Matrimonial Homes (Family Protection) (Scotland) Bill [H.L.]

HL Deb 09 April 1981 vol 419 cc679-719

3.33 p.m.

Report received.

Clause 1 [Right of spouse without title to occupy matrimonial home]:

The Earl of Selkirk moved Amendment No. 1: Page 1, line 8, leave out from ("home") to ("the") in line 9 and insert ("and the other spouse is not so entitled or permitted").

The noble Earl said: My Lords, speaking at the Committee stage, the noble Earl, Lord Mansfield, said that he was flexible in his approach and was prepared to consider the drafting. This amendment is purely drafting. What I am objecting to is, first, that the wording is unnecessary; secondly, that it is not used by any other Act of Parliament nor in the body of the Scottish Law Report; thirdly, that it has the wrong meaning; and fourthly, that it is embarrassing to this House.

First, may I say that it is unnecessary? If your Lordships will look at the first clause of the Bill you will see that it says that the entitled spouse will be called the "titled spouse". This is a little like the geometry teacher who says, "Let us take point 'P' and call it 'Q'." It serves no useful purpose. The meaning there is quite clear and can be made so throughout the Bill. I have suggested in the amendment: and the other spouse is not so entitled or permitted". It could be made clear throughout the whole Bill. I am not attempting to put in the further amendments which will be necessary because I imagine that the Scottish Office would wish to do so if we agree this amendment.

Secondly, this word has never been used anywhere either in other Bills or in the body of the Scottish Law Report, but for some reason which is obscure it has crept into the draft Bill which is attached to the Scottish Law Report. More importantly, this is not the meaning of the word. What does the word "titled" mean? It has nothing to do with "entitled". The word "titled" has only one meaning and that meaning is: a title of honour or nobility. There is no other meaning. And that is what makes it particularly objectionable to this House, for it means that we are legislating exclusively for titled spouses. You have only to think for a moment how this could be used at, say, Hyde Park Corner, where they will be talking of this great reactionary body making laws exclusively for its own benefit. Perhaps I may irrelevantly quote an example of something I heard at Clapham Common, where a gentleman said to another: "Do you know the meaning of the word 'Parliament'? It comes from two French words—'parler', which means to 'speak' and 'mentir' which means 'to lie'." That is the sort of thing that can happen. It is quite ridiculous to expose ourselves to that sort of abuse, and, because I think this word is silly, is an abuse of the English language and is otiose, I beg to move.

Lord Drumalbyn

My Lords, I support the spirit in which my noble friend has moved this amendment. I am not certain that this is the only way in which this amendment could be made. The intention, as I understand it, is that throughout this Bill the words "titled" and "non-titled" should be replaced by "entitled" and "not entitled", which seems sensible. If, because of the possibility of confusion, anybody doubts that, I can recall a Bill which provided a definition of a word and then said, "In this Bill this word will mean so-and-so except where the context requires otherwise". Surely that can be done perfectly easily if it is thought that the word "titled" is in any way confusing.

Lord Scarman

My Lords, may I enter a protest against this drafting? The words "titled" and "not titled" as used in the Bill are not used in the English sense. I was so distressed when I saw this amendment that I did something that I rarely do: I looked in a dictionary and I found that the noble Earl is not quite right in saying that the only meaning of "titled" is a title or an honour. According to the Oxford English Dictionary—and I am glad to say that a large number of Scotsmen still go to Balliol—"title", the verb, means "to arrange under titles or headings", "to attach as a label", "to dignify with a title of rank of honour". In the presence of the right reverend Prelates I hesitate to give an illustration from 17th century English, nevertheless the illustration of the meaning given by the Oxford English Dictionary is a quotation from Milton: that sober race of men"— and that, with the consent of the noble Lord, Lord Avebury, is a reference to us— whose lives religious title them the sons of God". All that that meant, in the language of the modern Prayer Book, was, whose lives religious gave them the description or label of the sons of God". That is the correct meaning of "title". How can one use that word when there is a perfectly good English word, "entitle", which the same dictionary tells me means, "to give a rightful claim to"? That is the sense in which "titled" is being used in this Bill. I remind your Lordships that the mother legislation, the Matrimonial Homes Act 1967, introduced by Lady Summerskill, of course does not fall into this ghastly misuse of our native language. May I conclude by asking whether your Lordships have considered the possibility of a non-titled spouse being married to a titled spouse?

Lord Ross of Marnock

My Lords, I made reference to this on Second Reading or at the last stage in a rather jocular suggestion that we all ought to declare an interest. There were certain embarrassments in the language. When you read the first four lines it is explained that one spouse is "entitled" and then suddenly they become "titled"; and then "not entitled" becomes "non-titled". It is rather silly. There are so many non-applicant spouses, applicant spouses, titled spouses, non-titled spouses, and we want a little bit of simplicity in this Bill. It will mean that they are not entitled and we say that. Why do we manufacture this new suggestion which is so confusing, if not embarrassing, to your Lordships? I support the noble Earl.

Lord Wilson of Langside

My Lords, may I support this amendment for all the reasons stated by all the noble Lords who have already spoken. I do not imagine that the noble Earl, on behalf of the Government, will now resist the amendment. Clearly, the drafting is inappropriate.

3.42 p.m.

The Minister of State, Scottish Office (The Earl of Mansfield)

My Lords, I—mercifully!—was not present in your Lordships' House some time after midnight this morning to hear the debate on the English language that occurred then. Nevertheless, it seems to be continued in your Lordships' House. I am aware of the dissatisfaction of noble Lords from all quarters of the House as to the choice of language which has been adopted in Clause 1 and indeed throughout this Bill. One has to take this in two parts. First, does one agree with the suggestion contained in Amendment No. 1 in effect that the words which my noble friend suggests should be put into this part of the Bill (may I say, in many other clauses in different parts of the Bill) which would require the same type of amendment but frequently in rather different words. I suggest that the use of an abbreviation in the form of some kind of phrase or words—shorthand if you like—is both felicitous and indeed convenient. It is a useful way of avoiding long descriptions throughout the Bill.

If your Lordships are with me on this point, and I hope very much you will be because it makes a piece of modern drafting easier to comprehend and easier for ordinary people to try to understand, if in a proper instance a form of shorthand can be adopted, then the question comes as to whether the phrases "titled spouses" and "non-titled spouses" are appropriate in this context.

I have hinted at moments of this Bill that I was not too enamoured of them myself as English. I have been "scratching about"—if that is not too inappropriate a phrase—to see whether something better could be devised. I am advised by the draftsman that "titled" in Scots law has a meaning, although in the presence of noble and learned Lords I say that with some kind of diffidence.

Nevertheless, this Bill is in the Report stage of your Lordships' House and it has a long way to go before it receives the Royal Assent. I assure my noble friend that I was, am and will remain flexible and I am sure that that goes for the Government. I would deprecate his pressing his amendment for the reasons that I gave in the first limb of my argument. I believe that his drafting is not very advantageous, and that some form of expression would help. If I undertake that the Government will consider yet again whether a better phrase or a word such as "entitled spouse" would meet the Bill better than the present phraseology, then I hope very much that my noble friend will withdraw his amendment.

The Earl of Selkirk

My Lords, I am grateful for the trouble that the noble Earl has given in reply. But it is not good enough to say that he will consider it. Frankly, I do not want to press the House to form an opinion but I really have no alternative on this. There is no need whatever for a term of art. The Bill was written, as the noble and learned Lord said, in 1967 without any term of art in it. I have not put down all the consequential amendments, because I thought the noble Earl would want to do that. I cannot see the point of going on with this.

As for using felicitous expressions, anything less felicitous than the one which the draftsman already put in gives me no confidence that a draftsman will do any better in the future. This House ought to come to a clear-cut decision and say that this word will not do and the Bill can be perfectly well drafted without it. This is only a drafting amendment; I am not constituting the policy. The policy of the Bill remains unchanged. I think that we should divide.

The Earl of Mansfield

With the leave of the House, my Lords, I fully understand that many noble Lords object to this phraseology. It is drafting that we are talking about. If my noble friend says that he has no confidence in the flexibility of the Government, I hope that he has read the Marshalled List of amendments beyond his own at No. 1 and seen, if I may say so, just how many amendments have been tabled in my name to reflect the very genuine and constructive matters which were put to the Committee, both by him, the noble Lord, Lord Ross, and other noble Lords. I hope it will become apparent that we have gone a long way to meet many of the valid and constructive suggestions which have been made in Committee stage.

With respect to my noble friend, to take what is really a tautologous point and to say that the Government are not being flexible, is unfair. What I have said is—and my noble friend chooses to disregard this—that I believe very strongly that in order that we do not make a Bill more cumbersome than need be, there should be some expression which is handy and convenient and easily understood and shortening in its effect. I have tried to say that the amendment that my noble friend seeks to write into the Bill will not have that effect because it will have to be repeated throughout the Bill and the same form of words will not be particularly appropriate throughout the Bill.

I have undertaken to take this away again. I have said—and I do not wish to repeat myself—that there are plenty of other parliamentary occasions when one House or other can reconsider this. In those circumstances, it is all that a Government can do to say "Yes, we will look at this again and see whether we can come up with a better answer". If, in those circumstances, my noble friend wishes to divide the House, of course he is entirely entitled to do so. I make no complaint about that; but I suggest to your Lordships in that instance, bearing in mind the undertaking that I have given, it would be most unfortunate to write into a Bill words such as this which I have tried to explain are not particularly happy in themselves.

The Earl of Selkirk

My Lords, this is embarrassing because I can speak only on this matter with the permission of the House. I would be willing to accept readily that the noble Earl has made a big effort to improve many of the amendments we put down, and I am extremely grateful to him. But I feel it is wrong that we should send this provision to the other place with very stupid wording. The noble Earl has said that he will look at it; that is not good enough. If the noble Earl does not undertake to take out every one of those words, I think we must divide.

The Earl of Mansfield

My Lords, with the repeated permission of the House, I cannot undertake to take them out because neither I nor the draftsmen have anything in mind to put in their place at this moment today. I hope that your Lordships will think it is good enough for the Government to undertake seriously to look at this matter of language and, if possible, to come up with a more acceptable choice of wording.

Lord Elwyn-Jones

My Lords, may I suggest to the Minister, with great respect, that he would be wise to give way on this matter? Here is considerable legal authority which has pointed to the ambiguity and folly in the language. Why not let it go through on the amendment? There is no matter of governmental pride, political honour or anything like that concerned in this drafting question. Let the Minister give way and, if he wants to come back again to it, there is more to be done on the Bill. Let us not have a stubborn resistance.

3.52 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 113; Not-Contents, 40.

CONTENTS
Alexander of Tunis, L.	Crook, L.
Amherst, E.	David, B.
Amulree, L.	De Freyne, L.
Atholl, D.	Denington, B.
Avebury, L.	Derwent, L.
Banks, L.	Donaldson of Kingsbridge, L.
Beaumont of Whitley, L.	Drumalbyn, L.
Birdwood, L.	Eccles, V.
Bowden, L.	Effingham, E.
Brockway, L.	Elliot of Harwood, B.
Bruce of Donington, L.	Elwyn-Jones, L.
Byers, L.	Evans of Claughton, L.
Caradon, L.	Falkland, V.
Chelwood, L.	Ferrier, L.
Chitnis, L.	Fortescue, E.
Clancarty, E.	Fraser of Kilmorack, L.
Cledwyn of Penrhos, L.	Fraser of Tullybelton, L.
Clwyd, L.	Gaitskell, B.
Collison, L.	Garner, L.
Cooper of Stockton Heath, L.	Gladwyn, L.
Cottesloe, L.	Gormanston, V.
Cromartie, E.	Goronwy-Roberts, L.

Greenwood of Rossendale, L.	Portland, D.
Grey, E.	Robbins, L.
Hale, L.	Ross of Marnock, L.
Hampton, L.	Sainsbury, L.
Harris of Greenwich, L.	St. Davids, V.
Hatch of Lusby, L.	Saint Oswald, L.
Hayter, L.	Scarman, L.—[Teller.]
Henderson, L.	Seear, B.
Henley, L.	Sefton of Garston, L.
Hill of Luton, L.	Selkirk, E.—[Teller.]
Hunt of Fawley, L.	Shinwell, L.
Hylton-Foster, B.	Sligo, M.
Ilchester, E.	Spens, L.
Jacobson, L.	Stamp, L.
Jacques, L.	Stewart of Alvechurch, B.
Jeger, B.	Stewart of Fulham, L.
Kennet, L.	Stone, L.
Lawrence, L.	Strathclyde, L.
Leatherland, L.	Strathspey, L.
Lindsey and Abingdon, E.	Strauss, L.
Listowel, E.	Swinfen, L.
Llewelyn-Davies of Hastoe, B.	Thurso, V.
Lovell-Davis, L.	Tweedsmuir, L.
Mackie of Benshie, L.	Underhill, L.
Macleod of Borve, B.	Vaux of Harrowden, L.
McNair, L.	Vickers, B.
Mancroft, L.	Vivian, L.
Mersey, V.	Wallace of Coslany, L.
Mowbray and Stourton, L.	Wells-Pestell, L.
Moyne, L.	White, B.
Northchurch, B.	Wilson of Langside, L.
Oxford, Bp.	Winstanley, L.
Pargiter, L.	Winterbottom, L.
Peart, L.	Wootton of Abinger, B.
Phillips, B.

NOT-CONTENTS
Alport, L.	Mansfield, E.
Avon, E.	Marley, L.
Balfour of Inchrye, L.	Milverton, L.
Cathcart, E.	Mottistone, L.
Chesham, L.	Newall, L.
Cockfield, L.	Nugent of Guildford, L.
Cullen of Ashbourne, L.	O'Hagan, L.
Denham, L.—[Teller.]	Reigate, L.
Dundee, E.	Renton, L.
Energlyn, L.	Roberthall, L.
Ferrers, E.	St. Aldwyn, E.
Gainford, L.	Sandford, L.
Gowrie, E.	Sandys, L.—[Teller.]
Hailsham of Saint Marylebone, L.	Skelmersdale, L.
	Soames, L.
Hives, L.	Somers, L.
Ironside, L.	Sudeley, L.
Long, V.	Willoughby de Broke, L.
Lyell, L.	Wise, L.
Mackay of Clashfern, L.	Wolverton, L.
Malmesbury, E.

Resolved in the affirmative, and amendment agreed to accordingly.

4.1 p.m.

The Earl of Selkirk moved Amendment No. 2:

Page 2, line 1, leave out paragraph (b) and insert— ("(b) if the matrimonial home has been vacated, a right to enter and occupy.").

The noble Earl said: My Lords, I beg to move this consequential amendment.

The Earl of Mansfield

My Lords, I do not know whither my noble friend Lord Selkirk is running with his amendment, but certainly I do not regard it as being consequential. I believe it is an amendment in its own right.

The Earl of Selkirk

My Lords, I beg your Lordships' pardon; so it is. This is purely a quest for information. One of the questions I want to ask is this. If a matrimonial home has never been occupied, has it indeed become a matrimonial home? My second question is whether it is possible to have more than one matrimonial home. I believe these are important questions. We have taken on a very big task; we are giving occupational rights to upwards of 2 million homes in Scotland automatically by statute. There is no registration of those homes and so one asks the question, how does one find out which are occupational homes and which are not? This is very different from the English Bill and it presents a number of problems in this respect.

I think it is proper to remember that nearly 350 years ago the Register of Sasines was formed. It was formed for the reason that hurt was sustained by Her Majesty's lieges by fraudulent dealing in land. What was the fraud? The fraud was concealing private rights. We are now creating a huge new range of private rights which are being concealed. This is the policy of the Bill and I am not challenging that policy; what I am saying is that we want to clarify so far as we possibly can how this matter stands. If that is not done there will be some very unpleasant matrimonial causes at law. What I am asking is this. Does this include a number of homes or is it confined to one home, and can a home which has never been occupied become in turn a matrimonial home? The word "provided" appears, but I do not know what that means.

I ask these questions in order to enable the noble Earl to describe the way he sees the extent of this arrangement. I ask this also because if one buys a house in Scotland today, one is always wise to get two signatures—the signatures of both parties—before one can hope to be clear in the title, unless of course it is held by a bachelor or a spinster. I have asked those questions because I believe it is important to make it clear—as you will have to make it clear eventually—exactly where the people of Scotland stand. I beg to move.

Lord Drumalbyn

My Lords, I believe I am correct in thinking that the answer to the questions of my noble friend Lord Selkirk are to be found in a very obtuse corner of the Bill which is the definition of the "matrimonial home". Line 11 on page 20 states: 'matrimonial home' means any house". Presumably, then, this means that if the person has more than one house it applies to all the houses that he has. I see that my noble friend proposed to amend that to "a house", which would have restricted the definition to one house. Does this explain correctly the Government's position; that it does apply to any house, and that there could be more than one matrimonial home?

The Earl of Mansfield

Yes, my Lords. The only difference between my noble friend Lord Drumalbyn and me is that I deny that the word "obtuse" is the right or proper one in this context. Clause 20 is the usual definition clause and I would remind the House that this was mentioned on Second Reading. It states that a matrimonial home means any house, caravan, and so on which has been provided or has been made available by one or both of the spouses". To take Lord Selkirk's questions: yes, it does include all the matrimonial homes and, secondly, it does not mean that in fact the houses must have been occupied by the spouses as a principal matrimonial home. In other words, if the couple were lucky enough to have a main residence and, say, a holiday cottage then either or both of those could be the subject of an application by the non-entitled spouse under Clause 1 of this Bill. I hope that my noble friend is not going to insist on this amendment, flushed with victory as he no doubt is, but if this amendment was accepted it would in fact turn what is a positive definition into a negative one and it would be more restrictive than the clause intends.

The Earl of Selkirk

I thank the noble Earl for what he has said. He has answered quite clearly; that one can have as many matrimonial homes as one can afford, and one can declare a matrimonial home by making a simple declaration without having lived there. That is the purpose of the Bill and I am grateful to know it, though I think it is a little odd. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 3:

Page 2, line 15, leave out (", either generally or") and insert ("only (a) ").

The noble Earl said: My Lords, in moving Amendment No. 3 I should also like to speak to Amendment No. 4. Both amendments take account of the misgivings expressed in Committee by my noble friend Lord Selkirk and by the noble Lord, Lord Ross of Marnock, in relation to the right to renounce occupancy rights in a matrimonial home. I believe that these amendments represent a reasonable and sensible compromise between abolishing the right of renunciation altogether and protecting the renunciation against coercion or undue influence.

The amendment provides for renunciation only in relation to a particular matrimonial home. Because renunciation will normally be a serious step for the non-entitled spouse, it is not considered desirable that provision should be made for a general renunciation which would cover all future matrimonial homes. The renunciation may, however, relate to the existing matrimonial home or to a particular house which it is intended should become the matrimonial home. The amendments, however, make no provision for a person who is shortly to be married to make a renunciation because, as he or she is not yet a spouse, the Bill will not apply to him or her. Even a particular renunciation is a serious step and the amendment accordingly provides that they must swear or affirm before a notary public or justice of the peace that it has been freely made. It is not thought practicable to take the protection of the renouncing spouse any further. I beg to move.

The Earl of Selkirk

My Lords, I should like to thank the noble Earl for this amendment.

Lord Ross of Marnock

My Lords, I, too, am grateful to the noble Earl for the amendment. I think I was more concerned about what is now to be subsection (6). Taking into account the whole background of the Bill, and the need to exercise the non-entitled right in terms of a violent husband, and the effect upon children, it would be quite easy, unless we have this further protection here, for that husband to get the non-entitled spouse to write away—it is not a question of swearing, as the Bill is at the moment—her rights. I am grateful to the noble Earl for the changes he has made. This certainly meets the point that I made. I hope that the noble Earl does not take too seriously his defeat in the first instance.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 4:

Page 2, line 16, at end insert— ("; or (b) in a particular property which it is intended by the spouses will become a matrimonial home. (6) A renunciation under subsection (5) above shall have effect only if, at the time of making the renunciation, the non-titled spouse has sworn or affirmed before a notary public or a justice of the peace that it was made freely and without coercion of any kind.").

On Question, amendment agreed to.

Clause 2 [Subsidiary and consequential rights]:

4.12 p.m.

The Earl of Mansfield moved Amendment No. 5: Page 2, line 25, after ("of") insert ("non-essential").

The noble Earl said: My Lords, this amendment was moved by the noble Lord, Lord Ross, in committee and I said that I would take it away and consider it. I am now happy, in effect, to accept it. I beg to move.

Lord Ross of Marnock

My Lords, I am equally happy that the amendment is on the Marshalled List and I agree with it.

On Question, amendment agreed to.

Clause 3 [Recognition by court of rights of occupancy of matrimonial home]:

The Earl of Selkirk moved Amendment No. 6: Page 4, line 28, leave out ("non-applicant") and insert ("respondent").

The noble Earl said: My Lords, this amendment follows a little on some of the points raised earlier. It seems to me much simpler to use the word "respondent", which is very well-known in Scotland, instead of "non-applicant". In fact, I doubt whether the word "non-applicant" has ever been used up till now. I suggest that the word "respondent" is more harmonious and less confusing than the present word. I beg to move.

Lord Fraser of Tullybelton

My Lords, I agree with the noble Earl, Lord Selkirk, that "non-applicant" is not a happy word. I should have ventured to suggest that the word "other" would be much more appropriate here. If you look at paragraph (e) of subsection (1), you find the words, protecting the occupancy rights of the applicant spouse in relation to the other spouse". That reads quite well. I should have thought that if you inserted the word "other" in paragraph (c), it would read better and be more in keeping with the structure of the clause. I therefore suggest that the word "respondent" is not the right word.

Lord Wilson of Langside

My Lords, I support this amendment. I am reluctant, to some extent, to speak upon it, because, unfortunately, I have not been able to participate in the earlier debates on this Bill. But I agree with the noble Earl, Lord Selkirk, that this is an unhappy phrase and is one which, so far as I am aware, is unknown to our Scottish courts. His suggestion of "respondent", too, raises the question of the procedure in accordance with which these applications will be dealt with. This is not, in fact, laid down, as I understand it, in the Bill, and accordingly I imagine—though the noble and learned Lord who is present will know better than I—that the application will be dealt with as a summary application in terms of, I think, Section 1 of the Sheriff Courts (Scotland) Act 1907. In that case, if the application proceeds according to the procedure appropriate to a summary application, the initiator of the procedure will be the applicant and the person who answers will be the respondent. Of course, I have in mind what the noble and learned Lord, Lord Fraser of Tullybelton, said, but subject to that it seems to me that the word "respondent" would be the more appropriate drafting term.

Lord Ross of Marnock

My Lords, I do not know whether to be gratified by all that is being said. I think I had an amendment down at the Committee stage, suggesting that the proper word, or the most simple word, would be "other", and I drew attention to the confusion and complexities of "entitled", "non-entitled", "applicant" and "non-applicant". But the Government did not respond to that. I am now asked to make a choice between "respondent" and "non-applicant". It might be all right for lawyers, but I do not think that the ordinary person reading the Bill would be confused by "applicant" and "non-applicant". Having said that, I am convinced that the Minister will get up and accept the amendment, but I shall not be very happy about it.

The Earl of Mansfield

My Lords, I really must not do anything not to make the noble Lord, Lord Ross, happy and, therefore, I shall not accept the amendment. I am informed by the draftsman that in Scotland the word "respondent" in relation to legal matters has a very narrow and technical meaning, being used in connection with appeals and petitition procedures. The noble and learned Lord, Lord Fraser of Tullybelton, knows a great deal more about this than I do, as indeed does the noble and learned Lord, Lord Wilson of Langside. But that is what I am informed. One comes down to the use of technical language and, above all, one tries to ensure that the words are clear and capable of being easily understood. In view of what the noble and learned Lord, Lord Fraser, has said, I will make further inquiries between now and the next stage, although the time is fairly short. In that event, perhaps the noble Earl, Lord Selkirk, will withdraw the amendment.

The Earl of Selkirk

My Lords, I am very happy to do that. On reflection, I think that what my noble and learned friend Lord Fraser said is probably right in this case. I must admit that I had in mind much more this rather unhappy word "non-applicant", which I believe is quite unusual, to put it no higher, and it is really in the later parts where some other word could be used. I think that "respondent" is quite a good word, but I shall not press this further. I merely throw it out to the noble Earl and perhaps he will give it a moment's thought. I think that the term "non-applicant" is ugly, and if we could get a more harmonious or felicitous word I should be very happy. Meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.18 p.m.

The Earl of Mansfield moved Amendment No. 7: Page 5, line 3, leave out ("in") and insert ("having regard to").

The noble Earl said: My Lords, with the leave of the House, I shall also speak to Amendment No. 8. These are drafting amendments to make it clear that the factors listed in paragraphs (a) to (d) of Clause 3(3) are not the only circumstances to which the court should have regard. It is intended that all relevant circumstances—including, possibly, the interest of third parties such as a building society—should be taken into account. The amendment brings Clause 3(3) into line with provisions elsewhere in the Bill, where the court is required to have regard to all the circumstances of the case. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 8: Page 5, line 4, leave out ("having regard to") and insert ("including").

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 9: Page 5, line 10, after ("which") insert ("(i)").

The noble Earl said: My Lords, with the leave of the House I shall also speak to Amendment No. 10. These amendments provide that the use to which an item of furniture and plenishings may be put in connection with business or trade should be among the matters considered by the court, in deciding whether to grant possession and use of the furniture and plenishings in the matrimonial home to the non-titled spouse.

I am grateful to my noble friend Lord Drumalbyn for raising this point in Committee. I think that this amendment to Clause 3 is preferable to his suggested amendment to Clause 20. The aim is precisely the same. To use the homely example given in Committee by my noble friend, a piano may not only be a piece of furniture pleasing to the eye and, when played, to the ear. It may also be a necessary tool of a musician's trade. In these circumstances, the amendments require the court to have regard to the fact that the piano is used for a business purpose and the court can refuse the applicant the possession or use of the piano. The same principle applies in relation to less bulky articles which may have both a domestic and a business use. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 10:

Page 5, line 10, after ("home") insert— ("; and (ii) in relation only to an order under subsection (2) above, any item of furniture and plenishings referred to in that subsection").

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 11: Page 6, line 10, after ("of") insert ("any item of").

The noble Earl said: My Lords, this amendment reflects the outcome of the Govermment's further consideration of the provision in Clause 1(5) for renunciation of occupancy rights. It is not thought to be as serious a step to renounce possession or use of the furniture and plenishings as it is to renounce the right, in effect, to a roof over one's head. It may, moreover, be perfectly reasonable for a spouse to wish to keep possession of a family heirloom and to seek a renunciation by the other spouse in relation to that specific item.

The amendment therefore does not provide for attestation or affirmation before a notary public or justice of the peace. It seems consistent that the renunciation should be in writing in the same way as consent for the removal of any furniture and plenishings under Clause 4(4) must be written. It does, however, require that any renunciation must be in relation to specific items only. It is considered doubtful whether it would normally be in the best interests of a spouse (normally a wife) to renounce her rights in relation to all the furniture and plenishings. She might conceivably end up with an occupancy right to an empty house, which would not be habitable.

A renunciation in respect of all the furniture and plenishings could only be made by listing all the various items. In most households not all items are owned by one spouse; a list would therefore make clear exactly what each spouse owned and wished to retain for his or her own use and possession. I beg to move.

On Question, amendment agreed to.

Clause 4 [Exclusion orders]:

The Earl of Mansfield moved Amendment No. 12: Page 6, line 21, after ("conduct") insert ("or threatened or reasonably apprehended conduct").

The noble Earl said: My Lords, if it is convenient to the House, I shall speak also to Amendment No. 13. Misgivings were expressed in Committee, notably by the noble Lord, Lord Ross, that the Bill did not permit an exclusion order to be granted before serious violence occurred, even where there were clear signs that such violence was likely. These amendments take account of that possibility by providing that the court shall have regard to actual, threatened or reasonably apprehended conduct injurious to the physical or mental health of the applicant or child.

The amendments would allow an exclusion order to be granted if a husband made threats against his wife or children. The court will of course take account of all the circumstances of the case and will no doubt bear in mind that mere loss of temper is not necessarily a prelude to violence. I beg to move.

Lord Ross of Marnock

My Lords, I am grateful to the Minister of State for the amendment, which meets the point that I raised.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 13: Page 6, line 22, after ("is") insert ("or would be").

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 14:

Page 6, line 23, at end insert— ("( ) For the avoidance of doubt, corroboration of the crucial facts to a breach of interdict or in any criminal proceedings will be proved either by the direct evidence of two witnesses or by two or more evidential facts spoken to by separate witnesses from which a crucial fact may be inferred, or by a combination of the direct evidence of one witness and of one or more evidential facts spoken to by other witnesses which support it.").

The noble Lord said: My Lords, this amendment deals with the very important point in Scottish law where corroboration is demanded in relation to proving a case. It has been suggested to me that in this type of case, corroboration is one of the most difficult things to achieve. Something happens within the family. Only the husband and wife may be there when the threats are made or when the violence occurs. During the Committee stage I instanced a case that was put to me where the police, having been called to a house, stood outside and listened at the window to find out what was going on. But the husband, being aware that the police were around or were likely to be around, kept very quiet, until eventually the police went away.

It was suggested to me that we should put these words relating to corroboration into the Bill. The wording is not my own. It appears in the Scottish Law Commission Memorandum 46, Law of Evidence 1980, Chapter X, page 71. It may well be that this will be of help in the adjudication of some of these very difficult cases. I beg to move.

The Earl of Mansfield

My Lords, I appreciate the concern of the noble Lord, Lord Ross of Marnock, and what he seeks to do—and, indeed, his reasoning. However, for the reasons which I shall give, I do not think that this amendment is particularly appropriate. First, it attempts to deal simultaneously with civil and criminal procedure, which could be confusing if for no other reason than that the standard of proof in civil and criminal procedures is different.

As a description of the existing law, which is what the words "for the avoidance of doubt" imply, it is I suggest inadequate and misleading because it does not take into account all the possible combinations of two or more sources of evidence by which corroboration could be established. If one is going to make use of expressions such as "crucial facts" or "evidential facts", there would have to be a clear definition in the statute. It could also be misleading to talk of facts as being spoken to by witnesses. Some pieces of evidence speak for themselves. For instance, injuries can speak for themselves. Torn clothing can, as it were, speak for itself. When a matter is spoken to by one witness, it may require very little else to give corroboration. The amendment does not really convey that impression. I must tell the noble Lord that I think that it could be interpreted as making the obtaining of corroboration more difficult than in fact it is.

In any event, having regard to the practicalities of the situation, I would expect that the applicant spouse will in all cases seek legal advice before deciding to commence proceedings. Lawyers will be under no misconception as to the law on this subject. So far as the criminal law is concerned, this Bill is not intended to affect the substantive criminal law on this matter. I believe that the law of corroboration is satisfactorily dealt with by the common law, and in a statute such as this it is more usual to provide only for exceptions to the general rule. I repeat that in a "for avoidance of doubt" provision it is essential that the law be stated clearly and accurately, otherwise it will cause doubt. Even if this amendment were necessary and desirable, which I hope to have shown it is not, it would need considerable alteration and redrafting before it would be clear and accurate. In those circumstances, I hope that the noble Lord will see fit to withdraw his amendment.

Lord Ross of Marnock

My Lords, as I said, the wording is not mine; it comes from the Scottish Law Commission. Indeed, it goes further. The noble Earl complained that the words "evidential facts" would require definition. I am happy to tell him that the Scottish Law Commission go on to define "evidential facts" However, I do not want further to elaborate a statute which I think will prove to be fairly complex. I do not want to make it any more complex by putting in these words which the Minister of State was saying were unnecessary. I do not want further to complicate it. My feeling about this Bill is one of danger, and it was underlined when I heard the Minister of State say that anyone using the new rights given here will have to consult lawyers before they exercise them. I think that very fact and the complexity of this matter will mean that many of the people who would otherwise benefit will be put off. So I want the statute to be as simple as possible. I know that there are difficulties in achieving that and I take what the noble Earl said about corroboration, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Derwent)

My Lords, in Amendment No. 15 there is a misprint on the Marshalled List: "line 27" should read "line 29".

4.32 p.m.

Lord Ross of Marnock moved Amendment No. 15: Page 6, line 29, leave out from ("Act") to end of line 42.

The noble Lord said: My Lords, this is a very important new right in a very important new Bill. The noble Earl told us how many million homes it would apply to but there is one section of the population to whom it will apply but who will not properly be able to exercise this new right. I do not know what they do about it in England and Wales, but I think it is most unhappy that we should make it clear, as this clause does, that this new right, and the protection of the home that it affords to beleaguered wives and to families whose physical and mental health is threatened by violent husbands, is not available to people who live in agricultural tied houses.

In most things in connection with this Bill I have agreed with my noble friend Lord Mackie of Benshie, and I was very disappointed when he got up and rattled the old sabres about the stockmen and the collapse of Scottish agriculture if we were to give this protection to wives in tied cottages. Why should they be left out? How many of them are there, and how many of those who are in tied houses of the kind that the farmer cannot do without, will be affected by this? I reckon that it would be minimal. I saw a figure the other day which suggested that the number of cases which have come before the courts where protection was demanded and police calls to homes in Scotland had risen, was about 10,000. In half of these it was the family themselves who had called the police, so that takes us to 5,000. I wonder how many of those lived in tied cottages. I doubt whether there were any.

I notice that there are amendments tabled, because it will offend many people in Scotland that we are going to deal with the couple who are living together but who are not married or, if they are married, it is to somebody else and not the person with whom they are living. We give protection there and we give the right to the sheriff to give the non-applicant spouse, I think, three months' occupancy in the first instance and then a further stay in the home, without limit. But this will not apply to the woman in a tied cottage. I put it to the noble Lord that he is worried not about the actual farm itself; he is probably worried about the man losing his job and the woman losing the house anyway, eventually.

I think it is a little unfair. The first thing any farmer with a family like this in a tied cottage would want if he was an unreliable worker would be to get rid of him. So what this seeks to avoid would probably happen anyway but in that case the woman would lose occupancy as well—that is, if we do not allow her to exercise the right. The Government have proved to be flexible in connection with this Bill and I hope they will consider again whether they can give some form of occupancy to the applicant spouse.

I mentioned my own atittude to tied cottages in Scotland as against what has happened in England and Wales with the Secretary of State for Agriculture and other people in Labour Governments. I accepted the views of the farmers on those occasions and we have not had the number of evictions in Scotland which have proved troublesome elsewhere. Of course one of the reasons is that where there have been evictions the person who has to do that is the sheriff and the sheriff usually gives at least three to four months for alternative accommodation to be found. But what we are doing here is leaving no option at all to the woman, other than having to leave the husband—probably difficult in the circumstances—or to stay there, unless a criminal case arises from it, in which case they would probably lose their home anyway. It does not give the right of occupancy and peaceful life to the woman that is given to every other woman in Scotland.

I think it would be shameful if we were to allow this to go through and I sincerely hope that even at this stage the Government will look at it again to see whether they can give some partial occupancy in these cases. I do not say that the courts should always apply this in respect of tied cottages. I would leave it to the judgment of the court. It may well be that the man could get a house somewhere else or could get lodgings in the vicinity and could carry on with his job and it would not be to the detriment of the farmer. That is only one particular case but the people who would know that would be the court and that is why I suggest that we should leave it to the court. We should remember that the subsection says: The court shall not make an exclusion order if it appears to the court that the making of the order would be unjustified or unreasonable". We should leave it to the court to decide and not put into the Bill words which pinpoint the fact and virtually rule out the giving to the applicant spouse who lives with her husband in a tied cottage of the rights that every other woman in Scotland will have. I feel very strongly about it and I hope I have been able to convince the House that there will be injustice if we leave the Bill as it is at present. I beg to move.

Lord Mackie of Benshie

My Lords, I am sorry to oppose the amendment moved by the noble Lord and I certainly do not do it out of any feeling that the tied cottage is wholly sacrosanct, though the fact that the farmworkers approved the retention of the tied house in Scotland and did not want a change in the law seems to show that it is a system that suits them. But really the noble Lord, Lord Ross, cannot say that we can burden a dairy farmer, for example, with yet another risk in the case of a tied house for a stockman. It is absolutely essential, not only in dairy farming but in the case of a shepherd and very often in the case of a tractorman when no one else is available, that he should keep possession of that house and it is not at the discretion of the court because already it takes the farmer some time to get possession and a great many farmers have suffered a great deal of inconvenience. I do not think that in this case it would be logical to say that the hard-done-by wife, if it was the wife, would be entitled to stay in the house and he would have to leave it. There are, after all, on many farms in Scotland, and in the country areas certainly, tied houses which are empty because of the present law. I do not think it would be difficult to find alternative accommodation.

Lord Ross of Marnock

Or the husband, my Lords.

Lord Mackie of Benshie

But not if the husband had to go and milk cows on that farm. That makes it extremely difficult. The caring for stock is a very important factor in farming; it is a very important factor in humanitarian terms, as can be seen from the concern expressed in this House for the treatment of stock. I must say that I cannot support the noble Lord, Lord Ross, in this amendment.

The Earl of Mansfield

My Lords, first of all I must point out to the noble Lord, Lord Ross, that when he deprecated the fact, as he put it, that the new right is not available to people in tied housing, that is absolutely wrong.

Lord Ross of Marnock

My Lords, I did not say that; I said the exercising of the right.

The Earl of Mansfield

My Lords, what this clause means is precisely what the noble Lord, Lord Ross, wanted—the court has a complete discretion. What it says is: The court shall not make an exclusion order if it appears … that the making of the order would be unjustified or unreasonable having regard to all the circumstances of the case"; and where the matrimonial home is affected it is either: part of an agricultural holding a home in respect of which possession is given … by an employer as an incident of employment". In other words, the wife or husband living in a tied house has exactly the same rights as anybody else in any other house and can come to the court to seek this form of relief. So if the noble Lord is minded to divide the House on this point he must be precisely sure, at least in his own mind, exactly what he is asking the House to do, because, as I have tried to say, people living in tied housing have no less rights than anybody else.

I am quite sure that in many cases Scots farmers will not apply for the eviction of a tenant against whom an exclusion order has been made, although there may be circumstances where they feel compelled to do so. There is also, as the noble Lord, Lord Ross, pointed out, the role played by the sheriff; when it comes to eviction procedure he can give a period of grace for the non-titled spouse to be allowed to remain in occupation of the house. What this provision does in subsection (3)(b) is to draw the court's attention to a possible problem area at an early stage, because it could be that a non-titled spouse might find herself without a home after the making of an order such as this, and it is much better that the court be aware of the possibility when the exclusion order is made.

So the existence of the provision will draw the matter to the mind of the applicant and her legal adviser, and in such an instance I have no doubt that the applicant spouse would be well advised to ascertain the landlord's likely reaction before applying for an exclusion order. As I have said, and I think the noble Lord, Lord Ross, said in Committee, in many cases he would be sympathetic, particularly if he gets advance warning of possible labour problems so far as one of his workers is concerned.

This is a matter that the Scottish Law Commission considered. It considered that the court must have the discretion to grant an exclusion order, even where the matrimonial home is part of an agricultural holding. The Government also agree with the commission that in this particular situation the court should have regard to the possible effects of an order. So I sum up by saying that nobody is granted any less rights than anybody else so far as the provisions of this clause are concerned, and it is in fact a help both to the applicant and to the court that an area of possible difficulty is brought to the court's notice as soon as possible, and anyway before the exclusion order is made.

Lord Ross of Marnock

My Lords, it is very nice to hear the Minister of State say that, but if that were true what is the point of the words being there? Why are they there if it is left to the discretion of the court? If my amendment were accepted, the court's discretion would be neither more nor less. The only words that would be left out are those referring to the tied cottage. Why are they there—just to help the court, just to help the applicant? As if she did not know she was in a tied cottage. It is my feeling that these words are there—and it was virtually taken up by the noble farmer, Lord Mackie—for the protection of the tied cottage. This is what everyone else will read into it.

So I am afraid what I said was right. I did not say that the spouses in a tied cottage are denied their rights; they are given the right. But when they come to exercise that right by going to the court, it may well be for an exclusion order, then they are faced with this situation. So they have not got the same freedom to exercise their right as anyone else. It is not my intention to divide the House. There are other stages of the Bill, and I hope the point will be taken elsewhere. I still regret the fact that these words are there. If what the Minister of State has said is right, that it is left to the discretion of the court, the full discretion of the court could be exercised without the words I propose to leave out. I am sad about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 16: Page 7, line 18, leave out ("which the matrimonial home is situated") and insert ("the vicinity of the matrimonial home").

The noble Earl said: My Lords, with the leave of the House, I would speak also to Amendment No. 26. This amendment is intended to clarify the purpose behind Clause 4(5)(a). During Committee a number of noble Lords expressed some reservations about the extent of the "specified area" presently referred to in this paragraph. I undertook to examine this provision in an effort to find a form of words which might allay some of their fears. I trust that this present amendment will, therefore, go some way towards achieving that end.

It is not the intention that the court should specify an area measuring many square miles. An interdict under the subsection would have a limited application in geographical terms. The amendment achieves this by stipulating that the specified area must be in the vicinity of the matrimonial home. A measure of discretion must remain for the court, in my view, so that the area to be specified may take account of any exceptional circumstances, but it is accepted that the area should not extend beyond the vicinity of the home. I beg to move.

The Earl of Selkirk

My Lords, I should like to thank the noble Earl very much. This is a great improvement and to my mind gives a completely new colour to this particular episode.

On Question, amendment agreed to.

Clause 6 [Continued exercise of occupancy rights after reading]:

4.50 p.m.

The Earl of Selkirk moved Amendment No. 17: Page 8, line 25, leave out ("and").

The noble Earl said: My Lords, I beg to move Amendment No. 17. The Bill departs quite a long way not only from the normal conveyancing practice in Scotland, but also from the recommendation made by the Law Commission. I want to investigate what my noble friend has in mind. I should remind the House that I have taken the words: occupany of the matrimonial home does not import a higher right than that of the spouse from which it derives", which appear in my amendment No. 18, directly from the Law Report at paragraph 2.10. Perhaps I may read the relevant paragraph: We must emphasise however that the right of occupancy or the permission to occupy which we propose to confer upon a wife will in no circumstances be a higher right or more extensive permission than the right or permission in the husband from which it derives". The same words are in the Matrimonial Homes and Property Bill which we passed the other night under the guidance of the noble and learned Lord, Lord Simon of Glaisdale. In that Bill it says in Clause 2: but the other spouse shall not by virtue of the rights of occupation conferred by this Act have any larger right". That has disappeared altogether.

I should like to know the position of the occupant wife, for example, or the occupant spouse, in the event of her husband going bankrupt. Does she have a higher right than her husband? Is she entitled to continue there when her husband is there, or is she not? It is clear from the view expressed by the Scottish Law Commission—certainly as I understand it—that that is not the case; she does not have a higher right than that. I must confess that as I understand the drafting of the Bill—and I am probably quite wrong about it—that right does not exist and in point of fact she could continue to occupy although her husband was declared bankrupt or, to put it another way, the trustee in bankruptcy allowed her husband to continue in occupation. If that is the case and they withdraw that continuation, has the wife any continuing right of occupation? According to the Bill she has, but according to the Scottish Law Commission Report she should not have.

I am only raising this matter for clarification because I am a little concerned, particularly as regards third parties, how this will work out. As noble as the ideas may be, we do not want to make this too complex for the people who are in the ordinary business of buying and selling houses—we do not want them to be mystified. Perhaps my noble friend would be good enough to give me his views on the matter because they might be very helpful. I beg to move.

Lord Drumalbyn

My Lords, if the legal title of the owner of the house comes to an end in one way or another, ought not that to obliterate the right of occupancy, whether the right of occupancy is that of the person entitled to occupy, entitled to possession, or the person who is not so entitled? I think that I have spoken long enough for my noble friend to be able to give the answer.

The Earl of Mansfield

My Lords, in short the answer is that this Bill has not altered from the draft Bill of the Scottish Law Commission on this point—that is to say, there is a higher right. The Bill will protect the wife against a contrived bankruptcy and that can be seen in Clause 9, but otherwise the ordinary law will apply. Of course, the matter raised by my noble friend Lord Selkirk goes rather wider than bankruptcy because there are other third parties which spring to mind—for instance, building societies or other lenders. One appreciates the reasons for my noble friend's concern. It is certainly not intended that the Bill should prejudice the interests of third parties who have lent money on the security of the matrimonial home, except where the lenders has not ensured that the consent of the non-titled spouse has been obtained.

So in the vast majority of cases, as a matter of standard practice, the consent of the non-titled spouse will be obtained to a dealing which is the grant of a heritable security—the form commonly used by building societies is a standard security. This will ensure that the lender will not be precluded by the Bill from exercising the rights to call up the security and obtain possession in the case of a default in payment. If the consent of the non-titled spouse, who will by virtue of the Bill have an occupancy right, is not obtained it is proper that that spouse should be protected, and in such a case the occupancy right will operate as an overriding interest against any other interests. Subsection (3) makes an exception where the consent has been dispensed with by the court under Clause 7, where the dealing implements an obligation entered into before the marriage, or where the dealing implements a binding obligation entered into before the passing of the Act. I hope that that information will be of assistance to both of my noble friends.

The Earl of Selkirk

My Lords, I am grateful to my noble friend for what he has said, although I think he said that in the Bill there would be a higher right. In the Scottish Law Report that is exactly what there is not—it says quite specifically: … will in no circumstances be a higher right or more extensive permission than the right or permission in the husband from which it derives". So the Bill is departing quite a long way from what the Scottish Law Report said. I shall not argue the matter further because it is slightly complex. However, the permission which they gave was the permission to the titled spouse, by the trustee in bankruptcy, to live in the house. If that permission were withdrawn then the wife could not continue to live there. That is what they say. I understand from my noble friend that the Bill as drafted would not provide the same—in other words, the occupants of the house could override the trustee in bankruptcy. I may be wrong about that, but all that I shall say to my noble friend is that this is an important point which I should be very grateful if we can in due course make quite clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

The Earl of Mansfield moved Amendment No. 19: Page 8, line 38, after ("his") insert ("or her").

The noble Earl said: My Lords, I beg to move Amendment No. 19 and I should like to speak to Amendment No. 39. These are consequential drafting amendments to achieve consistency following acceptance by the Government of the amendment to Clause 1(2) moved by the noble Lord, Lord Ross, to take account of the fact that an individual, in terms of these provisions, may be either male or female. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 20: Page 8, line 44, after ("dealing") insert (", and any consent shall be in such form as the Secretary of State may, by regulations made by statutory instrument, prescribe").

The noble Earl said: My Lords, I beg to move Amendment No. 20. This amendment will facilitiate simpler and more convenient conveyancing practice in relation to the consent given by a non-titled spouse to a dealing by requiring that a statutory form shall be used. It will avoid disputes about consents which could arise if a form is deficient in some way. It will also make it easier for an individual to give such a consent without first requiring a solicitor to prepare an appropriate form. I believe that the amendment will be generally welcomed by those most closely invoved professionally in conveyancing and house purchase. I beg to move.

The Earl of Selkirk

My Lords, I agree and I am grateful to my noble friend for what he has said.

Lord Drumalbyn

My Lords, can my noble friend say whether the regulations will come out at the same time as this part of the Bill comes into operation?

The Earl of Mansfield

My Lords, I am sorry, but I did not catch what my noble friend said.

Lord Drumalbyn

My Lords, can my noble friend say whether the regulations referred to in Amendment No. 20, giving the form in which the consent is to be made, will be in operation at the same time as the Bill comes into operation?

The Earl of Mansfield

My Lords, Yes; they must be.

On Question, amendment agreed to.

5 p.m.

The Earl of Mansfield moved Amendment No. 21: Page 9, line 2, leave out (", either generally or").

The noble Earl said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 22: Page 9, line 3, after ("home") insert ("or property.").

The noble Earl said: My Lords, this is also a consequential amendment. I beg to move.

Lord Ross of Marnock

My Lords, consequential to what?

The Earl of Mansfield

My Lords, consequential to my earlier amendments to Clause 1(5).

Lord Ross of Marnock

My Lords, I do not think that we used the word "property" there, did we?—because I was wondering about the relevance of "property". Perhaps the noble Earl could define what it means in this particular subsection.

The Earl of Mansfield

My Lords, I regard it as being quite properly phrased and, indeed, it is consequential to what I undertook to do.

Lord Ross of Marnock

My Lords, by leave, "property" is a very wide term. Hitherto we have been talking in relation to the matrimonial home; we talked about furniture and furnishings. If that is what is meant, would it not have been better simply to put that in?

Lord Drumalbyn

My Lords, is it not possible that the property might be associated or connected with the matrimonial home?—for example, property lying around the matrimonial home. I understand that the matrimonial home is limited by definition to the actual house and what is required to be used with the house as a domestic home.

Lord Mottistone

My Lords, in order to assist the House, might this amendment not be consequential on Amendments Nos. 3 and 4?

The Earl of Mansfield

My Lords, with leave, that is so. Amendment No. 4 talks about "a particular property", and this is the property referred to.

On Question, amendment agreed to.

Clause 12 [Transfer of tenancy]:

The Earl of Mansfield moved Amendment No. 23:

Page 13, line 32, at end insert— ("(5A) The clerk of court shall notify the landlord of the making of an order granting an application under subsection (1) above.").

The noble Earl said: My Lords, this amendment provides that the landlord shall be informed if an application to the court for a transfer of tenancy has been made to the court. This point was raised during our considerations in Committee by the noble Lord, Lord Ross, and indeed by my noble friend Lord Selkirk. At that stage I accepted that some form of notification should be provided to the landlord, and this amendment seeks to achieve that. The landlord will already know that the court is to consider the application. The amendment will ensure that he or she, or the local authority, is advised of the outcome, if it means a change of tenant.

Because the non-titled spouse may not always be aware of the making of such an order within a matter of days, it is thought to be fairer to the landlord that he or she should receive intimation promptly rather than depend upon how soon the non-titled spouse learns of the order. The amendment therefore provides that the clerk of court shall notify the landlord, and this is likely to be at the same time as formal notice of the court's decision is sent to the non-titled spouse. My Lords, I beg to move.

Lord Ross of Marnock

My Lords, I am grateful to the noble Earl the Minister of State for having taken the point that where the landlord was to be informed that there was an application and had a right to be heard, there was no right thereafter for him to be told. In fact, the words to which I drew attention are still in this subsection. I wonder whether the noble Earl could ask the draftsman to have another look at this to see whether the words "without intimation to the landlord" are not otiose. It reads in a rather silly way: (5) On the making of an order granting an application under subsection (1) above, the tenancy shall rest in the non-titled spouse without intimation to the landlord … and then we put in: The clerk of court shall notify the landlord of the making of an order granting an application …". That does not strike me as being quite sensible.

The Earl of Mansfield

My Lords, it is certainly not otiose, but I shall reconsider the matter.

Lord Ross of Marnock

My Lords, thank you.

On Question, amendment agreed to.

[Amendment No. 24 not moved.]

Lord Ross of Marnock moved Amendment No. 25. Page 15, line 1, leave out subsection (10).

The noble Lord said: My Lords, this is a despairing effort to try to get something for the people in the position of seeking occupancy and a change of tenancy in respect of council houses. At the moment this is how it can be done. In this particular section in the Tenants' Rights (Scotland) Act 1980 we said that this was one of the conditions under which the landlord, who is of course the local authority, could make the change and get rid of one tenant and put in, in most cases, the wife. That is being removed.

Now the only way a tenancy can be changed is by application to the court, which is an expensive business; whereas an application to the local authority is a very simple business, and the local authority is used to doing it. The local authority is the landlord; it is the owner of the houses. I think that I said during the Committee stage, when I tried to persuade the Committee to this point of view, that the local authority does this every week and every month.

Why should we, in particular cases like this, now suggest that it must be done through the courts? I do not propose to change the power of the courts if an application is made to them. That avenue of change of tenancy will remain. Tenants in Scotland are mainly council tenants and a great many of the wives in such situations are the wives of council tenants. It is very much simpler to go to the council. It will cost them nothing and the councils know all about the situation in the home. Without making any change at all to what the Government propose as regards the courts, we could leave this in the Tenants' Rights (Scotland) Act so that a choice could be made by the applicant spouse. She could then make up her mind whether she wants to do it through the court or through an approach to the local authority. I beg to move.

Lord Drumalbyn

My Lords, I cannot help thinking that the noble Lord has a point. The more we can keep these matters out of the hands of the courts, the better. The court is there only as a last resort. Obviously, in a case of violence or something like that it would probably be impossible to deal with the matter in this way. But will there not be many marginal cases where it could be quite easy to go, in the first place at any rate, to the local authority and arrange for the change of tenancy? Everybody would then depart in peace.

Lord Wilson of Langside

My Lords, surely that is so. If the system—in accordance with which local authorities have been dealing with this kind of situation without complaint from parties concerned—has, as the noble Lord, Lord Ross, said, worked for many years, surely this right of theirs should be left as it is.

The Earl of Mansfield

My Lords, it may help if I set out the position in relation to transfers of tenancy from one spouse to another, where the local authority is the landlord. Prior to the Tenants' Rights, Etc. (Scotland) Act 1980, it is true that housing authorities were effectively able so to transfer a tenancy against the wishes of the sitting tenant. It was necessary first to obtain an order for summary removal from the sheriff, but this presented no difficulty because the sheriff was obliged to grant the order without any reasons being given. Under the 1980 Act the authority must first give the sitting tenant a month's notice of its intention to start possession proceedings and subsequently convince the court that it is reasonable to evict the existing tenant. Any action therefore falls to the housing authority, which may be reluctant to undertake the necessary proceedings when this Bill will enable the non-titled spouse to go directly to the court herself.

The practical effect of acceptance of the noble Lord's amendment would be to provide two available remedies to non-titled spouses. They could either go directly to the court under the Bill, or ask the housing authority to back the removal of the tenant on their behalf under the Tenants' Rights, Etc. (Scotland) Act 1980 (which merely serves to introduce an additional stage in the process). In both cases the court will have regard to the grounds for the proposed transfer of tenancy: the housing authority itself will not therefore exercise a crucial discretion because the pre-1980 position no longer applies. As I said in Committee, it was agreed that the 1980 Act provisions should be an interim device in the knowledge that the provisions in this Bill would be more satisfactory. Where the justification for a transfer arises from the marital situation, it is most unlikely that the 1980 Act provisions would be invoked in any event. It is undesirable to have overlapping legislation, and I would ask the noble Lord to withdraw his amendment.

I would say by way of summary that what he seeks to do would not have the effect of going back to the pre-1980 situation—that is, giving a wife the option of going to the housing authority for them to consider the matter and then, as it were, to decide in her favour and get a sheriff to rubber-stamp the application. That no longer obtains. All this amendment would achieve, if it were agreed to, would be to give the wife an extra hoop to go through before she could effect a change of tenancy. In other words, the sheriff court is going to decide the matter on its merits whatever happens, and we think it is much better that she should go to the court on the merits ab initio rather than have to go to a housing authority which itself then has to go to the court to decide precisely the same matters.

Lord Ross of Marnock

My Lords, I think the statement that the Minister of State made was right during the course of his reply to me—that is, that we would be giving an alternative. He says it will be an additional step. I am aware of the fact that we cannot go back prior to the Tenants' Rights Etc. (Scotland) Act 1980, because that is where a certain amount of the trouble comes in. It comes in on the basis of the fact that the tenant now has security of tenure, and the tenant is the husband.

But we wrote paragraph 6 of Schedule 2 into the Bill in order to give the local authority the power to go to the court to evict. It is not the woman who is going to the court to evict. If there is an expense, the expense is on the local authority. If I am wrong I hope that the Lord Advocate will put me right. It is not the woman who is evicting; it is the person from whom the tenant has security of tenure. That is the local authority. The local authority would take action. It would still be much simpler, as I have argued, for the applicant spouse, the woman in the local authority house, to get action taken as they do at the moment, because this is the only way they can do it under the Tenants' Rights Act.

I see nothing wrong with that. If they want to do it without reference to the local authority then they can do it directly into the courts. What is wrong in having the alternative? I am sorry that the Minister of State has not seen the advantages for a person in lowly circumstances in a local authority house first approaching the local authorities. They have been used to the procedure in the past, and they have been used to the procedure since the passing of the Tenants' Rights Act. I shall allow the amendment to be negatived. I shall not withdraw it.

On Question, amendment negatived.

Clause 13 [Interdict competent where spouses live together]:

The Earl of Mansfield moved Amendment No. 26: Page 15, line 18, leave out ("which the matrimonial home is situated") and insert ("the vicinity of the matrimonial home").

The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 15 [Procedure following arrest]:

5.16 p.m.

The Earl of Mansfield moved Amendment No. 27:

Page 16, line 21, at beginning insert— ("(1) Where a person has been arrested under section 14(3) of this Act the officer in charge of a police station may—

1. (a) if satisfied that there is no likelihood of violence to the applicant spouse or any child of the family liberate that person unconditionally; or
2. (b) refuse to liberate that person; and such refusal and the detention of that person until his or her appearance in court by virtue of—
1. (i) section 15(2) of this Act; or
704
2. (ii) any provision of the Criminal Procedure (Scotland) Act 1975,

shall not subject the officer to any claim whatsoever. (1A) Where a person arrested under section 14(3) of this Act is liberated under subsection (1) above, the facts and circumstances which gave rise to the arrest shall be reported forthwith to the procurator fiscal who, if he decides to take no criminal proceedings in respect of those facts and circumstances, shall at the earliest opportunity take all reasonable steps to intimate his decision to the persons mentioned in paragraphs (a) and (b) of subsection (4) below.").

The noble Earl said: My Lords, I shall speak to Amendments Nos. 28 and 29, if convenient. These important amendments come about following an undertaking I gave in Committee to reconsider the procedure which comes into operation following an arrest of an interdicted spouse under Clause 14(3) of the Bill. These amendments will achieve a significant modification of the provisions in the Bill as it was printed, and I hope will allay the misgivings expressed by your Lordships in Committee.

The main effect is to permit the police to release an arrested spouse if they are satisfied that there is no likelihood of violence to the applicant spouse or any child of the family. This is one of the factors which the court is required to consider under Clause 15(5)(b). Since there is obviously no point in requiring the court to consider whether further detention is appropriate, if the arrested spouse has been released by the police, in those circumstances the police will simply inform the procurator fiscal of the facts of the breach of interdict. He, in turn, will advise the applicant spouse and his or her solicitor so that they may, if they wish, raise an action for breach of interdict. Where the police decide to detain the arrested spouse to protect the other spouse and any children, the existing Clause 15(1) is amended so that the provisions of the rest of Clause 15 apply.

In this way it is intended that an interdicted spouse who is arrested for a breach of interdict may be released if the police consider that it is prudent, in the same way as he may be released if he or she is charged with a criminal offence. This will avoid the possible injustice under the Bill as at present drafted whereby the violent spouse could, in theory, be liberated but the spouse who merely breaches a matrimonial interdict in a non-criminal way would have to be detained. The amendments would not preclude the police from detaining a spouse against whom criminal proceedings are not to be brought, if they fear that he may commit violence against the other spouse or any children. I beg to move.

The Earl of Selkirk

My Lords, I think that this is an enormous improvement on what we had before. The points I had in mind when I spoke to it have been met. I am not all that good at the details of criminal procedure at an early stage, but I think that this is an enormous improvement.

Lord Ross of Marnock

My Lords, I approve of this. The only reason I hesitated was because it was probably wrong of me to try to look at this and the next amendment late last night when I was preoccupied with matters of the Prayer Book. I just wonder how this is going to read after it is finished. We have two amendments, Nos. 27 and 28, both of which say "Page 16, line 21, at beginning insert", and "Page 16, line 21, at beginning insert".

I tried to read this, but I could not make any sense of it. Which is going to be first and which second? Where is the word "fifteen" in the clause? Is it part of Clause 15 or a completely new clause, or what? It may be simply that I was confused last night, but I am still confused after the vote of the House on the Bill concerning the Prayer Book. As a good Presbyterian, I didna' vote.

The Earl of Mansfield

My Lords, not for the first time, the noble Lord, Lord Ross, has put his finger on the spot. The clause may now be too long, and the draftsman is considering whether to chop it up and make it into two clauses, so making it more comprehensible.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 28: Page 16, line 21, at beginning insert ("the following provisions of").

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 29:

Page 16, line 21, after ("where") insert— ("(a) the non-applicant spouse has not been released under subsection (1) above; and (b)").

On Question, amendment agreed to.

Clause 16 [Occupancy rights of cohabiting couples]:

The Deputy Speaker

My Lords, I have to tell the House in calling Amendment No. 30 that if it is accepted, I shall not be able to call No. 31.

The Earl of Selkirk moved Amendment No. 30: Page 17, line 37, leave out from ("other") to ("in") in line 38 and insert ("and are by habit or repute living as man and wife").

The noble Earl said: My Lords, this amendment deals with the question of cohabitation and I am wondering whether there has not been an undue mixture in the way this provision has been drafted between what I might call the judicial and the administrative aspects of cohabitation. It appears that if a man and woman are living together for a week-end, they might find they have grounds for a grant of occupancy. True, they must apply to the court, but this differs substantially from the report of the Scottish Law Commission in that that had in mind only a limited period, whereas the Bill makes the time unlimited, it seems. In other words, once people have cohabited, they may be granted by the court an extended period of occupancy when one of the spouses has gone away.

That seems to be putting a very heavy burden on the court. This is not altogether a question of law, but of the circumstances of the case in which the people are living together. I have put in my amendment words which are well known—namely, if a man and woman are living together in a house and are by habit and repute man and wife—which would make the position more understandable. I might mention at this point that there is an error in the amendment in that it should read "by habit and repute" and not, "habit or repute".

I wonder how long you must live with somebody as man and wife before any sort of obligation should arise. Under the Bill we have the obligation of responsibility arising straight away, and I should have thought that was too short a period. One would then possibly be entitled to go before the court—I suppose it would depend on the social circumstances—for an indefinite and continuing period of occupation. True, you would have to come before the court every six months, but by the time you had done that a few times, I dare say it would become nearly automatic.

It is really a question whether we are putting an excessive burden, which is not entirely judicial, on the courts, leaving them to be judges of the whole circumstances of the way in which people who are living together should be treated. I should have thought there was no obligation in respect of a very short period of cohabitation, although it might arise in due course if it continued over a given period. I have suggested the phrase "by habit and repute" because it is well known, but the Minister may have something else in mind. I suggest the provision as drafted is too wide and needs amending. I beg to move.

Lord Ross of Marnock

My Lords, I do not know what the Government's attitude to this is, but I could not accept the amendment because I have a certain respect for old Scottish phrases and their meaning. The amendment says the couple are by habit or repute living as man and wife".

The Earl of Selkirk

My Lords, I said there was an error; it should read "habit and repute".

Lord Ross of Marnock

"Habit and repute" is the well-known phrase, my Lords, but it refers to people who in what was Scottish law were actually married; they were not living as man and wife but were married and the situation was that people living together could call themselves by their names if there was no other bar to marriage; they were married and that was legal in Scotland. The noble Earl has put the two things together; namely, cohabitation and this perfectly respectable phrase in Scottish law and life.

Nor am I happy about the phrase in the clause, "living with each other"; what is wrong with "together"? It refers to "man and wife", whereas I have an amendment referring to "husband and wife". If the Government will not accept any change, then I shall be reasonably happy with the provision, but I should prefer my amendment to the one now before the House.

Lord Fraser of Tullybelton

My Lords, in my view the noble Lord, Lord Ross, is right because "habit and repute" suggests they are reputed to be husband and wife, whereas I should have thought the clause was intended to deal with the case of people who nobody supposed were married but whom the general public knew were living together. If that is the case, then the amendment would not seem appropriate.

I wish to raise another difficulty, although it does not arise directly out of the amendment. I find considerable difficulty in understanding what the clause really means. It provides that if a man and woman "are living"—not "have been living" but "are living"—as if they were husband and wife, and it appears that the man and the woman are a cohabiting couple … the court may … grant occupancy rights … not exceeding three months … to the non-titled spouse". That seems to visualise a perfectly happy and stable union of non-married people and then suddenly, for no reason and in the middle of it, a non-titled spouse comes along and asks for an occupancy order. That may be what is intended; if so, it seems very strange. I should have thought that what was really meant was that if the man and woman have been living there for some time and they break up, then an occupancy order can be granted. Perhaps the tenses have gone wrong in the drafting. Be that as it may, I suggest the amendment is not appropriately worded.

The Earl of Mansfield

My Lords, over the choice of phraseology, I agree with the noble and learned Lord, Lord Fraser of Tullybelton. "Cohabitation by habit and repute" is the only form of irregular marriage still recognised by the law of Scotland, and it is, I am informed, necessary that the parties have the intention of marriage, and that need not be the case with persons who are simply cohabiting or living together. The Bill is intended to provide a limited protection to a non-titled partner in such circumstances, even where there is no intention of marriage. The amendment would remove such protection from all but a minority of cohabiting couples. Indeed, this criterion is very much stricter than the period of cohabitation, of three months, which my noble friend was in Committee inclined to regard as acceptable. I do not at the moment propose to speak to my Amendment No. 34, except to say that I think that this is another instance where it is perfectly right and proper for such questions to be decided by the court in its discretion.

I should like to take up the point made by the noble and learned Lord about the word "are". I do not think it is envisaged that what was no doubt an agreeable and stable relationship at its inception has deteriorated to the point where the parties are no longer living together. The kind of example that springs to mind is one where the parties are still living together, cohabiting, but the relationship has deteriorated so that there occurs what might be called a Friday night incident in which most probably the male part of the union will arrive home, have supped well rather than wisely, and then offers violence to his unfortunate mistress. It is that kind of situation that is taken care of by Clause 16 of the Bill. So I hope that the noble and learned Lord is now content, and that my noble friend will withdraw his amendment.

The Earl of Selkirk

Yes, my Lords, I shall be very happy to withdraw the amendment. Of course the noble Lord, Lord Ross, is quite right; I entirely accept what he says. I must say that this was intended as a fishing amendment. I wanted to hear what the noble Lord had to say. However, I am not quite sure about the present situation. Amendment No. 34 refers to the time for which it appears they have been living together". It is very difficult to establish when a love match started. One of the reasons for marrying someone is to make the union quite definite. But a couple might have been living together in Cardiff, then in Northampton, and then in Glasgow. How is it to be known for how long they have been living together? This is the problem. The relationship should be related to habit and repute; in other words, people accept that the couple have been living together. I know that those are not the right words, but there should be a provision of that kind; otherwise I do not know how the courts will decide such matters. However, I shall not press the matter any further, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock had given notice of his intention to move Amendment No. 31: Page 17, line 38, leave out ("man") and insert ("husband").

The noble Lord said: My Lords, this amendment refers to the decision of the court. If the court decides that the couple are a cohabiting couple, the most that the court can do is to give the applicant partner (I think that is the correct term this time) continued occupancy for not more than three months. Here I might be anticipating Amendment No. 34, which the Government have very wisely tabled; it is a very good amendment. But when one bears in mind that the court has to decide the time—

The Earl of Mansfield

My Lords, I do not wish to interrupt the noble Lord, but is he speaking to Amendment No. 31 or No. 32?

Lord Ross of Marnock

I am not moving Amendment No. 31, my Lords. I wish to move Amendment No. 32. I am not moving Amendment No. 31 because if it were accepted, then in one or two other cases there would be need to put down amendments.

[Amendment No. 31 not moved.]

5.34 p.m.

Lord Ross of Marnock moved Amendment No. 32: Page 18, line 4, leave out ("not exceeding 3 months").

The noble Lord said: My Lords, I beg to move Amendment No. 32. A period not exceeding three months is the maximum that the court can in the first instance award to the applicant spouse. In the first instance the court has had to decide whether the couple are cohabiting. It has to look at the period for which it appears that they have been living together and see whether there are any children of the relationship. The couple might have been living together for three weeks or three months. On the other hand, as might be within the personal knowledge of noble Lords, some of these couples might have been together for 20 years. It was only fairly recently that we changed the divorce laws in Scotland. It might well be that, because of the bar to divorce, couples have been cohabiting for 20 years—probably for far longer than some married couples. Despite that, the upper limit that the court can grant is to be three months. I am not putting in another figure in my amendment. I merely leave the matter to the discretion of the court, and in order to cover all the cases that might well arise I think that it would be fair to allow the court to go beyond a period of three months if it felt so satisfied. The court might give unlimited occupancy to a particular applicant partner.

That being so, I think it would be quite wrong for the Minister of State to get up and say, "Ah, but it is not just three months, because it is only three months in the first instance, and they can come back to the court which can give them another spell, another spell, and yet another spell". Why should people who, perhaps virtually for a lifetime, have been in a stable relationship, where there might have been a bar to marriage, be put through all this trouble and uncertainty when it is not merited? The only way to get away from that is to give full discretion to the court. We have already decided what the court must take into account in deciding whether the couple are a cohabiting couple. I am perfectly sure that there will be many cases of the type which I have in mind, and it would be unfair to tie the hands of the court to a period not exceeding three months. I beg to move.

Lord Drumalbyn

My Lords, I would invite the House to look at this question in a little more depth. In this clause we are dealing with the question of how far, if at all, should the Scottish Law Commission's recommendations for occupancy rights of married couples be extended to two individuals who are living together as man and wife—a cohabiting couple. What does the commission say about the question? It says: It is clear that no right can be conferred by operation of law …", and it could be obtained only by application to the court in an individual case. That has to be compared with Clause 1, which sets out what is a major change in the law of Scotland, and it applies to married couples.

The commission says—I am paraphrasing here—that marriage involves a mutual commitment to be ended only by death or the court. It is a legal estate, and an honourable one, and it contrasts with cohabitation. The commission says that it thinks that the differences between a married couple and a cohabiting couple must be reflected in the extent of the respective occupancy rights which it is proper to confer on them. One wonders, why should it be proper to confer any right upon them? The commission goes on to say that: The law should in our view seek to make available an occupancy right which is appropriate to the legitimate expectations of the unmarried partner …". It concludes that it would be "legitimate" for an unmarried mother to expect to be allowed to continue in occupation of the home—that is the house in question— during such period as he or she may require to secure alternative accommodation following upon the end of cohabitation". At first the commission thought that a maximum of three months might do. On further reflection it thought that that might not be enough, and it suggested that the period should be, capable of being extended by the courts for one further period of not more than three months". That was the commission's recommendation. So what have we here in the Bill? We have a period of three months, capable of being extended for a further period or periods, no such period exceeding 6 months". That completely transforms the recommendation of the commission from a brief period—to enable the spouse who is not entitled to possession to find somewhere else to live—to a licence to continue cohabitation indefinitely, against the will of the person entitled to possession, so long as the court is willing to acquiesce. That is the transformation.

Now the noble Lord, Lord Ross, wants to leave out the words "not exceeding 3 months" and give the court complete freedom to specify any period of time, from a day to a decade, plus the power to renew the licence at 6-monthly intervals thereafter. It seems to me that the noble Lord has failed to appreciate that to specify the 3-month period would at least give the court, and for that matter the applicant and the legal advisers, some indication of the time which the commission and the legislators have in mind.

It is not all that difficult, after all, even in these days, for an unmarried man or woman to find a room, even if he or she has no relations to go to; but difficulty could arise if there were a child, and I suggest that if either the cohabitors agreed or the court decided that the child should go with the applicant, a longer period than three months might be required, though not necessarily. Therefore, it seems to me that at any rate the period of three months should remain in the Bill as an indication of what the commission and, I take it, the Government have in mind, and, as for dealing with the child, this could be achieved by my next amendment.

The Earl of Mansfield

My Lords, the basic view of the Scottish Law Commission on this matter was, first, that there are no legal ties, as there are in marriage, so that the legitimate expectations of the partners should be less; and, as my noble friend Lord Drumalbyn has quite rightly pointed out, the main purpose of the occupancy right for a cohabiting partner in this instance is to provide sufficient time to find alternative accommodation. Secondly, it is right that the Scottish Law Commission had second thoughts as to the form of relief that it wanted to give.

I say that it would be wrong for the right to exist indefinitely, as is presupposed by this amendment, because, for instance, where a marriage breaks down the occupancy right terminates on divorce. It would be scarcely sensible to give a cohabiting partner a longer right of occupancy than a spouse, so the Government feel that the interim provision is right in these circumstances and that three months is not inflexible, because the court can grant extensions. Particularly will this happen, no doubt, where there are good reasons for the partner not finding accommodation within that period, and one supposes that the courts will go into all these matters before granting an extension.

Again I think that the criteria, if you like, or the matters which a court will have to take into consideration, are set out, as it were, in Amendment No. 34, which I shall not refer to any more. I think that on reflection the noble Lord, Lord Ross, will see that in fact his amendment would give a partner far greater rights than were ever thought proper by the Scottish Law Commission and greater rights than have been given to a married partner in these circumstances.

Lord Ross of Marnock

I do not think so. They have not got the right to go to the court for a change of tenancy; and, of course, the extent of the right will depend on the judiciary. It will be absolutely open to the judiciary, first to turn down the application or, secondly, to grant two months, three months, four months or six months. I am prefectly sure that within his legal experience the Minister of State must have come across cases where it would be unfair to differentiate to this extent, and to limit the initial period of protection to three months, with the periodic trailing to the court for another six months, another six months and another six months. Why not leave it to the courts? Why not trust the courts?

On Question, amendment negatived.

5.45 p.m.

Lord Drumalbyn moved Amendment No. 33: Page 18, line 5, after ("that") insert ("where there is a child of the cohabiting couple living with them").

The noble Lord said: I do not think I need speak at any length on this because I believe I have made the point already. It is quite a clear one. In my view the initial three-month period will probably do where there is no child, but where there is a child more permanent arrangements may have to be made, obviously, and they may go on for quite a time. But if, as I presume to be the case, what is involved here is the substitution, so to speak, of one tenant for another, or indeed of one occupier for another, at any rate—and it seems to me that that is bound to be the case—then the shorter the period the better. Either you are going to go through a transfer of occupancy of the house for a considerable time or else at the end of the period that is laid down as a maximum by the court, whether increased or not, the original occupier is presumably going to come back; but he is almost bound to be excluded unless it is possible to divide the house, and that may very often not be possible.

So, as I say, the most likely situation in which the house will be handed over from one to the other, from the one with the legal title to the one without, is where there is a child and where whichever of the spouses has custody of the child will continue to occupy that house with the child or children, and will bring them up there. Therefore, I would have thought that extensions of the period are only justified where there is a child. I beg to move.

The Earl of Mansfield

My Lords, I accept that one of the main justifications for the extension of the initial three-month period of occupancy rights in the house is to protect innocent children from suffering unreasonably from the breakdown in the relationship of the cohabiting couple. But there may be other dependent members of the household—there may, for instance, be an aged parent of one or other of the partners—and I suggest that they, too, should be considered. I certainly do not consider it desirable to fetter the court's discretion in this way. Normally, courts will have regard to the presence or otherwise of children, and I have no doubt that an extention will be granted less readily where there is no impediment to the non-titled partner finding and moving to a new address on his or her own.

The requirement that the child should be living with the couple conflicts with the definition in Clause 20 of "child of the family", which includes a child who could normally be expected to reside with one of the parents. So, for instance, if there was a child who was unfortunately enjoying (if that is the word) a long stay in hospital, such a child would be excluded by this amendment.

In summary, I think that my view, and certainly the Government's view, is that to require the court to have regard to the existence of the children is one thing, but to try to fetter the court's discretion to act in a particular way is quite another. In those circumstances, I hope that my noble friend will see the force of my Amendment No. 34, and will withdraw his amendment.

Lord Drumalbyn

My Lords, I certainly accept (in fact, I noticed it myself after putting in the amendment) that the words "residing with" are not appropriate. The child might be temporarily residing elsewhere; but that is a matter that could easily have been amended. I recognise there are other conditions that the court may have to take into consideration. I do not propose to press this amendment, but I intend to make clear my view that the number of considerations which would warrant the court continuing for a considerable time the occupancy of the partner with no title to the house are limited and they should be used with discretion. "Discretion" is the word. There is a wide discretion given to the courts in this matter, far wider, in a way, than is given in the rest of the Bill. I am sure that that is proper but I think we ought to lay down broad lines within which that discretion should be used. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 34:

Page 18, line 6, at end insert— ("(1A) In determining whether for the purpose of subsection (1) above a man and woman are a cohabiting couple the court shall have regard to all the circumstances of the case including—

1. (a) the time for which it appears they have been living together; and
2. (b) whether there are any children of the relationship.").

The noble Earl said: My Lords, on Committee I undertook to consider further the definition of "a cohabiting couple" and, in particular, to take account of some of the factors which my noble friend Lord Selkirk suggested. Two of them were whether there are any children and, secondly, how long the couple have been living together. However, I remain of the view that the courts are well able to reach a sensible conclusion in such eventualities. It is not therefore intended that rigid criteria shall be laid down to fetter the courts' discretion but rather that the courts shall be required to have regard to certain factors. At the end of the day the court will make up its mind on the basis of all the facts made known to it. The particular factors mentioned in the new subsection would almost certainly be considered by the court in any event, but the Government acknowledge that there is advantage in their inclusion in the Bill as unambiguous guidance for the court's benefit. My Lords, I beg to move.

The Earl of Selkirk

My Lords, I am grateful for the improvement here. I cannot wholly agree that this is a judicial matter. Of course, the courts can come to any decision, but to a great extent this is not a judicial matter. I take it it will be the sheriff's court. It is difficult for them to do. I agree with my noble friend Lord Drumalbyn that we ought to try to give them more guidance if we can. If the courts themselves are happy to deal with this—and I must say it is a difficult one—I do not think I will comment more than to say that it is a step forward. It does not go as far as I think it ought and I think it will be a difficult decision for the courts to take.

Lord Drumalbyn

My Lords, may I say that, unless it is already clear on the face of it that the couple are cohabiting, it will be extremely difficult on the basis of certainly the first consideration—the time in which it appears they have lived together—for the court to come to any decision. There are hundreds and thousands of men looked after by women who, without being married, live under the same roof for many years. They do not cohabit in the ordinary sense of the word. I suppose it may be that at some stage for some reason an application might be made. I suppose it will be a rarity but all the same there is the possibility. I do not deny that the consideration is germane, but I doubt whether it should be elevated into one of the two main criteria in this case.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 35: Page 18, line 15, leave out ("of") and insert ("residing with").

The noble Earl said: My Lords, this amendment is necessary to provide for the interests of children who are living with the cohabiting couple but are not the product of their liaison. For example, one or other of the partners may still be caring for the children of a previous marriage or relationship. It is intended that the safety of all the children of the household should be protected. My Lords, I beg to move.

The Earl of Selkirk

My Lords, the only point is that you leave out a disabled dependent who might be there, too. It may be a remote chance and perhaps we should not carry it too far. He may not be a child; he may be disabled and dependent on perhaps the mother to look after him. I ask the noble Earl to look at that.

The Earl of Mansfield

My Lords, this is a permissive part of the clause and not exclusive. It may be that other relatives or people who are being looked after by one of the partners could be considered by the court when it has regard to all the circumstances of the case.

On Question, amendment agreed to.

Lord Drumalbyn moved Amendment No. 36: Page 18, line 19 at end insert ("and the words "The court" to "matrimonial home; and" at the beginning of subsection (3)").

The noble Lord said: My Lords, I suppose I shall be told by my noble friend that this amendment is not necessary. What it does is to spell out some words in subsection (3) being applied to Clause 16. The text reads: section 3, except subsection (1)(a)". Subsection (1) of Section 3 states: Where there is a titled and a non-titled spouse, or where both spouses are entitled, or permitted by a third party, to occupy a matrimonial home, either spouse may apply to the court for an order— (a) declaring the occupancy rights of the applicant spouse". In this case there would not be occupancy rights; and then subsection (3) again relates to subsection (1)(a). I am not sure whether this is necessary because it may be that, once you block out (1)(a), you also block out the first few words of subsection (3) which this amendment would propose to add to the end of this particular line of the Bill. Perhaps my noble friend can tell me. I thought it worth putting it down, just in case.

The Earl of Mansfield

My Lords, I appreciate my noble friend's intention in moving this amendment. However, I am advised that it is not essential since by disapplying subsection (1)(a) in the first place, any subsequent references to it are automatically disapplied, too, since this is a necessary modification.

Lord Drumalbyn

My Lords, before leaving subsection (3) may I thank my noble friend for the amendments that he made earlier following upon suggestions that I made. I had omitted to thank him earlier. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Lord Drumalbyn

had given notice of his intention to move Amendment No. 37: Page 18, leave out line 23 and insert ("section 12, where and only where there is a child of the family; sections 13 to 15;").

The noble Lord said: My Lords, this is along the same lines as an amendment I moved before. Therefore, I shall not move this amendment.

Lord Drumalbyn moved Amendment No. 38: Page 18, line 27 at end insert ("where the cohabiting couple are cohabiting").

The noble Lord said: My Lords, this is purely a textual amendment. It seems odd to replace the words "matrimonial home" just with "a house". I beg to move.

The Earl of Mansfield

My Lords, I am again grateful to my noble friend but I do not think his amendment is strictly necessary. If one goes to the earlier part of the subsection one sees that it reads: (2) If an application under subsection (1) above is granted, or if both partners of a cohabiting couple are entitled, or permitted by a third party, to occupy the house where they are cohabiting, the following provisions of this Act …". It is not strictly necessary. If my noble friend is rather determined on this point and is minded to shout "Content", then I shall not shout "Not-Content".

Lord Ross of Marnock

My Lords, will this mean in any way a change in the definition of matrimonial home?

The Earl of Mansfield

No, my Lords.

Lord Ross of Marnock

My Lords, while I am on my feet, may I apologise to the Minister of State? I misled the House a short time ago when I said the applicant partner had no right to apply for a change of tenancy. The partner has a right. I was misled by the fact that the noble Lord, Lord Drumalbyn, in an amendment that he did not move, was going to make a change in respect of Clause 12 to limit that right.

Lord Drumalbyn

I am very grateful, my Lords. I do not know what to say. On the whole, the fewer the words the better. If my noble friend is satisfied that the words are unnecessary, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 39: Page 19, line 11, after ("his") insert ("or her").

The noble Earl said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

Lord Drumalbyn moved Amendment No. 40: Leave out Clause 16.

The noble Lord said: This shows clearly, my Lords, that I am not enamoured with this clause. I regard it as a blemish on a very considerable and desirable social reform. Clause 16 is fundamentally different from the rest of the Bill. Clause 1 confers for the first time in Scotland a new right of occupancy on a marriage partner who has no legal title to occupy of the matrimonial home.

The Scottish Law Commission intended this statutory right to be what it called a normal incident of marriage, not just a right to be involved and conferred by a court in moments of marital stress or crisis; whereas this clause deals with cohabitation which is no more than an illegitimate relationship to marriage. Cohabitation involves no legal rights or obligations. It is not marriage and there is no matrimonial home. It has no place in the Bill dealing with marital rights, in my view. Wisely, the Scottish Law Commission did not attempt to equate the protection given to partners who cohabit with that given to married couples.

The occupancy rights proposed in the Bill for a non-entitled cohabitor are enjoyed not as of right but at the discretion of the court and for a period limited by the court. Such limitations in themselves raise problems. I do not think we have adequately discussed this limited extension of the principle of occupancy rights to cohabitors. My reason for moving this amendment is to draw attention to that view of mine which other noble Lords may share. It is too late to discuss this at length now. I feel that more consideration, study and research is needed before Parliament commits itself to such an extension. I hope that it will get this further consideration when the Bill moves to another place. I beg to move.

The Earl of Mansfield

My Lords, I appreciate my noble friend's concern about these matters. If I say to him that it might have been better if we had dis- cussed the matter in Committee, I hope he will not think that I am offensive. It would have perhaps led to a better debate than is possible in a rather discursive and wide-ranging subject as the rights of non-married people living together would normally enjoy.

I hesitate to say this but in England and Wales now for some years there has been a growing if still limited judicial and legislative acceptance that there are circumstances when legal remedies which are applicable and available to married couples should also be extended to couples that were not married. I think that there is no area where it is more fitting and proper that these rights should be extended than in the field which is all too common and tragic where very frequently women are the subject of violence in the matrimonial home from their husbands or partners in this instance. I hasten to say that I do not take a sexist view of this matter any more than the Bill does. It is very careful not to draw distinctions between the sexes at any point at all.

I think that in common sense we must all appreciate that this problem of battered wives is a growing one. It is one which society must recognise. In my view, quite rightly, the Scottish Law Commission have reflected the view which is growing throughout the United Kingdom that these unfortunate people deserve the protection which the court can provide in such instances. That is the reasoning behind the inclusion of Clause 16 in the Bill. Speaking for myself, it is one I heartily approve of and endorse. How far that protection should go is no doubt a matter of argument and degree. All the Government can do in such instance is to take account of the views which have been expressed from many different quarters and to reflect those views by inserting a provision such as this into this particular Bill.

I appreciate that my noble friend's concern is not to withdraw such rights from unmarried people living together so much as to reflect his unease at the way in which the law is moving. I think it is a matter which courts are perfectly able to investigate and determine. If I have any quarrel with my noble friend Lord Selkirk, it is that, certainly from my experience at the English Bar, courts have absolutely no difficulty in establishing the facts where one gets matrimonial conflict, and they do their best to provide equitable and fair relief. It may not be a duty which either the judge or indeed the practitioners particularly enjoy. Nevertheless, it is something which courts are well able to do and which they do, unfortunately, on a daily basis in all the courts of our land.

For those reasons I am quite sure these matters will be gone into at considerable length in another place. It is right and proper that they should, but as we have this clause now as amended, I think it is a good clause in that it can provide a welcome measure of protection to people in this particular situation. I hope that on reflection my noble friend will take the same view.

Lord Ross of Marnock

My Lords, may I say that I am very glad indeed that the Minister has resisted the amendment to leave out the whole clause. It does not mean to say that we approve of the tendency of people today to by-pass marriage for one reason or another; but let us remember what we are dealing with, and what led originally to the Bill was the need for protection. We are talking within the context of violence in the home, whether it is a matrimonial home or whether it is a home inhabited by a cohabiting couple. I do not think the noble Lord, Lord Drumalbyn, will be satisfied to accept the position that there is almost an invitation to violence where we do not afford the protection of the courts and the right to continued occupancy.

We have to face the fact that this position exists. We may not agree with it or approve of it but we have to face the consequences; and if we are trying to curb violence and, if we fail to do that, to prevent the family from being treated in such a manner as would injure them physically and mentally, then we cannot deny that protection to this new form of relationship, which does not amount to a husband-and-wife situation but to something similar thereto. It is the violent aspect of it and the occupancy aspect which is a consequence. It is that we are dealing with, and I think we would be very unwise indeed to seek to remove Clause 16.

The Earl of Selkirk

My Lords, I am delighted at the optimism of my noble friend and I hope he is right. I confess that I find it a little difficult to accept cohabitation as being halfway to marriage. I do not really know whether one can take that view, but that is what this Bill seems to do. I do not know whether statutory rights at law of cohabiting couples have ever been put before the House prior to this, but I am bound to say I think my noble friend ought to look a little more closely at what the noble and learned Lord, Lord Fraser, said.

Supposing a man and wife are not living together, does the clause fall? I do not know, but on the face of it, it does. I do not think that is the intention. Also, I have been wondering what evidence will be given when the court is asked for another six months. It is going to be very difficult for the court to turn that down. I have no doubt somebody else will be saying, "the house should be vacated now", but it is going to be a very difficult decision for the court and I only hope it will not cause undue difficulties to the sheriffs concerned.

Lord Drumalbyn

My Lords, I am grateful for what noble Lords have said on this question, which I recognise is a difficult and somewhat distasteful one. One does not like to challenge a recommendation of the Scottish Law Commission on a matter of this kind, but I cannot help feeling it might have been better to have obtained experience of the working of the rest of the Bill before introducing this clause, which could have been introduced as a separate Bill and possibly elaborated to a considerable extent. There is the fear that the right to seek occupancy from the court will be abused. If this is retained, we shall just have to wait and see. Human nature is not that straightforward, and there are possibilities for blackmail and the like. I am not sure, either, that we can be really satisfied that the question of violence cannot be dealt with in other ways. There is already legislation for England, I believe, which deals with violence in the home in other ways.

I hope it is not being suggested that I have taken a sexist view; that was mentioned by my noble friend. He himself said that he had not taken a sexist view, and I do not either. I think the abuses can be both ways in a case like this. My noble friend also mildly rebuked me—I am grateful for the mildness—for not having raised this before. He is quite right. However, it was only during the course of the Committee stage that I started—let me confess it—to consider the whole Bill seriously. He suggested this question should have been considered at greater length in Committee stage. I think I am right in saying that only four Peers spoke on Committee stage and there were far fewer Peers here then than there are now. There it is. I apologise to my noble friend for not having gone into this before. His tone indicated that in his view this is a clause which ought to have been discussed at greater length and at an earlier stage than it has been.

I cannot help deviating a little from this particular amendment and wondering whether, in dealing with Bills of this kind which are introduced into the House of Lords for the first time, it would not be better to take the Committee stage elsewhere. In such a case almost certainly more Scottish Members would be present than are here now. It could be dealt with at greater length and more fully; and of course it is always open to any Peer who is not "of the committee", as we say, to attend and speak. I am inclined to think that a social Bill of this kind, when introduced into your Lordships' House in the first place, is best committed to a committee elsewhere.

I have nothing further to say on this except that I was advised it was right, in leaving out this clause—the only one which deals with cohabitation—to cut out the references in the Title to cohabitation. I do not propose to move the later amendments, and, with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Interpretation]:

6.28 p.m.

The Earl of Mansfield moved Amendment No. 41: Page 19, line 39, after second ("child") insert ("of whatever age").

The noble Earl said: My Lords, I move this amendment with some hesitation because I am not sure that the phraseology is such that it will achieve what it is intended to achieve. Therefore I shall move it formally and it may well be that if noble Lords have matters to put forward in connection with it I will consider it again. I beg to move.

The Earl of Selkirk

My Lords, it may seem odd, but I think it is a good thing.

Lord Fraser of Tullybelton

My Lords, may I say I think that the noble Earl is quite right not to press the wording of this amendment. In my view, it is obviously unhappily worded, because if this amendment were made the definition would then read: 'child of the family' means any child of whatever age who resides with or who could normally be expected to reside with either spouse;". It does not say whose child, so that it means any child of any person of whatever age who resides with them —that is what it means. If that is what is really intended, then the words "second child" ought not to be there. It ought to be the word "person" and then we would have: 'child of the family' means any person of whatever age who resides with or who could normally be expected to reside with either spouse;". That is what it means, but I do not suppose for a moment that that is what the draftsman intended. He has fallen into confusion.

If one talks about "any child" then that child may be young or old; he may be an adult. I am the child of my mother and father, but I am no longer a child. If one is going to talk about a child of whatever age without saying who's child, then one necessarily means a person in their minority who is not yet a grown-up person. This clause has fallen into the error of muddling up the two things. I venture to suggest that what is really intended is something such as the following, even though it is a hasty drafting and not one that I suppose will pass muster: 'Child of the family' means any child of either spouse and any person who has been accepted as one of the family by both spouses, whatever the age of such a child or person may be". I have adapted that from the Divorce (Scotland) Act 1958, which talks about a child of one spouse who has been accepted into the family by the other. That seems to be the sort of underlying notion here, except that in this case it has to be accepted by both spouses. As it stands, the amendment is wholly unsatisfactory in my view.

The Earl of Mansfield

My Lords, I am very grateful to the noble and learned Lord for putting forward his doubts, and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 42 to 45 not moved.]