Matrimonial Homes (Family Protection) (Scotland) Bill [H.L.] (Hansard, 14 April 1981)

§ The Minister of State, Scottish Office (The Earl of Mansfield)
My Lords, I beg to move that the Bill be now read a third time. It represents an important piece of social legislation, which follows the publication in July last year of the Scottish Law Commission Report on Occupancy Rights in the Matrimonial Home and Domestic Violence. The Bill confers on the spouse who is neither the owner nor tenant a right of occupancy in the matrimonial home as an incident of marriage. It gives to the courts the power to make that right effective, and it provides for various matrimonial interdicts to protect the occupancy right of the spouse without title. The Bill also provides limited occupancy rights for unmarried cohabiting couples.
At the heart of the Bill is a significant modification in the rights which may be exercised within marriage in favour of wives in the great majority of cases. This is a change which has been widely welcomed by your Lordships. The Bill does however strike a balance between making those rights effective and ensuring that the interests of the other spouse and third parties are protected.
It has been apparent during the Committee and Report stages that some anxieties remain. On the one hand, there is a fear that despite the worthy objectives of the Bill, it may not have the effect in practice which is intended and wives who are at risk of domestic violence will discover that their plight is not improved as effectively as it should be. On the other hand, there is the apprehension, which my noble friend Lord Selkirk has cogently expressed, that in a desire to protect the wife there is a risk of tilting the scales rather too far in her favour and causing unnecessary hardship to the husband and possible prejudice to the rights of "innocent" third parties. The Government are very conscious of their responsibilities in this respect and we have amended the Bill at our own hand to take account of your Lordships' reservations in an open minded and flexible manner.
I hope therefore that the present Bill, as amended, has resolved many of your Lordships' misgivings, but I accept that some may remain and I should like to explain the Government's general position on three such aspects. There has been some unease about Clause 16 which provides limited occupancy rights for cohabiting couples. The Bill follows the thinking of the Scottish Law Commission in not seeking to provide the same rights for cohabiting couples as the Bill confers on spouses. The rights available to them are substantially less than for spouses. However, the Government have taken a rather more liberal line than the commission in one respect: by permitting the rights to last, where the court thinks fit, beyond the six months which the commission proposed as an absolute maximum. We would expect six months to suffice in the great majority of cases but we are convinced that a measure of flexibility is essential.
The Bill as now amended gives the court guidance on the factors to which it should have regard in determining whether or not a couple are cohabiting. I think that the Government's general policy must be accepted as being both fair and compassionate.
869 Another area of difficulty is the position of third parties such as creditors. Clause 6 protects the wife's rights from a dealing by the husband where she has not given her consent. This will require some changes in the practices of solicitors and building societies in relation to house purchase and conveyancing. As long as the consent is obtained, wherever it is needed, there should be no problem. It is, of course, open to the court in certain circumstances to dispense with the consent—for example, where it is unreasonably held. The approach adopted in Clause 6 seems sensible; it is one which should cause no difficulty unless dishonesty is involved. The provisions in this part of the Bill are of a highly technical nature and will no doubt receive further scrutiny in another place, but I am satisfied that they are based on a sound principle.
A final point of difficulty for your Lordships, on which it is clear that there is much strong feeling, does not relate to the substance of the Bill but rather to its form. The Bill is intended to be completely neutral as between the sexes. Moreover, the man at work and woman at home pattern of family life is no longer universal. The Scottish Law Commission's draft Bill therefore uses the terms "titled" and "non-titled" in relation to the spouses' rights in the matrimonial home, and "applicant" or "non-applicant" in relation to the spouse who has raised action in the court under the remedies provided by the Bill. These terms have been criticised as clumsy, inelegant and unnecessary. They have not, however, been subject to any censure as confusing in respect of their meaning. I think this is significant. For that reason, the Government were content to retain them despite their novelty. In sometimes difficult and technical subsections, at least it was clear what was meant. However, the Government concede that, given the emphatic view of your Lordships on this point, we are bound to reconsider it and search for more appropriate and yet concise forms of expression. It appeared in Committee that "non-applicant" had caused the greatest offence. But "non-titled"—which to the draftsman is at least the more defensible term—was resoundingly rejected in last week's Division on Report. I accept that the Government must now consider alternative terms which will both keep the meaning clear and comprehensible and also meet the stylistic requirements of another place and ultimately of your Lordships. I myself hold comprehensibility as the primary objective. Frankly, this will be no easy task. It is not a responsibility which we believe can be fulfilled to everyone's satisfaction. Nevertheless, I accept that it is a matter to which we must apply ourselves. It may be that we shall have to come back and ask your Lordships to reconsider the matter in the light of the proceedings in another place.
I am grateful to several of your Lordships—in particular the noble Lord, Lord Ross of Marnock, and my noble friends Lord Selkirk and Lord Drumalbyn—for the stimulating analysis of the principles which provide the essential justification for the Bill and for your scrutiny of the often complex provisions to achieve what I think we all accept are thoroughly laudable ends. My Lords, I beg to move that this Bill be read a third time.

§ Lord Ross of Marnock
My Lords, I think we are all grateful to the Minister of State for his handling of this Bill. He lost the head on just one occasion, and he is going to pay for it now, because the Government, having proved themselves flexible during the consideration of the Bill in Committee and on Report just on one amendment which we forced upon them, have left the position of the Bill imperfect and, whether they like it or not, they will have to reconsider matters. If they do it in the spirit in which they approached the rest of the Bill, I am perfectly sure everyone will be pleased.
The noble Earl said that comprehensibility was what he thought most important. I agree that it has a priority, but, where we are dealing with violence in the home and seeking to give protection for the affected spouse or family, it is more than comprehensibility that we want. We want ease, simplicity and comprehensiveness in the exercise of the new right that has been given. I think it is easier now than when the Bill started because before the Government produced the Bill we had a very, very complicated draft Bill from the Law Commission. I think the present Bill is very much simpler and it may be that in the simplification we got into some of the difficulties which the noble Earl, Lord Selkirk, rightly raised.
As I say, I am not too well satisfied with the matter of comprehensibility and I hope that the noble Earl will look again at giving more discretion to the court without drawing attention to the question of tied houses. If we reduce the right in respect of any spouse and family, then we are not doing justice to the main aims of the Bill. The Bill is a good Bill. It is one I certainly welcome, and I trust that elsewhere the Government will take the opportunity to approve it.

The Earl of Selkirk
My Lords, I am very happy to wish this Bill every good fortune but I do not think one should underestimate the fact that it is a very bold Bill. It is far-reaching and changes the whole basis of conveyancing to some degree in Scotland, which is something that may or may not be fully understood by everyone for quite a long time. It gives rights which are not public, which has been contrary to the principles of conveyancing in Scotland for 350 years. I think that will need a great deal of attention from a publicity point of view.
I may say that I am concerned over the question of blackmail, which I can see being very easily used in some cases; and great care will have to be taken to see that that does not happen. Also I believe it will increase the cost of transfer of occupation to some extent both in tenanted and in owner-occupied houses. These are matters in which the skill and no doubt the ability of the Scottish Office will be put to a test to see whether they can find ways and means without hampering what in effect is the cost of houses. To give an illustration, supposing that it takes a month longer to transfer property, when one considers that about 150,000 are transferred every year it will mean effectively that about 10,000 fewer houses will be available for occupation in Scotland at any one time; so the delay in transferring houses could be quite serious.
I must say I am sorry that the noble Earl only half 871 accepts the decision which this House reached last time. I am sure he does not want to produce a good constitutional crisis on this matter, and I hope he will consider all that was said on that occasion. Where there's a "will, there's a way". I do wish this Bill good fortune, though I realise that it will be difficult for the people of Scotland to understand for quite a long time; it will need great care, particularly in publicity, from the Scottish Office.

§ Lord Drumalbyn
My Lords, may I also join in thanking my noble friend for the way in which he has dealt with this Bill. As he knows, I am by no means yet satisfied on Clause 16, which deals with cohabiting. I think there is liable to be a lot of trouble in this. It is always difficult to make a partial extension of a principle to circumstances which are in many ways totally different, and I think great care will have to be taken—I am sure it will be taken in another place to examine the kind of circumstances in which applications will be made in cases of cohabitation.