HL Deb 24 February 1981 vol 417 cc1000-13

4.25 p.m.

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

My Lords, I beg to move that this Bill be now read a second time. The Bill, which extends to Scotland only, has two principal objects: first, to recognise that both parties to a marriage should have rights of occupancy in the matrimonial home, and, secondly, to provide protection to a spouse or to children who are at risk of physical or mental injury as a result of the conduct of the other spouse. Although the Bill is drafted in terms which apply equally in favour of a husband or wife, it is expected that the chief beneficiaries will be wives.

During the past decade or so there has been widespread concern about the plight of battered wives. Domestic violence has almost certainly been a longstanding phenomenon but only recently has its extent begun to be more fully recognised. It is undoubtedly an evil which has tainted family life for many years. In the past the financial superiority of the husband as the breadwinner carried with it a degree of authority in the home which is no longer acceptable. There was a time when the authority of the husband over his wife was regarded as equivalent to the authority of a parent over a child—and included the right of moderate chastisement for any failings. Most men have discarded such attitudes but for some—perhaps when they have been drinking—they still remain. Only comparatively recently have women come to openly express their resentment at the violent exercise of that former authority. They no longer regard it as something which is an unavoidable hazard of marriage; it is rather seen as behaviour from which they should be spared.

There are no accurate figures of the extent of wife-battering in our society but it is almost certainly very much higher than the number of reported cases. Research into the incidence of domestic violence in Edinburgh and Glasgow in 1974 indicated that over 70 per cent. of violent offences involving family members were of wife assault; only—and it is a comparative "only"—10 per cent. were for assaulting children. I am sure that a significant factor in the emergence of wife-battering as an acknowledged social problem has been the changing role of women in society as a whole. More women are fending for themselves without support of a husband; many more make an important contribution to the family income. Sometimes women may still feel a sense of shame if they have a violent husband—as if it represents a personal failure on their part. But in other situations where violence has always been more apparent in the neighbourhood in one form or another, I am bound to say that the problem has not been one of self-reproach but of resignation to the ways of menfolk. However, women who might once have tolerated violent husbands are now unwilling to do so. This change in the way women see their predicament may account for the greater public awareness of wife-battering over the past decade.

I am sure that your Lordships will share the Government's view that wherever possible domestic violence must be prevented. Where it does occur, the existing criminal law may be brought to bear. In practice, this may not always be enough. The Bill provides the support of Scots civil law to the criminal code so that a spouse who is at risk of violence can take steps to protect herself from assault or molestation by the other spouse. Where a wife who is being ill-treated by her husband wants to leave him she may be deterred from doing so by the fear of becoming homeless. If there are children, she may decide to put up with the violence so that they can have a roof over their heads.

In that kind of situation this Bill will help a wife in two distinct ways. It gives her a right to occupy the family home, even where her husband is the owner or tenant; and it enables her to seek a court order excluding her husband from the home because of the risk of violence to her or the children. These civil remedies in no way alter the criminal sanctions which apply to domestic violence, but it is hoped that they will help to avert violence and thus reduce the need for criminal proceedings.

The provisions of the Bill are based on the draft Bill appended to the Scottish Law Commission Report on Occupancy Rights in the Matrimonial Home and Domestic Violence, which was published in July 1980. The commission had been requested to examine this area of the law in 1976 by the Secretary of State and Lord Advocate in the previous Administration. The commission was able to have regard to the experience of the working of comparable legislation in England and Wales. The Government are glad to have been able to bring forward legislation on this important subject so soon after publication of the report.

Clause 1 of the Bill is fundamental since it confers a right of occupancy in the matrimonial home on a spouse who is neither the owner nor the tenant. This right will become an automatic incident of marriage, unless it is specifically renounced in writing. The Bill is at pains to avoid any sex discrimination and refers to the partners of the marriage in an entirely neutral way—as the "titled spouse", who is usually the husband, and the "non-titled spouse", who is normally the wife. Clause 2 makes the occupancy right effective by entitling the non-titled spouse to make any necessary payments and carry out repairs to the matrimonial home. It also empowers the court to apportion certain expenditure between the spouses. Clause 3 gives the court powers to regulate the occupancy rights of either spouse, to safeguard their use of furniture and plenishings in the matrimonial home and to order compensation to be paid by the titled spouse in certain circumstances.

Clause 4 provides the court with a new power to enforce the occupancy right. It can make exclusion orders which suspend the right of occupancy of either spouse in order to protect the physical or mental health of the other spouse or any children. Provision is made for attaching certain interdicts to these exclusion orders; for example, prohibiting the offending spouse from entering the matrimonial home. There is, however, the safeguard that the offending spouse may satisfy the court that the interdicts are not required. Clause 5 sets out the circumstances in which orders regulating the occupancy rights, the use of furniture in the matrimonial home and exclusion orders will cease to have effect, for example, on the termination of the marriage, such as by the death of a spouse or on a divorce.

Parts of the Bill are of a technical nature. Clause 6 protects the non-titled spouse's occupancy rights against any dealings by the other spouse. Normally the consent of the non-titled spouse will be needed. Clause 7 sets out the circumstances in which the court may dispense with that consent, for instance, if it is unreasonably withheld.

If the titled spouse unfortunately happens to get into debt, the occupancy rights of the other spouse cannot prevent a creditor from obtaining payment even if that requires the sale of the matrimonial home or some of its furniture. However, if the titled spouse deliberately gets into debt in order to spite the other spouse, Clauses 9 to 11 provide protection for the other spouse against contrived arrangements which are intended to defeat the rights created by the Bill.

Clause 12 will have an important effect upon marriages of couples living in rented housing, including Scotland's many council house tenants. It gives the court the power to transfer the tenancy from one spouse to another and allows this power to be exercised by the Court of Session on granting a decree of divorce. The clause makes provision for the landlord to be informed of any application for the transfer of the tenancy and to be given an opportunity, if he wishes it, of being heard by the court in considering whether or not to grant the transfer. The Bill also provides for the situation where the matrimonial home is jointly owned or rented by both spouses.

Clause 13 defines the term "matrimonial interdict" as embracing any interdict regulating the conduct of one spouse towards the other—or towards any children—or excluding a spouse from the matrimonial home or a specified area in which the home is situated. It therefore covers not only interdicts provided for in the Bill, but others which do not arise from problems of occupancy rights.

Clause 14 makes matrimonial interdicts an effective protection by attaching to them a power of arrest exercisable without warrant by a police constable where he suspects that there has been a breach of the interdict. Such a power will be automatic for interdicts ancillary to an exclusion order. Where the matrimonial interdict is granted separately the non-applicant spouse—normally the husband—must have the opportunity to convince the court that such a power is not necessary in his case. Wherever the court is satisfied that no interdict need be attached to the exclusion order, as I mentioned in the context of Clause 4, the question of a power of arrest under this clause would not arise.

Clause 15 sets out the procedures to be followed after an arrest for a breach of a matrimonial interdict, where criminal proceedings are not to be brought, and I would emphasise that qualification. In the majority of cases I would expect a criminal offence to be involved—even if only for breach of the peace. Nevertheless, provision is necessary where the procurator fiscal decides that criminal proceedings shall not be brought and yet the breach of interdict represents a contempt of the court. In these circumstances it is right that the original court should consider any resultant action of breach of interdict. The clause provides for this to proceed without placing the applicant spouse at further risk from the spouse who breached the interdict. This involves being brought before the sheriff at the first opportunity; he may—on a petition from the procurator fiscal presenting the facts known to him—order a further period of detention not exceeding two days, in which the applicant spouse can bring an action of breach of interdict before the court which granted the original interdict.

Clause 16 accepts the need to provide limited occupancy rights for unmarried cohabiting couples, but departs slightly from the Scottish Law Commission's recommendation on this point. The Bill reflects the full rights granted to married couples but gives the court a greater degree of discretion to extend the duration of the limited occupany rights. The Scottish Law Commission report proposed a maximum of six months; the Bill provides for an element of flexibility in the form of extensions of up to six months to the initial period. This should be useful where hardship for the family might result from too short a duration of the limited occupancy rights.

In Clause 20 I would draw your Lordships' attention to the sensibly broad definition of "matrimonial home", which includes caravans and houseboats. Indeed, I understand that some 10,000 people live in mobile homes on licensed caravan sites in Scotland and it is only right that they should enjoy the benefits provided by the Bill.

The Bill, I believe, strikes a fair balance between the just occupancy rights of both spouses and the possibly conflicting interests of such third parties as creditors. In my view it achieves a sound framework in what is a difficult area of law. I am confident that this measure will be widely welcomed in Scotland and I commend it to your Lordships' House. I beg to move.

Moved, That the Bill be now read 2a—(The Earl of Mansfield.)

4.39 p.m.

Lord Ross of Marnock

My Lords, in many ways this Bill is a courageous measure and, indeed, a wise one. I have more than a passing interest in it. It comes from the Law Commission and I was Secretary of State when the Law Commission was set up. The origin of its work stems from 1968, when the Law Commission put forward its second programme of reform and included that aim of reforming Scottish family law. It had already started on reforming Scottish family law before considerable prominence was given to the problem of violence in marriage by the Select Committee report of another place.

It was in 1976—and, surprise, surprise, I was still Secretary of State—that I suggested that the Law Commission should look at the whole question of violence in marriage, and at the same time at the question of spouse occupation. I think I should congratulate the Law Commission for their tireless work in bringing Scottish law up to date, and also the Government. It is not very often that we have a report—in this case published in July 1980—translated into law eight or nine months later. The only thing I slightly regret is that in the Bill there is a considerable departure from the report and from the draft Bill appended to the report, and we have never discussed that report.

I have been in this House only a relatively short time, about 18 months or so, but what surprises me is that I do not know how many times I have heard EEC proposals, directives, and such things reported here, and yet here is a matter which I am sure has not been discussed by either House. There seems to me to be a gap. There should be almost automatic consideration of reports from the Law Commission. There should be automatic right of debate, and we should pay as much attention to these things as we do to things that come from Brussels.

It had already started its work. I say it is wise, because one of the first things it had to appreciate was that although violence in the home is something that, as the Minister of State said, is not a new phenomenon—it has been there for generations or centuries, probably since men and women tied themselves together in marriage—the attitudes have considerably changed. Not least of the changes has been the greater equality that has been claimed and granted to women, and the change in respect of the economic circumstances where more and more women—and sadly in many cases—are earners, and certainly in many cases the sole earners. We have just had the latest unemployment statistics for Scotland today; 288,000. The greater part of those concerned are men. That means that in more and more homes the women are the sole wage-earners.

That creates problems and difficulties. But then you add to that that Scottish law—and I do not say it is unique, but it is fairly unique in respect of the Continent and even of England and Wales—gives no right of occupancy of the matrimonial home to the wife unless that wife (and it is in very unusual circumstances) actually owns the home, or is the tenant. This situation of course is historic too. Tenancies were entered in the husband's name. The same thing is often true in respect of owner occupation, although more and more it has come about, I am glad to say, that there is joint ownership by enlightened people. Certainly local authorities in Scotland today are more and more providing joint tenancies for husbands and wives.

When they looked into their remit, the Scottish Law Commission discovered that there was an interrelationship between this question of occupancy and the question of violence. It virtually invited violence where the wife could not leave the home, or could not readily get the husband out even though he was behaving in a way that was injurious to her, or the children's, physical and mental health. Very often a wife, instead of going back to her mother—that is often the only place wives could go, if they could be taken back—just had to stay and suffer. So the position in relation to occupancy led almost to inviting the continuation of violence. Now, we do not remedy this, and I think the Minister was wrong in using the word "remedy". What we do is give to all married couples a new right; a right of occupancy. It becomes their statutory right. I hope that every man in Scotland will appreciate that, whether he thinks he is providing a home or not, for the first time all couples will have equal rights of occupancy of the family home.

The Law Commission went a bit further than that, and I do not know whether the Minister of State can answer this point when he winds up. The Scottish Law Commission said that even if there were two matrimonial homes—in other words, there was a holiday cottage, or a caravan somewhere in a park—the right of the wife to occupancy, if she did not have any legal right hitherto, should apply to both. That is not entirely clear to me in reading the Bill, but there for the first time we have a new right. I was impressed by the extent to which the Law Commission in its report followed that through.

The right of occupancy is nothing if all you have is a roof over your head and you have not access to a kitchen, or you cannot meet the obligations or have the legal right to meet the obligations, or cannot get things done that should be done. But the follow through in Clause 2 of the subsidiary aids to occupancy is splendid. They have specified what is wanted, and said what can be done without recourse to law. It is only when you step outside the rights that are those of the person with title that the court is brought in, and brought in on the application of the untitled spouse.

I noticed with a certain amount of amusement in paragraph 1.13 of the report that the Law Commission tried to get away from confusing and conflicting titles. In order to avoid phrases such as 'the entitled spouse' for the spouse who has the legal right or permission to occupy a matrimonial home and the converse 'the non-titled spouse' they take it for granted, although it is not really the case, that the one with permission is the husband. This assumption also eliminates the need for phrases such as 'he or she', 'him or her' and 'his or hers'". Well, let us have a look at Clause 3. In Clause 3 we get not entitled but the "titled spouse" and the "non-titled spouse". Presumably this is why the matter has come to the House of Lords before another place. It is going to be confusing. Then in the same clause there is reference to the case where recourse is had to law by one of the spouses, be they titled or non-titled, and then they change their designation; they become "applicant spouses" and "non-applicant spouses". It can be complicated, and I hope, as this is far-reaching, that an explanation will be made in fairly simple form to the public affected, because the good that this Bill will do will be measured by the extent to which people understand it and know that this new right exists.

Of course, it comes too to the point where there can be an exclusion. First of all it applies to this right, because not everyone can get this right of occupancy. It does not apply to an agricultural holding, a tied cottage; it does not apply to a service cottage. Well, it might not. They are virtually excluded by reference to what the court has to take into consideration regarding the consequences of the exclusion of a man who has a contract with, say, a farmer, or who is a janitor of a school or something of that nature and cannot fulfil his contract if not living in the particular place. The weakness of that, in my view, stems not from the weakness of the law on occupation but the weakness of the law on tied houses, and if there were no tied houses by law, this problem would not exist.

That applies equally to the exclusion order and the change of tenancy power, a subject which I do not think the Minister mentioned. This power is given to the court and applies not only in relation to this Bill and this new right but also to the court dealing with the divorce proceedings; the court now has the right, as well as making financial provision and dealing, with the other matters covered in the first part of the Law Commission's report, to act on tenancy. However, it cannot change the tenancy (as it can in every other case) on tied houses or service occupancy. But the basic right of occupancy and the follow-up of subsidiary rights, which are defined, represent a considerable advance in the status of the hitherto untitled spouse.

Apart from any marital dispute concerning occupancy where the two spouses are living there and wish to share expenditures, the court can allocate expenditure to each of them in respect of the costs of the matrimonial home. There are certain matters which should be made absolutely clear. First, while a certain amount of courage must be shown by cohabiting couples, the same kind of right is not given to them. There is a limited right: on recourse to the court, the right of occupancy is limited in the first instance to three months with a possible extension for another three months. We must of course accept that public attitudes have changed on this matter. There was a time when cohabiting couples were "married". All you had to do in Scotland was to proclaim before witnesses that you were married and you were, and it was legal. Many people did cohabit and they were "married", so long as there was no bar to marriage. It was simply that couples cohabiting in that way never got round to getting married, although they were married in the eyes of the Scottish law.

As I recollect, the Law Commission suggested that they wanted this provision included for unmarried couples. I thought at the time that it was difficult to understand what they really meant. For example, does this provision refer to couples who are not married but for whom there exist no bar to marriage? They may not be married to one another but they could be married to others. They may be separated but not divorced, or they could even be divorced and still married. Will this provision apply in those circumstances, or will it be left to the courts to judge whether it be right or wrong for them to have this form of occupancy?

There is also no question raised about how long they have been cohabiting. I feel that if a couple have been cohabiting, including perhaps raising a family, for, say, 20 years or some other such reasonable period, their rights should not be construed like those of a couple who have been together for a month or two. This way of dealing with the problem, giving occupancy to the untitled spouse for three months to enable arrangements to be made, may not be all that generous in the circumstances, and we shall have to give close consideration to this at a later stage of the Bill.

I should like to know if the Government have had any discussions with the Law Commission since they received the report in July. I ask that because they do not follow in some important regards the recommendations of the Law Commission—for example, in respect of registration of occupancy and perhaps in relation to dealings with third parties. For instance, if the husband is titled, somebody may want to buy the house and the usual searches will be made as to ownership and so on. The Law Commission felt that it would be only right that the information concerning occupancy—the right on the part of the wife—should actually be registered. There were forms for notifying that; in a tenancy it was intimation to the landlord, providing matrimonial home intimation notices, registration notices and various other forms. All that has gone, yet the Law Commission seemed to place a great deal of importance on it.

I agree that the matter is very complex, but the Law Commission seemed to think that it was absolutely necessary to tidy the whole thing up. I should therefore like to know why the Government did not include it in the Bill. Or was it, remembering that the Scottish Law Commission's deliberations are continuing—this is not the end of their work so far as family law is concerned; they are presently considering title—that the Government, in discussion with the Law Commission, considered that this aspect would be more relevant when dealing with title to property? I should be obliged if we could be given some information about that.

There is then the question of guidelines for the court. In Clause 3 the guidelines are laid down very clearly concerning court orders on declaring, enforcing, restricting and protecting the rights of the applicant, the spouse, and the procedures are laid down for regulating and exercising the occupation rights of the non-applicant spouse. However, what do we find when we come to the question of the procedure after arrest? As to arrest, there was a certain measure of doubt and some controversy in the discussions that went on before the Law Commission. First, they wanted to retain as much as possible within the civil court. Regarding the police being brought in, making arrests and so on, they thought it would not be the best way to proceed to jump from that to the criminal court, although, as the Minister said, it is about the only remedy there is. So far as the police coming in is concerned, it will remain in the case of criminal charges and assault on the part of the husband—or, for that matter, by the wife against the husband—perhaps affecting the family too.

On the procedure after arrest, they suggested that it should be left to the court to draw up rules. Instead, we have the rules laid down here. That may have resulted from the kind of discussion we had on a Bill during the last Session—now the Scottish Criminal Justice Act—when it was decided to include it in the measure. It means that the arrested spouse, if an arrest takes place, must be brought before the court within 24 hours, as is the case in England. It is true to say, however, that, as in England, they are reluctant to give power of arrest. In this Bill, however, it is mandatory; the power of arrest is included, although when it is exercised will be a matter for the police. Why did the Government decide to put it in the Bill? If a provision is in a Bill, it then becomes much more inflexible. If it is in Rules of Court—and the Rules of Court could have been published before the Bill was issued—it is much more flexible and can be changed to suit prevailing circumstances.

The exclusion order is important and will give a measure of reassurance and protection to the families affected. Clause 1 gives a new right to the wife or non-titled spouse to occupy the matrimonial home. Bearing in mind that there is here a background concerning the dangers of violence, I wonder whether it was wise to include subsection (5). The subsection states: A non-titled spouse may renounce in writing his or her …". It is interesting to note there the use of the phrase "his or her", since earlier in the clause reference is to an individual and an individual is a male; there is no "his or her" in relation to an individual. Subsection (5) states that a non-titled spouse may renounce in writing his or her occupancy rights, and so if the rights are renounced in writing, then they are gone. Bearing in mind the context of violence in the home, it seems that there is no protection whereby the courts should be able to examine whether the renunciation was made under duress or violence. I should like the Government to look at that point and consider whether they should include a measure of protection against violence overriding the whole new right that is being given.

There is another point regarding the matrimonial interdict orders, in that the Law Commission suggested that it might be helpful and might avoid trouble if the offending or non-applicant spouse were made responsible for finding caution in respect of any action. I should like to know exactly why the Government did not accept that particular point.

This is a fascinating Bill; there is no doubt at all about that. Perhaps we shall spend long hours going over it, and I feel sure that if the Minister of State, bearing in mind the care that he usually gives to these matters, has not already read the Law Commission's report, he will do so. The Bill is complicated, but it is essential, and it brings Scottish law up-to-date. It is only part of the family law reform to which the Law Commission has applied itself, but it certainly deserves the consideration and the support of this House.

5.3 p.m.

Lord Mackie of Benshie

My Lords, speaking both personally and on behalf of noble Lords on these Benches, I can welcome the intent and the purpose of the Bill. Clearly it follows the English Bill quite closely, and it ought to have taken into account experiences in England. I would go farther than the Minister of State and say that perhaps the protection was needed long ago, even before the climate of opinion among women changed regarding acceptance of violence. In days gone by the only protection that a woman, indeed a girl, had against violence in the home was where she had parents who were sufficiently wealthy to have enough room to take her back into their home without her having to endure worse conditions than she endured with a violent husband. I think it right and proper, indeed essential, that Scots law should come into line on this matter.

All of us can imagine situations which are totally intolerable, and we know that in the long run it cannot be good for a wife, or indeed for the children, to endure such conditions. I should say that in most cases women remain with husbands who are wholly unsatisfactory, whether on grounds of violence or for other reasons, simply because of the children, but in the long run that is not good for the children. I am perfectly certain that the Bill is right in providing in cases involving violence that the wife has an alternative to leaving home or to subjecting her family to even worse conditions.

I welcome the Bill. It is perhaps part of the march of feminine progress, but it is much more part of the march of humane progress, leading to a better understanding all round of a proper sense of family, instead of a sense of male superiority, often unthinking, and based more on physical characteristics than on any mental or moral superiority. However, I believe that we must use some care in looking at the Bill and the exceptions that will arise. The noble Earl the Minister of State spoke on the Second Reading of the English Bill, and he expressed some very practical misgivings about its effect in law. I have consulted some of my legal friends on this matter and they have some interesting observations to make. I shall repeat those observations and ask the Minister to give his views on whether safeguards have been taken.

First, a distinguished Scottish lawyer said that the Bill is a substantial innovation regarding the property rights of individuals; and obviously this is so. He went on to criticise a number of points, including the rights for cohabitees, and he said, quite simply, If one is going to accept the existence of the rights of cohabitees at all, then it hardly seems logical that these should be more limited than the rights which husbands and wives have". He then went on to criticise specifically Clause 17. He stated that: Clause 17 allows the court in such an action to refuse to grant a decree or to postpone it for such period as it considers reasonable". Then he said that the effect of Clause 17 may be to give the wife not only her share of the matrimonial home, but in addition the right to prevent her husband from realising his share.

Another lawyer was rather more forthright in his criticism of some points of the Bill—not of the Bill as a whole. He said: Any woman who inveigles a man into marrying her"— I do not accept all his sentiments in this regard— can torment him until he raises his hand to her and then she can have him put out of his house and can go on living in it rent free for the rest of her natural life". I accept that that situation may be somewhat unusual, but I do not see in the Bill—though I may have missed it—any right of appeal. It is possible that a husband, quite rightly, may be put out of the house that he owns, and then the circumstances can change entirely. The family grow up, and the wife is in possession of the house which was originally the husband's, and for which he had paid. Can he then appeal to the courts to get his house back? I think that such cases may well arise, and they exercise the minds of lawyers in Scotland whom I have consulted.

The noble Earl the Minister expressed some concern about these matters and he must have thought about them. I presume that in England the Act came in in 1977, though I am subject to correction, and so there must be some English experience to go on. However, I hope that the Law Commission in Scotland investigated the English situation, though perhaps they did so a little too early; I do not know. Perhaps the Minister can enlighten us on the various snags and the injustice that might arise from correcting certain past injustice towards the wives of violent husbands. I should like to stress that despite the exceptions that I have talked about, we regard the Bill as wholly essential and beneficial, though I should like to ensure that correcting the injustice that we know of it does not give rise to further injustice.

5.10 p.m.

The Earl of Mansfield

My Lords, I must thank both noble Lords for the welcome which they gave to this Bill—a qualified welcome, I think, in each case, and, certainly in respect of the noble Lord, Lord Mackie, a welcome which was tempered by the legal advice which he had apparently received. I do not know from which country the advice emanated, but the source was almost certainly male and—dare I say?—chauvinist. The chipping away (if that is not an improper phrase) of husbands' and male rights in respect of property has been a continuing process now for a great number of years. It may be that in the United Kingdom—and I use those two words advisedly—we have been rather slow to give women the rights which for tens of years now have been accepted without question, certainly on the Continent of Europe and more especially in the United States. But I think that we are coming round, partly by statute and partly by the way in which the courts interpret both the law and their duties to administer it in an equitable fashion, to giving to women rights which, as the noble Lord, Lord Mackie, said, were inconceivable only 30 or 40 years ago but which nowadays are regarded as the acceptable norm in a civilised and advanced Western democracy.

The noble Lord, Lord Ross, is of course quite right. I think that Scotland, if it is not the only country is one of the very few countries in Europe where women have not enjoyed this right. The Bill which gave rather similar rights to wives in England and Wales was one which was introduced into this House as a Private Member's measure by his noble friend Lady Phillips in 1976. I talked about it from the position which the noble Lord himself occupies today, and I expressed a considerable number of reservations about it. Speaking personally for a moment, and not as a Minister, I think the Scottish Bill is very much superior in many ways to the Bill which was then introduced into your Lordships' House; but there are a lot of matters of detail which we can, and no doubt will, go into in Committee if noble Lords so wish. I hope that what the noble Lord said as to hours of debate was not a threat so much as a promise, but no doubt we can do it.

If I may respond to just one or two of the matters which were raised, the first matter which the noble Lord, Lord Ross, brought up concerned, I think, second homes. What Clause 1 of the Bill says is "a matrimonial home", and that means any number of matrimonial homes. So if there is a second home then it will be in order for the non-titled spouse to acquire, in fact, all the rights which he or she can acquire in respect of the main matrimonial home or any other matrimonial home.

Then, I think, the noble Lord regretted that agricultural and tied houses generally—that is, houses subject to a service occupancy—were excluded from the Bill. Of course, with respect, they would have to be. The law can give the court power to do only what a court has power to do. If a tenancy, as in the case of a service tenancy, is dependent upon, for instance, a contract of employment, it is no use the court giving rights to a spouse unless it is also in a position to ensure that it cannot be frustrated in the order that it makes. The noble Lord may not agree with the concept of service tenancies at all—and we know from the Tenants' Rights, Etc. (Scotland) Act, which we discussed last Session, that he does not—but, so long as those obtain, it is no use trying to make this kind of order in respect of them.

Then the noble Lord asked me about cohabiting couples. Rightly or wrongly, in Clause 16 the Bill does not go in for judgments of the kind which the noble Lord was apparently inviting it to do. The clause states that it applies, If a man and a woman are living with each other as if they were man and wife". Now, they may be merely committing fornication, or they may be in some kind of adulterous relationship. The noble Lord, I know, will recall that not so long ago, in such circumstances, the injured spouse could bring an action alleging what in Scotland was called "criminal conversation". That has now been swept away, but the fact of the matter is that under Clause 16 the law is not concerned to delve into the particular marital status, or lack of it, of either of them; it is simply interested in whether they are in fact living as man and wife.

Of course, the phrase "common law marriage" has had an honourable status in Scotland for many years. It is fashionable, I think, particularly in England, for a man to describe his mistress as a common law wife; but that, of course, is something which has really no basis in law, and certainly degrades the name of a totally honourable institution which has obtained in Scotland for many centuries, and indeed still does.

The next question which the noble Lord asked me was: how long do the couple have to cohabit in order to, as it were, bring Clause 16 into operation? Of course, that is a matter for the discretion of the court. The noble Lord will see that under Clause 16 the court "may" grant occupancy rights, and obviously it would depend on the evidence which was given to the court as to what view it took about the family situation, and whether such an order should be made.

The noble Lord asked about the guidelines in, I believe, Clause 3. I think that is a matter which we could return to at Committee stage. But what he did ask, and what I think I should answer, is this, in effect. "Why insert in Clause 14 a mandatory interdict?" Of course, the noble Lord will recollect that in Clause 4(4) there is a discretion given to the court not to attach an interdict, and therefore a power of arrest, if it thinks that that is a just course. In other words, what I am trying to say to the noble Lord is that in fact the court is not fettered in the somewhat cumbersome manner which I believe the noble Lord thinks it is.

Then, another point with which I think I should deal is the matter of renunciation. That, no doubt, we shall wish to consider—it is Clause 1(5)—in Committee. The noble Lord asked whether in fact renunciation would, as it were, be valid if it had been obtained by the spouse—probably the husband—either by violence or in some way under duress. The answer is that no court would make the non-titled spouse suffer if such an agreement—because it has to be an agreement—is obtained in any way improperly. So I hope that the noble Lord is reassured by that.

I should also have said that one of the matters which the noble Lord asked about is whether the Government, as it were, consulted or discussed matters with the Scottish Law Commission since the publication of their report and before the Bill was published. The answer to that is, yes. There have been consultations and I understand that, in general, the Scottish Law Commission are satisfied with the proposals in the Bill.

If I may turn for a moment to the points made by the noble Lord, Lord Mackie of Benshie, he produced a piece of paper on which were typed various comments from certain lawyers. I think that I have dealt with that to the extent that, as I have said—and rightly in my opinion—the rights of spouses, particularly as they regard property, have become very much more a matter of equitable jurisdiction in the courts of law in this country than they have ever been before. This Bill extends that philosophy to a certain degree. But if the noble Lord wishes to challenge it in Committee, I am sure he can; and no doubt we shall pay attention if he suggests that the Bill goes too far and that there should be safeguards written in. The noble Lord asked whether, in effect, such a right, an occupancy right, given by the court to the non-titled spouse could be varied if the conditions changed. In other words, as he put it, could the husband—because it is probably going to be the husband—come back to the court on a later occasion and ask, "Can I have my house back?" The answer is that, under Clause 5, he can. The court may on the application of either spouse vary or recall any order made by it under Clauses 2, 3 and 4 of this Bill. Of course, if the spouse in whose favour the order has been made is divorced, if the marriage is terminated or if various other circumstances, as described in Clause 5, come into play, then the order will cease to have effect.

Lord Mackie of Benshie

My Lords, I merely want to make it clear that I accepted completely the necessary change in the laws of property and that my legal friend, who is a Scot, was pointing out that it makes a great change—and this he was doing for my benefit—and that we are accepting completely that it is right and proper that the laws of property change to the extent where there is violence in the home.

The Earl of Mansfield

Yes, my Lords, I am glad that the noble Lord agrees with the philosophy underlying the Bill. I think that I should say in conclusion that this is really not so much a Bill which interferes with or changes the law of property. What it does is to give rights to people, spouses of either sex, who previously have not enjoyed them, but, more especially in the later Parts of the Bill, I believe it enables a spouse who, because of violent and totally unjustified conduct on the part of the husband or wife, has not enjoyed peace of mind, at least to go to court and say, "This has been the treatment meted out to me. Can I have a roof over my head?" That is a great advance, which will be welcomed and certainly has already been welcomed throughout Scotland and, I imagine, in all parts of your Lordships' House.

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