same Bill last December, I said that the honourable Member for Argyll, Mr. MacCormick, was intending to use his place in the Ballot to introduce a similar Divorce Bill in another place. This has now happened. We now have in front of us the Divorce (Scotland) (No. 2) Bill, which is in fact substantially the same as the Bill we have already seen. In fact, this is the third time that I am moving the Second Reading of this Bill in one year and four days, and it has in fact been on the Order Paper of this House 10 times during that period. In these circumstances, I rather suspect that it would not be against the wishes of the House that I should be reasonably brief. Perhaps it would be sufficient if I were to say this. This Bill lays down the irretrievable breakdown of marriage as the sole basis for divorce. It establishes certain factual situations on which the court is entitled to grant a decree and it makes certain consequential financial arrangements. I think, however, that I should like— as this is a most important subject to all citizens of Scotland—to lay down the purposes we have, and they are so admirably laid down in the words of the Scottish Law Commission in 1967 that I should like to read them. They are: To support marriages which have a chance of survival and to give a decent burial with the minimum of embarrassment, humiliation and bitterness, to those which arc indubitably dead. My Lords, if any noble Lord wishes to ask questions I shall be pleased to answer them, but perhaps I might now turn to the changes in the Bill which have been made in the course of discussions in the other place. The first is at the end of Clause 1, in subsection (6). There the burden of proof is changed from the criminal standard of proof beyond reasonable doubt to proof on balance of probability. The basis of the (shall I say?) semi-criminal standard of proof which was formerly required goes back to the Reformation. At that time to commit adultery was something very close to a crime and it was treated in substantially the same way. Nowadays I think this is wrong, and I am quite certain it is right that the proof should be on balance of probability.

The second point is in the second clause of the Bill, dealing with reconciliation or chances of reconciliation. Under the first subsection the court is entitled to continue the case where it thinks there is a chance of reconciliation. This is strengthened. The court is now placed under an obligation to continue any case which comes before it if it thinks there is a reasonable chance of reconciliation. I am sure this is right. I think it is a much more useful way of doing it than, for instance, making the solicitor ask his client formally, "Have you considered reconciliation? ", which I regard as a substantially useless thing to do.

There is a third amendment, and that is a new Clause 8. This is quite an important change in the Bill. There are three points which I will bring out in this. The first is that the limits on aliment are now increased in regard to the pursuer from £5 a week to£25 a week, in regard to a child from £1.50 a week to £7.50 a week. This I am sure is right, and in line with the changed value of money. The second point is in regard to the Sheriff Courts (Scotland) Act 1971. This will now be dealt with in the new summary cause procedure—and I am very glad to see the learned sheriff, the noble Lord, Lord Wilson, here from Strathclyde. This is in line with criticism which has been made by the Scottish Law Commission, the Law Society of Scotland and the Finer Committee that the procedure was too elaborate; this procedure will be much less elaborate. Finally, under this clause the Lord Advocate may by Statutory Instrument increase the limits of aliment in line with inflationary forces, if they should continue. I am sure that is right. This new procedure in regard to summary cause procedure will come into operation, I am told, on 1st September, and the Bill, if it is agreeable to your Lordships, will come into operation on 1st January 1977.

There is one Amendment I will move, and I think I should mention this because the Committee stage is to take place next Thursday evening. That is a technical question in order to preserve and make sure that there is reciprocity between England and Scotland in enforcing maintenance orders. This, I think, is right and proper, and we can cleat with this when we come to Committee stage. My Lords, I would add only this. I have been trying to help with this Bill now for 12 months. I have never had any letter of abuse or criticism, but I have had a number of letters giving every encouragement to proceed with this Bill. In these circumstances, I beg to move.

Moved, That the Bill be now read 2a.—[The Earl of Selkirk.]

12.35 p.m.


My Lords, your Lordships, having already given your assent to an earlier Divorce Bill introduced by the noble Earl, Lord Selkirk, and having listened to his introductory speech on the present measure, will be familiar with the concepts which underlie the present Bill and with the changes which it will make in the existing system of Scottish divorce law. As my honourable friend the Under-Secretary of State for Scotland said in another place during the Second Reading of this Bill, the Government have a broad sympathy with the principles embodied in it and want to see it make progress. The Government believe that a piece of legislation of this kind, which raises matters of vital social, moral and religious concern, should be the subject of free Parliamentary debate at all stages, which can best be done by means of a measure without formal Government sponsorship.

I think it worth mentioning, though, that this Bill, has the support of a large number of representative bodies in Scotland—foremost among them the Church of Scotland—and that public pressure in favour of it, as the noble Earl indicated, has been very strong indeed. It has then, I feel, a very real claim on your Lordships' support. I should like also to give your Lordships notice at this time that the Government intend to put down certain Amendments to the Bill at Committee stage. The details of these Amendments will be explained more fully at that time; but briefly they are intended to put into effect certain recommendations made by the Scottish Law Commission in its recent Report on Liability for Adultery and the Enticement of a Spouse, which was published on 23rd June—that is, after the Bill had received its Third Reading in another place. These recommendations, which were put forward after the circulation of a consultative document to a large number of organisations and representative bodies, are aimed in particular at ending the special liabilities to which a paramour in a divorce action is at present liable under Scots law. These liabilities, which may include the payment to a husband of damages for patrimonial loss, being cited as co-defender in a divorce action and the obligation to pay damages on other than the normal principles governing awards of expenses in civil litigation, are, in the view of the Commission, no longer in line with the realities of present-day society, and accordingly the Government are proposing to take the opportunity afforded by the Divorce Bill to modernise the law in these respects.

12.38 p.m.


My Lords, I should like to congratulate my noble friend Lord Selkirk upon his persistence in bringing before us a Bill of this kind. As he has reminded us, this is the second time in this Session we have seen this Bill. We are grateful to him for having described to us this morning the differences, that is to say, the changes, that have been made since the Bill was introduced in another place. Your Lordships had an opportunity to consider the drafting as it was when it was first introduced into the other place, and to take it through its various stages in this House; then my noble friend withdrew it in order to see what happened in another place.

It has been clear, from the discussions which we have had in this Session and also when my noble friend introduced a similar Bill in the last Session, that there is no active opposition in your Lordships' House to the principal proposals in the Bill. As my noble friend said, it is based on the principle that the irretrievable breakdown of marriage should be the basis of divorce, and that in future the law in Scotland should recognise the situation when a marriage is dead, while doing all it can to support marriages that can endure.

This Bill has had the support of the Church of Scotland, the Scottish Law Society, and the Scottish Law Commission. I hope that the changes being suggested by the Government will simply bring up to date—if they are acceptable to your Lordships' House, and we shall study them with care when they come forward—the suggestions of the Scottish Law Commission. The law on divorce in Scotland has, in recent years, been different from the law South of the Border, and this has caused many problems where families, or members of the family, have been domiciled in England and in Scotland. I know of a number of families who will be much relieved when this Bill is enacted if, as seems probable, it will be, because it will end distressing situations arising from the fact that the law at present is different South of the Border from North of the Border. The Bill will bring the two codes of law, Scottish law and English law, much nearer together on the subject of divorce.

There are some who have pointed out that in Scotland since the equivalent Bill became law in England and Wales, there has been a marked increase in the number of divorces. But I would point out to your Lordships that that was to be expected because there were a number of marriages which had ended, which had broken down many years ago, and where the spouses were living apart but were not prepared to seek divorce because of all the distress and pain that could cause to other people, in the way in which such divorces had to go through the courts. I expect that in Scotland there may well be a period when, for the same reason, there will be an increase if this Bill, as I expect, goes through. There has been some anxiety that this Bill could cause more marriages to break up, but I believe that that anxiety can be allayed because the Bill will be dealing with dignity, and without much unnecessary pain and distress, with marriages which are over already; marriages which have broken down and which would, had this Bill already been in force, have led to divorce in the past.

Personally, as you will realise and as I have said on previous occasions when the Bill has been before us, I am glad to see the Bill going through. However, I would remind your Lordships that the attitude of my Party from this Bench is that this is one of those subjects on which we do not seek to influence the views of Conservative Peers as to whether they should support or oppose the Bill.

12.44 p.m.


My Lords, we are indeed in debt to the noble Earl for his persistence in the presentation and promotion of this measure, which I hope will have a speedy passage through your Lordships' House. I would not dream of boring you, or indeed myself, at this hour on a hot Friday by covering any of the familiar ground which has been covered in debate over the last decade, particularly since the presentation of the English Bill in 1969, but there are two points which ought to be made so far as the history of this measure is concerned.

The first point—and I hope that your Lordships will not feel that this is to flog a dead horse, or to seek to rake over dead ground, a sterile exercise at the best of times—derives from the historical circumstances of the law of divorce in Scotland. For many centuries prior to 1937 the Scottish law on divorce was, in the view of many of us, rather more sensible than that in England. Indeed, it had been so I think since the Reformation. Then, in 1937, with the passage of the Matrimonial Causes Act of that year, England, in the view of some of us, went ahead.

The point is that when that happened in 1937 the situation was restored more or less immediately with the passing of the Divorce (Scotland) Act 1938, which again put the law in the two countries of the United Kingdom more or less on the same footing (subject to certain details which are of no particular moment), and it remained thus until 1969. Then the law in the two parts of the United Kingdom again diverged significantly. That may have been inevitable, but unlike 1937 and 1938 almost seven years have been allowed to roll past, and in Scotland the law is still unreformed. If it is accepted that the reform effected for the English in 1969 was for the good, and if it is accepted that it is undesirable that in this field there should be wide divergence in the law operating in the different parts of the United Kingdom, this delay is surely quite intolerable and, I should have thought, quite unacceptable. That is the first point.

I think that the questions which I would put to the Minister arising out of this point are these: Do the Government accept that in relation to divorce it is desirable that the laws should be on the same general footing in Scotland and in England, subject to our traditional differences in detail of procedure and the like? If so, does the Minister agree that it is deplorable that we should have had to wait seven years for remedial action ? I hope he will not say, " Well, it was a Private Member's Bill " because of course it is well known that there are more ways than one of killing a difficult cat.

The third question is, in the light of the much more effective handling of an analogous situation some 40 years ago, has the Minister, along with his right honourable friend and his right honourable and learned friend, reviewed the matter with a view to avoiding similar delays arising in other areas of equal importance to the people of Scotland? I imagine that he would readily agree that to neglect such a review, after the regrettable history of this situation, would be the reverse of competent government. I venture the view somewhat tentatively that if, over the last decade or two, there had been more meticulous attention to this kind of thing by Scottish Office Ministers there might be less political restlessness in Scotland today.

The second point is a short one, and it arises on jurisdiction. I have a personal interest to declare here because I am the head of one of the sheriff courts in Scotland. In Scotland the Court of Session, the Supreme Court. has exclusive jurisdiction in actions of divorce. In England, as I understand it, the Lord Chancellor has the statutory power to designate county courts which will have jurisdiction in undefended actions of divorce. I venture to regret that there is no provision to an analogous effect in this spirit. It is of course a matter which can be raised on Committee, but really the case is unanswerable for giving similar powers to the Secretary of State for Scotland in relation to the sheriff courts in Scotland. The hulk of the 50 or 60 sheriff courts in the country could absorb the work without difficulty. No one would suggest that Scottish sheriffs are not competent to deal with this kind of business and it is in my view more than somewhat absurd that so much judicial time should he taken up in the Supreme Court dealing with uncontested actions of divorce.

There are, it is true, one or two of the larger courts, including the one over which I preside, which could not immediately cope with this work with their existing resources, but there can be no dispute—and I should have thought that the Government would regard this as of significance at this time—that if there were the extension of the jurisdiction which I have suggested, there would be some saving of public expenditure in relation to legal aid. Subject to those two points which I commend to the Minister, I hope the Bill will have a speedy passage through this House.

The Earl of LONGFORD

My Lords, I remember that after a debate we had on abortion some years ago a noble Lord came to me and asked, " Is this a Catholic monopoly or are heretics allowed to take part ?" I ask the same question, but rather differently, today: may someone who is not a Scot take part and someone who, for that matter, is a Catholic and therefore not predisposed to be in favour of easy divorce? Unless I am ruled or voted out of order, I will adduce one or two thoughts. Incidentally, I have six Scottish grandchildren, which perhaps gives me more qualifications to take part than some of those who normally take part in Scottish debates. Be that as it may, I gather that the noble Earl, Lord Selkirk, wants to facilitate divorce.

The Earl of SELKIRK

I did not say anything of the kind, my Lords.

The Earl of LONGFORD

My Lords, we were told by the noble and learned Lord, Lord Wilson of Langside, that the Bill would bring divorce closer to the English situation. Is that wrong?


My Lords, that is certainly my understanding; it will bring the law in the two countries, broadly speaking, on to a similar footing. That is what I said.

The Earl of LONGFORD

My Lords, I refuse to stand corrected by the noble Earl, Lord Selkirk, until he shows that I am wrong because if it is going to bring it closer to the English situation, it will facilitate divorce. Nobody doubts that the English law has facilitated divorce and nobody doubts that it has led to a great increase in divorce. We had a debate on the family promoted by the right reverend Primate only the other day and while he did not attack the English divorce law, he must have agreed, as everybody else must agree, that the legislation of this country has made divorce much more common; not only easier but more common than it was before and very much more common than anybody expected in this House when the Act was passed. I am simply asking the noble Earl whether this will not make divorce easier in Scotland. The noble Earl said that we could accept that the English law had been beneficial. I do not accept that. However, from the point of view of clarification, will this Bill not make divorce easier and, if so, is the noble Earl in favour of that?


My Lords, with the leave of the House, I will respond to the three specific questions which were put to me by the noble and learned Lord, Lord Wilson of Langside. First, he asked whether I thought that the time lapse was disgraceful and my answer is that I could not accept that proposition. I attempted to explain previously that the pace of legislation of this kind should be related to the rate of public and social acceptance of it on the Scottish scene and in my view the pace and timing is about right. The noble and learned Lord asked, secondly, whether I did not think that the speed of legislation generally was too slow and I fully accept that that is a valid point of view. I doubt, however, whether it has any particular relevance to the Bill that is before the House. As to the noble and learned Lord's third point, about the possibility of these divorce cases being taken in the sheriff courts, I must point out to him that this was discussed in the other place—indeed, it was voted on there—and the decision was not to proceed at that point.

The Earl of SELKIRK

My Lords, I thank the noble Lord, Lord Kirkhill, for his support and I am grateful to him. I have little doubt that the Amendment which he is to bring forward, and about which I know something, will strengthen the Bill. I also thank the noble Lord, Lord Campbell of Croy, for the support he gave and for the picture he gave of the general support in Scotland that the Bill will have; I am most grateful to him. I thought that the historical view given by the noble and learned Lord, Lord Wilson of Langside, was extremely interesting and I would only add to it one point, with which I think he would agree; that is, that it was the noble Lord, Lord Walker, in his Minority Report to the Morton Commission, which set the germ from which the present evolution has followed. I think that the other point which he raised has more to do with the noble Lord, Lord Kirkhill, than with me. I have doubts about putting this case to the sheriff court in the initial stages, partly because I think the Bill will require interpretation and partly because, as the noble and learned Lord knows, sheriff courts vary quite a lot. However, eventually it may be that that will happen. Further, I think that the interpretation of the Bill will require to be homogeneous so far as possible.

The noble Earl, Lord Longford, brings advice from Ireland which is always welcome. We in Scotland never have the slightest reluctance in taking advice from anybody, whoever he may be. The noble Earl asked one question: will this make divorce easier? I must admit it is some years since I was in a divorce court and therefore I am not very familiar with what has happened, but from what I have heard in the debate today, the Bill will not make divorce easier in Scotland. I must admit that at the present time it is fairly easy, but I stated in my earlier remarks the object that we had in mind; to strengthen marriages which were worth while and to release marriages which were empty, without humiliation, without degradation and without bitterness. That is the object and I do not think that even the noble Earl, Lord Longford, would disagree that this object is probably worth while.

The Earl of LONGFORD

As the noble Earl has referred to me directly, my Lords, perhaps he will allow me to say that, while objectives of that kind are laudable, in fact all that kind of thing was said when the Act was introduced in this country.

The Earl of SELKIRK

My Lords, I am not prepared to say anything about what is happening in regard to the English measure. I have spoken to the Head of the Families Court to try to ascertain how it was going and he did not seem to think that it was going unfavourably. I would not, other than that, wish to pass any remark at all. I again thank noble Lords who have taken part in this debate and beg to move that the Bill be read a second time.

On Question. Bill read 2a and committed to a Committee of the Whole House.