HL Deb 24 March 1981 vol 418 cc1070-129

3.50 p.m.

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

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—[The Earl of Mansfield.]

On Question, Motion agreed to.

House in Committee accordingly.

[THE LORD ABERDARE in the Chair.]

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

The Earl of Selkirk moved Amendment No. 1: Page 1, line 13, after ("in") insert ("actual".).

The noble Earl said: I beg to move Amendment No. 1. This is an exploratory amendment because I think that it is important to establish one or two matters as regards what exactly is a matrimonial home. If it is occupied it is quite easily identified, but if it is not occupied then clearly it is not so easy to tell. I think that we all agree about the Bill, but it does enter certain very delicate personal elements. The relations between married people are very delicate, very different and vary in many circumstances. The Bill gives overriding rights to the ownership of heritage. We have always been very careful in Scotland about the exact ownership of heritage and we have had public registration for about 300 years. It is important that we are clear about this matter. Certainly the major part of my amendment is to clarify the issue so far as possible.

How do we discover whether a home is a matrimonial home if there is not actual occupation? It is quite clear that it is a matrimonial home not only when there is occupation, because, if we turn to page 2, it states: if not in occupation, a right to enter". How are we to know if a house is unoccupied that a wife has the right to enter it? I ask that question because such a situation may well arise. Let us suppose that the husband sells a country cottage or some agreeable place in Scotland. Let us suppose further that somebody buys it and the wife claims it as a matrimonial home. What happens then? We should have some idea about how the matter is to be treated.

I note, as a matter of fact, that in the Scottish Law Commission report it says that this overriding arrangement—because the matrimonial home overrides all other rights in land—is only justified if satisfactory procedures are devised to notify third parties. This will be a very important element. I should like to know whether my noble friend can give some indication as to how this should be done. I am suggesting in my amendment—and I know that my noble friend will not accept it; indeed, I am not suggesting that he will—that it would be perfectly clear if "actual occupation" of a house made it the matrimonial home. That presents no difficulty. But when it is not occupied it presents difficulties which might lead to angry bickering in the law courts and elsewhere as to whether someone has been deceived.

I should be grateful if my noble friend could say how he proposes to deal with this. There is a burden on him to do so because the Scottish Law Commission put in a Clause 7 which meant that matrimonial homes were to be notified, and so one could find out. At present, there is no means that I know of in the Bill of finding out, and if my noble friend could give an explanation I should be extremely grateful. I beg to move.

The Earl of Mansfield

I am grateful to my noble friend for setting the scene, as it were, in our deliberations in Committee on this Bill. I think that as the Bill is considered two matters will become apparent to the Committee. The first matter is that the Government are prepared to be extremely flexible over quite large areas both as to the drafting and as to the way in which the various parties to a marriage will exercise the rights given to them under the Bill. Secondly, I think that there will be running through the Bill a theme—which will become apparent—that in many, many cases the interpretation of the Bill when it becomes an Act will be left to the courts. That is something which I, with my background, find a wholly satisfying, extremely just and equitable way of—as I quite appreciate—regularising what can be extremely unfortunate circumstances in which two parties to a marriage or two people who have been cohabiting together find themselves in disagreement. From my previous experience, which is now long ago, in the divorce world, I know that it can create more bitterness, more upset and more lasting unhappiness than almost any other condition known to man or woman.

So far as a matrimonial home is concerned, of course my noble friend will know that there is a legal definition in Clause 20, to which I have no doubt he has addressed himself. I do not think that the courts will have any difficulty in interpreting what is a matrimonial home. So far as the amendment is concerned, "in occupation of a matrimonial home" means, I think, living in the home in a more or less regular way. As we debated on Second Reading, matrimonial home can extend to a number of different residences if the couple are lucky enough to possess them—in other words, a holiday home can be just as much a matrimonial home as the main residence in a town or wherever it happens to be. I think that a non-titled spouse in this situation, living in a home in a more or less regular way, should have the right to continue living in the home without recourse to the courts.

I know that my noble friend's amendment was really a probing amendment. However, if one substituted the phrase "in actual occupation" then it could be argued that the non-titled spouse who was absent from the home for a short period—for instance, on holiday or whatever—was no longer in actual occupation and to that extent he or she would then be homeless unless and until the court had granted an application for the enforcement of occupancy rights. So, if I may say so, I think that my noble friend's fear is perhaps less real than apparent.

The Earl of Selkirk

I shall not press the amendment. I am concerned to a great extent about third parties. I do not think that a husband and wife will present much difficulty but with third parties it may be difficult. However, I shall not pursue the matter now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Selkirk moved Amendment No. 2: Page 2, line 3, leave out ("includes") and insert ("does not include").

The noble Earl said: I beg to move Amendment No. 2. This is very largely a drafting amendment. I suggest, quite frankly, that the words which I am proposing are clearer than the words in the Bill. The position is quite clear. If a house is owned by two people it cannot be the matrimonial home of one of them. If a house is in shared ownership—I do not mean shared between husband and wife; I mean shared with a third party—it cannot then be declared the matrimonial home of one of the two people who own it. It seems to me important that the meaning should be brought out and I suggest that instead of saying: 'titled spouse' includes a spouse who is entitled, or permitted by a third party, and then going on to say: only if that individual has waived his right", we should start the other way round and say that: 'titled spouse' does not include a spouse who is entitled, or permitted by a third party…unless that individual has waived his right". I am not saying that there is a great difference in the wording, but there is a difference in emphasis and it makes it abundantly clear that if the house belongs to or is shared with some other party that person cannot have his rights removed by the place becoming a matrimonial home. That makes it quite clear. It is important that the position should be clear, because in those circumstances it is not a matrimonial home.

The Earl of Mansfield

I think that one should perhaps have regard to Amendment No. 3 as well as Amendment No. 2 because they both follow each other.

The Earl of Selkirk

Yes, that is right.

The Earl of Mansfield

My noble friend is seeking to change the drafting of the Bill, because he wants to have the matter stated in a negative manner rather than in the positive way which has been adopted by the draftsman in Clause 1(2). I am afraid that this is a battle of the draftsmen. I appreciate that Clause 2 is complex, but in my submission it is the concept that is complex, and not the obscure drafting which makes it complex. I appreciate what my noble friend has said, but I am afraid that I can do no more than hold to the drafting with which I have been provided, because I am informed that my noble friend's two amendments do not make the subsection any clearer than it already is.

The Earl of Selkirk

In that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Ross of Marnock moved Amendment No. 4: Page 2, line 6, after ("his") insert ("or her").

The noble Lord said: We now come to a very important amendment which I am sure the Government will accept. It is absolutely impeccable and is in line with what the Government have done elsewhere. Indeed, it is in line with what they have done at line 14. It is to put in the words "or her", so that it reads "his or her right". The individual is not necessarily male; the individual could be female. I beg to move.

The Earl of Mansfield

In the interests of equality between the sexes, which in other respects the Bill scrupulously maintains, I am pleased to accept the amendment. Furthermore, I tell the noble Lord that I shall move amendments to Clauses 6(2) and 16(4) on Report if he likes.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 5: Page 2, line 14, leave out subsection (5).

The noble Lord said: This amendment is, of course, very much more important. We all approve the principle of the Bill, which is to give protection to spouses who are subjected to cruelty and, indeed, to violence. We do so by giving a new right to all spouses. Marriage in future, in respect of a home, will mean that the husband and the wife—whoever is the owner or the tenant—will have equal rights in occupation. That is the base upon which the whole Bill rests. Bearing in mind the circumstances of an application to a court in respect of confirmation of occupancy, it is wrong that we should put at the very end of this, not world-shaking but new departure in women's rights—because it is mainly women who will get the advantage of this—a way out: A non-titled spouse may renounce in writing his or her occupancy rights, either generally or particularly. Let us bear in mind the background. The background is violence. One can easily understand how duress can be used to make a wife sign a piece of paper. That is all the Bill says—"may renounce in writing". I do not think that that should be included at all.

I thought of strengthening the Bill, as has the noble Earl in some respects, but we must remember that this will never enter the minds of the great majority of spouses. But for those who are up against violence we should not give violence a triumph by making it possible for the violent attitude of a spouse to get a woman to renounce her rights, for if her rights go then this Bill departs. That, I think, is wrong. It is difficult to imagine many circumstances where it might be necessary, and it creates a huge loophole in the Bill which could adversely affect the rights of thousands. That is what the Women's Aid Committee in Scotland say, and I entirely agree with them. I hope the Government will look sympathetically at this amendment, which is much more important than the one which has just been accepted. I beg to move.

The Earl of Selkirk

I go about halfway with the noble Lord, Lord Ross. I agree that this is a very serious matter, but I cannot agree that it should be omitted altogether. I want to strengthen the position so that when a wife does renounce her matrimonial rights she does so more solemnly than is proposed in the Bill. Amendment No. 6 says that if a non-titled spouse gives up her right of occupancy of the matrimonial home she should do so either generally in writing signed before a magistrate or in a particular manner. I entirely agree that this might be a matter of coercion, and it will also be irrevocable as regards the house; so it must be done in a serious and solemn manner. But from the point of view of third parties there must be some way in which that right can be given up, otherwise no one would be willing to buy the house at all. There must be a means of doing it, and I suggest that it should be a solemn procedure which I designate in Amendment No. 6. It should either be in writing signed before a magistrate or: (b) in a particular matrimonial home by an attested writing in such form as the Secretary of State shall by order made by statutory instrument prescribe.". That is how it should be done; otherwise, I entirely agree that this fundamental right should not be forced out of a wife.

Lord Mackie of Benshie

I think the Government will have to do something about this clause. As the noble Lord, Lord Ross, said, violence is at the core of the matter, and if the clause is left as it is then it is possible that a husband (and certainly in the history of matrimonial strife and violence it has been known that a husband can coerce his wife into doing practically anything under threat of violence) could threaten his wife. I shall be very interested to hear what the Minister has to say about this, but I am certain that he must do something. I do not think the clause can stay as it is. We appear to be discussing Amendment No. 6 as well. That, perhaps, would take much of the fear out of the situation, and would give a wife time to think. I shall be most interested to hear what the Minister has to say.

The Earl of Mansfield

I have a certain sympathy both with the noble Lord, Lord Ross, and with my noble friend, both of whom claim that subsection (5) is not entirely satisfactory as it stands, although they produce two very different remedies at opposite ends of the spectrum. If a renunciation made by a spouse has been obtained under duress or by virtue of some undue influence exercised by the titled spouse—and one assumes that it is most likely to be the husband in these circumstances—then, as I said on Second Reading, legal remedies are available and no court will hold it against a spouse who has been induced to renounce her rights under such circumstances. One must say that.

However, equally, I accept that the clause is not entirely right as it stands. The noble Lord, Lord Ross, asked whether there should ever be a form of renunciation. I agree with him that the circumstances in which, for instance, it might be in a wife's best interests to renounce would be rare. In its report the Scottish Law Commission produced a circumstance which it said was at any rate not unusual: where a wife's family, presumably with means, buys her and her fiancé or husband a house but wants to make jolly certain that the son-in-law does not have any rights in that house in the future, and where, if they were not sure, they would not produce their cash to buy the house. I believe that this happens from time to time, and one can understand that unless there is some built-in safeguard, or the house or the cash is put in trust, there would be no protection for the in-laws' money in those circumstances. So it can happen that it might be right and proper for one spouse or the other to renounce his or her rights, because one must remember that this Bill applies to either sex.

If one then considers how that renunciation should be made and in what form, one comes to my noble friend's amendment. The Government are not entirely convinced that it has to be in a form dictated by a statutory instrument. What I should like to do, if the noble Lord, Lord Ross, would withdraw his amendment and my noble friend not move his, is to take it away and think about it, and particularly take account of my noble friend's compromise proposal and see whether we can come up with something which will be fair and satisfactory at a later stage of the Bill.

Lord Ross of Marnock

We are proceeding very well indeed and very amicably. There must be something wrong wth the Scots today! This is sensible. I tried to find suitable words that would result in this half-way house. However, I do not accept the circumstances that the noble Earl thought would justify the renunciation. I have never heard of circumstances like that. It is not a very good basis for a marriage in the first place. Remember that all this has to be entered into before the home is bought. After the home is bought and they are both there, it is then that the renunciation should take place to give anybody a right of this kind.

I did not like the noble Earl's amendment. It is too complicated. I have never heard of a notary public in Scotland. I do not think there is such a term. We have all the English lawyers going to tell us what Scottish law is.

Lord Fraser of Tullybelton

Notaries public are common bodies to be found in Scotland. About half the solicitors in Scotland are notaries public.

Lord Ross of Marnock

I think we should have put in the term we all know—"solicitor"—and it would have been even clearer. On the basis that we are all going to search for better words, I am happy to withdraw the amendment.

The Earl of Selkirk

With great respect to the noble Lord, Lord Mackie, this is not simply a question of violence. This is also a question of the ordinary sale of property. If you are buying property somewhere and you have a matrimonial right overriding any form of tenure, you have to get rid of it. This will become a perfectly normal element in conveyance of property. Therefore, you have to have some simple way of doing it.

At the other end of the scale, you can have a certain amount of pressure. The words in this Bill are too slender. In a case of violence, all you have to do is to get your wife's signature on a piece of paper and put in the appropriate words above it. That method could be used too easily. There is need for a third party to make the position certain. That is certainly so in cases where you are giving up the right to a single matrimonial home. However, I am quite happy to accept what the noble Earl, Lord Mansfield, said.

Lord Ross of Marnock

I am sure that the noble Earl appreciates that under Clause 6(3)(a), where a house is to be sold consent in writing is written into the Bill.

The Earl of Selkirk

May we come to that in due course.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 1, as amended, agreed to.

Clause 2 [Subsidiary and consequential rights]:

4.14 p.m.

Lord Ross of Marnock moved Amendment No. 7: Page 2, line 22, after ("on") insert ("non-essential").

The noble Lord said: This clause deals with the question of securing the subsidiary and consequential rights of the spouses. It says: For the purpose of securing the occupancy rights of a non-titled spouse, that spouse shall…be entitled without the consent of the titled spouse to do certain things. One will be able to take over payments and perform obligations without the consent of the titled spouse. When we look at the clause we see that it deals with the question of repairs and improvements. Then it breaks up repairs into essential repairs—which I think everyone should have the right to be able to do—and non-essential repairs. But when we look at paragraph (a) we see that it says: to make any payment due by the titled spouse in respect of rent, rates, secured loan instalments, interest or other outgoings (not being outgoings on repairs…)". I should have thought it was right to say there that it should be non-essential repairs.

Then we get the same thing again in line 25: (not being an obligation in respect of repairs …)". People cannot perform that. But it does not differentiate between non-essential and essential. Yet when we come to paragraph (d) they are allowed to carry out such essential repairs as the titled spouse is entitled to carry out". There is a conflict there. There is a confusion there in words. It would be cleared up by the words that I would insert, because later on it is said that they can do any repairs they like, be they non-essential, if the court so orders.

It would be far better when we are giving these rights and obligations to make it clear that the non-essential repairs are very different from the essential ones that they should be able to perform. Things that probably have to be done in a hurry are essential; they should not be required to apply to the courts for them. I think that is the intention of the clause. The provision would be far better with these two amendments to lines 22 and 25 inserting the word "non-essential". I beg to move.

The Earl of Mansfield

I think that the noble Lord, Lord Ross, has misunderstood the way in which the clause is set out.

Lord Ross of Marnock

We had better change it then.

The Earl of Mansfield

No, do not grumble. What it does is to set out the rights of a spouse in a logical and comprehensive manner. In subsection (1)(a) are set out a number of payments of what I might call a periodical nature, such as rent and so on, and other outgoings, which I suppose could include such matters as feu duties. Then comes the exception, (not being outgoings on repairs on improvements)", which is merely to tie paragraph (a) to the periodical payments. The point is that this subsection is intended to exclude all outgoings, all periodical payments except those that are set out in paragraph (a). Then further on down the clause it tells the spouses what they can do by way of making payments in relation to either essential or non-essential repairs. The amendment which the noble Lord seeks is quite inappropriate in this particular subsection.

May I come to the second amendment to which the noble Lord spoke, that is to say, Amendment No. 8, where the noble Lord is on much stronger ground and I am much happier. If the noble Lord would not move it on this occasion I shall consider it, and in all probability put down an appropriate amendment at a later stage. The reason I say that is that Amendment No. 8 is indeed helpful because what it would entitle a non-titled spouse to do is to pay for essential repairs which in fact have been carried out but not paid for by the titled spouse. A leaking roof springs to mind as a possible example. Thus, in Amendment No. 8 the situation refers to an occasion which arose before the right of the non-titled spouse had been created, but nevertheless the legal obligation is there and has to be discharged and I hope the noble Lord will be satisfied with my admittedly rather laboured explanation.

Lord Ross of Marnock

I did not think the Minister's reply was laboured in any way. I found his remarks most interesting. For example, he told us what Clause 2(1)(a) meant, and of course it does not mean what it says. That being so, we had better start looking for words to limit what that provision says to the regular payments to which the noble Earl referred. I hope there are no cases where there may be regular payments in respect of essential or non-essential repairs, because we should have to start thinking about it again. I think we could do without the words in parenthesis.

As for the second point made by the noble Earl, I agree in that it probably would be helpful to cover that particular point, so it would be wrong for the non-titled spouse to be there in occupancy for all practical purposes, to meet all the necessary bills and then to receive one she cannot meet. That would be quite unfair to the third party. That being so, I beg leave to withdraw the amendment and, on the advice of the Minister, I will not move Amendment No. 8.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 2 agreed to.

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

Lord Ross of Marnock moved Amendment No. 9: Page 4, line 36, leave out from ("spouse") to ("may") in line 37.

The noble Lord said: I tabled this amendment because the point made in this provision, which it is proposed to delete, seems unnecessary. It says: …if he or she has occupancy rights". The whole thing arises because they have occupancy rights, and therefore I thought the inclusion of this phrase was otiose or, to repeat a phrase I heard from the Liberal Benches earlier dealing with Liverpool, "otiose and unnecessary". I beg to move.

The Earl of Mansfield

If Clause 1(5) were deleted, then of course these words would be superfluous, and I have already undertaken to examine Clause 1(5) and I therefore hope these words could fall to be examined in the same context.

Lord Ross of Marnock

In that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 10: Page 4, line 41, leave out ("is satisfied") and insert ("appears to the court").

The noble Earl said: I will speak at the same time to Amendment No. 12, if that course is convenient to the Committee. These are the first of a number of amendments which enable the court to come to a view without the application going to a formal hearing of evidence—a proof—which might be necessary if the word, "satisfied" were to be interpreted in a strict sense. It is not thought desirable that the court should be required to hear evidence before coming to a decision merely because the non-applicant spouse or partner is not present or represented in court when the application is considered. There might be considerable delay if a formal proof was always required, which would be undesirable particularly where there was a history of violence. In these circumstances, prompt action is needed. In all cases the application will have been served on the other spouse, who will therefore be aware of what is being alleged. If that spouse chooses not to go to the court to challenge what is being alleged, it is reasonable that the court should be able to accept that the allegations are correct.

Lord Fraser of Tullybelton

While I do not wish to oppose the amendment, I suggest that the subsection as a whole should be looked at. It begins by saying, "The court shall grant an application". I should have thought we were here in a discretionary kind of region and that more appropriate words might be, "The court may grant an application", which would seem to go better with the substitution of words being proposed. I am not sure whether I should be making this point now or on the clause stand part.

The Earl of Mansfield

The noble and learned Lord could certainly make his observation on the clause stand part, if he did not wish to make it now, but I will certainly bear it in mind.

On Question, amendment agreed to.

4.25 p.m.

Lord Ross of Marnock moved Amendment No. 11: Page 5, leave out lines 22 to 24 and insert ("An interim order shall not be made unless the applicant spouse appears personally before the court").

The noble Lord said: The requirement for the non-applicant spouse to be afforded an opportunity of being heard or represented could of course be impossible to meet. A man might have left his wife in an owner-occupied house and disappeared, may be for weeks, months or years, yet she may need occupancy rights quickly in order to meet the payments about which we spoke earlier. From that point of view, I believe it would be wrong to impose the obligation that an interim order should not be made unless the titled spouse was heard. Bearing in mind that the application is for only an interim order which can subsequently be varied by the court in the light of the circumstances of the case, we should be justified to make this change so as to ensure speed. The words would then read: An interim order shall not be made unless the applicant spouse appears personally before the court and is able to satisfy the court of the necessity for speed and action to preserve her rights and benefits of occupancy.

The Earl of Mansfield

The reason behind the words as they appear is that if they did not it would be possible to apply to a judge in chambers for an interim order to protect a spouse's interests before the action was served against the other spouse. The interim order in such circumstances would be granted on the ex parte statement of the applicant or even simply on a written application. The existing provision requires that an interim order can be made only if the non-applicant spouse has been given an opportunity to be present in court. That will be done by serving on him or her a copy of the application and a note of the date, time and place when the court will consider the application. It is not necessary that the non-applicant spouse attend at that time; only that he be given the opportunity to do so if he wishes. This overrides the danger of a one-sided statement being given without any opportunity of rebuttal.

But the matter goes much deeper and more seriously than that because if the proviso were not to be made, a husband—let us assume for these purposes that he is the subject of such an order—might be quite unaware that he is subject to an order, and that order might restrict his occupancy rights in the matrimonial home. There could be an exclusion order and of course a power of arrest attached to that interim order, in which case he could, by coming back to the home, find that he is breaching a court order merely by going upstairs without having heard anything previously about the court hearing. I suggest that is a quite unjustifiable position. The proviso is intended to avoid it by ensuring that the husband can argue his case or be represented before the court, and I suggest that in common justice he must be given that oppor- tunity.

The noble Lord's alternative is unsatisfactory. It does not provide a safeguard for the non-applicant spouse, since it would enable the interim order to be made without the non-applicant spouse being given an opportunity to present his, or her, side of the case, in particular if he or she disagrees with the statements in the formal written application. In effect a person in this position could be arrested, because for these purposes service need be carried out only by post, by way of recorded delivery. So if someone were away from home, the papers would be deemed to have been served on him even though he might know nothing at all about the proceedings. I hope that with those reasons I have illustrated that the amendment is quite unsatisfactory and not acceptable.

Lord Ross of Marnock

I am not entirely happy about what the Minister has said on the matter. There remains the point that the man might have left his spouse; he might have disappeared, with no intention of returning home. How long a period must elapse before the requirements of the Bill are satisfied in terms of his having been, afforded an opportunity of being heard by or represented before the court"? How is the period in which to do that defined? What is to be the time lag? Nothing at all is indicated. In the meantime the wife might be in an unfortunate position, having gone to the court and been granted occupancy, yet unable to exercise her rights simply because of this particular provision in the Bill.

We are dealing here with an interim order. We are not dealing with an exclusion order, to which different conditions apply. The noble Earl jumped ahead to the matter of an arrest, which can be attached to an exclusion order. I think that here he has gone too far in trying to meet my argument. However, I shall be satisfied if he gives some indication of the time that would have to elapse in respect of affording, an opportunity of being heard by or represented before the court". In the meantime the wife and family are probably waiting for justice that they cannot get.

The Earl of Mansfield

I do not think that I can help the noble Lord beyond repeating what are the procedures in these instances. The non-applicant spouse will have served on him, or her, a copy of the application and details of the time and place of the hearing. That is as far as the applicant spouse need go. If the non-applicant spouse does not attend, or does not choose to play any part in the proceedings, then it will be up to the court to make such order as it thinks fit; but at least the non-applicant spouse will have been given an opportunity of meeting the case—and that is the important part of the matter. What I object to, and what the Government object to, is the proposal that the procedures should be started without the non-applicant spouse knowing anything about them, still less being able to defend himself or herself.

Lord Mackie of Benshie

Will it follow that if the non-applicant spouse cannot be found, the proceedings will go ahead in any case?

The Earl of Mansfield

I tried to explain that point earlier. Very often spouses go missing. They become fed up with what I might call the matrimonial conditions. In that eventuality all that is required is that the non-applicant spouses be notified of the hearing. The court will fix the time for the hearing and the parties can prepare their cases. If the non-applicant spouse chooses to ignore the notification or do nothing about it, then he, or she, will have to bear the consequences.

Lord Drumalbyn

Does my noble friend mean that the non-applicant spouse will have been deemed to have been, afforded an opportunity of being heard", if notice of an application is sent to him at what is his usual address? I think that the difference between what is being said on opposite sides of the Committee relates to the point that it is very probable that the non-applicant spouse will want to ensure that he is not available. He might want to get out the way so that it is not possible for the notice to be served on him. Surely one can recall examples of other legislation where notice is deemed to have been served if it has been sent to the person concerned at the address at which he is accustomed to receive such notices. Could not a provision along those lines be added in order to resolve the difficulty?

The Earl of Mansfield

I am obliged to my noble friend, but I really do not think that there is a difficulty here. Notice of the proceedings can be served on the non-applicant spouse in person, or by post, either at his last known address or at his place of work. I also understand that the court can serve the notice by way of edict if the address of the non-applicant spouse is really not known. As the Bill stands there is no injustice towards either party. The applicant spouse can obtain his or her relief, while at the same time nothing can be done without the non-applicant spouse having the opportunity to defend himself, if his whereabouts can be ascertained. It is as simple as that.

Lord Fraser of Tullybelton

I think that the Minster is plainly right on this matter. It should be intolerable if there could be pronounced an order excluding a man from what had hitherto been his home without his knowing anything about it. He might return home and find himself in contempt of court by entering what he thought was his own house. There could well be a malicious wife who made entirely unfounded assertions against an absent husband, and he might return to find that position prevailing. In my submission, it would be absolutely intolerable to allow that to arise.

With regard to the question about difficulty of service, there is often great difficulty when a person cannot be found, but in the end edictal citation is a well-established method of dealing with that situation. The man's friends or family may pick it up and pass it on to him. If the man absents himself deliberately, makes himself inaccessible, it is his own look out.

Lord Ross of Marnock

That being so, I think that the Government ought to look at the whole of Clause 3. We are dealing, first, with the application for a court order, which does the real damage. Then there is the provision: Provided that an interim order may be made only if the non-applicant spouse has been afforded an opportunity of being heard by or represented before the court". That is the first that one hears about, an opportunity of being heard by or represented before the court". It does not apply in relation to what has gone earlier.

Leaving that point aside, am I to understand that what is meant is that the court itself will decide on a date on which the hearing will take place, and that the court itself will convey that decision to the non-applicant spouse? If the non-applicant spouse does not respond to that notification, will it be taken that he has been afforded an opportunity but has not taken advantage of it, and so the proceedings will go ahead? If that is so, then the matter of timing is being left to the discretion of the court. If that is the case, I am quite satisfied, and I should be prepared to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 12: Page 5, line 37, leave out ("the court is satisfied") and insert ("it appears to the court").

The noble Earl said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 13: Page 6, line 9, after ("writing") insert ("to the court").

The noble Lord said: This, too, is familiar, because here we come back to "may renounce in writing". This is the application in respect of possession or use of furniture and plenishings. I felt that we had to strengthen it. The amendment adds the words "to the court" after the word "writing". It may be that the noble Earl is not satisfied that "may renouce in writing to the court "is strong enough. It may be that we could have a look at this again. Perhaps the Minister can tell me what form the Government think this renunciation in writing will take. The danger still arises in relation to violence.

The Earl of Mansfield

If a spouse renounces the right to apply for the possession or use of furniture and plenishings, there will be no application to the court under Clause 3(2) and in that case the court should not be concerned with the renunciation. It would be intolerable, if not unnecessary, for a court to act as a kind of filing system of renunciations in these circumstances. If the renunciation takes place after court proceedings have commenced, I am advised that court procedures will be able to take care of this situation. I am saying to the noble Lord that there is in fact no necessity, no point, in his amendment, and I hope he will withdraw it.

Lord Ross of Marnock

I can only visualise this being applied after a hearing or during the consideration by a court. I will take the word of the Scottish Office. If they say the words are unnecessary, I am glad to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

4.43 p.m.

Clause 4 [Exclusion orders]:

Lord Ross moved Amendment No. 14: Page 6, line 17, leave out (""the non-applicant spouse"").

The noble Lord said: With Amendment No. 14, perhaps I may speak to Amendment No. 16. It is virtually the same. This is in the interests of clarity, to get rid of unnecessary parenthetical phrases. In one case, I have changed "that" and put in the word "other". We have in the first instance 'an exclusion order' suspending the occupancy rights of the other spouse". We have titled spouses, non-titled spouses, and non-applicant spouses. To my mind the subsection would be very much clearer (as also would be the following subsection) and would lose nothing in meaning if, first, we got rid of these parenthetical phrases, and if, in the second case, we got rid of "non-applicant spouse" and made it read, "the other spouse". I think that is clearer. It is otherwise very confusing and muddled. I beg to move.

The Earl of Mansfield

I appreciate that the noble Lord has tabled what is to him, possibly, drafting amendments which would improve and simplify the language. I think the removal of the words "non-applicant spouse" would create problems in other parts of the Bill, since the reference in Clause 4 implicitly defines what is meant by "non-applicant spouse". Furthermore, if it was removed it would require a number of consequential amendments elsewhere in the Bill.

I think we have to consider how this admittedly clumsy piece of English came to be in the Bill at all. The basic problem which the draftsmen of the Bill had to face was the desire to appear even-handed as far as the sexes were concerned, not only as to their rights but as to their language. Therefore, the basic problem is to avoid the use of "his" or "her". I know that the Interpretation Act covers that point happily by, in effect, equating "her" with "his"; but I do not think that would be a solution which would commend itself to the feminine interests who are particularly to be protected by this Bill. So it was in these circumstances that the term "non-applicant spouse" came to be framed. It may appear somewhat contrived, and it is one which does not have much use in normal speech—certainly not in my normal speech. Nevertheless, it is very useful in the context of the Bill.

It is more precise than the use of the word "other", which the noble Lord, Lord Ross, proposes to insert in Clause 4(2), and it can be used in circumstances when the word "other" would not do. For example, in Clause 4(6) reference is made to "the non-applicant spouse". If the words "the other spouse" were inserted in its place, the section would lose some of its clarity and a more elaborate form of words would be necessary. Something like, "the spouse other than the spouse who applied for the interim order" would have to be inserted. That is even worse than the present position. As I have said, the term is used in a number of places in the Bill and it provides a useful way of describing these particular people even if the language is cumbersome. The term "non-applicant spouse" can apply either to the "titled" or to the "non-titled" spouse, depending on the circumstances. I agree that simplicity of language might be a good aim, but in order to achieve clarity and, at the same time, to maintain this non-sexist stance, more contrived language would be needed.

The Government are very flexible on this and are open to suggestions. I at one moment timidly suggested that the word "respondent" might be used as being well-known and really quite easy to understand; but I am informed that while that is in common use south of the Border it is not so north of the Border, and perhaps would be undesirable. If any noble Lord has any suggestions as to how to get round this—and I am sure the noble Lord, Lord Ross of Marnock, will see that his drafting amendments, although perfectly felicitously phrased in the context of this clause, simply would not do if repeated throughout the Bill—I should be happy to consider them. In any case, we shall continue to search to see if we can find a happier phraseology.

The Earl of Selkirk

The noble Earl is flexible but I hope he will not make the Bill less clear than it is at the present time. The words "titled" and "non-titled", let alone "other spouse" and "non-applicant", are very confusing. These are specialised words, and unless they are made perfectly clear it will lead to nonsense.

Lord Ross of Marnock

In the first four lines we have "titled spouse", "non-titled spouse" and "non-applicant spouse", which, in the first instance, was an afterthought and was put into inverted commas or brackets. Frankly, I had never intended the word "other constantly to be used instead of "non-applicant spouse". If I had sought to change that, I would have done so earlier, where it is first mentioned—even in the last amendment that we were dealing with. I am concerned about the immediacy of understanding. Let us read it as amended: …either spouse may apply to the court for an order … suspending the occupancy rights of the other spouse". Surely that is perfectly clear. You do not need the following words in the Bill: ('the non-applicant spouse')". The other suggestion I made is the words: for the protection of the applicant or any child from the conduct of the other spouse". The words "applicant" and "other" go together. I am not suggesting that we should go through the whole Bill and wherever we have "non-applicant spouse" that we should change it. There are places where it is right. But it is certainly quite unnecessary here and it is confusing, surrounded as it is with words such as "titled", "non-titled", "spouses", "spouses are entitled" and then "other spouse" and "non-applicant spouse". As many a man would say, let us get rid of some of the spouses. I would get rid of this particular non-applicant spouse in line 17 of page 6.

I hope that the Government will think again. They have misunderstood the suggestions as to what I want to do. If I wanted to change that I would have sat down and done it. I should not like to keep the Scottish Office up next weekend the way they were probably very busy this last weekend. I have tender thoughts occasionally for that office. I shall have another look at this amendment. I am not happy about the Government's attitude. I think they are muddle-headed here. I shall beg leave to withdraw the amendment.

Lord Simon of Glaisdale

It is with great trepidation that an English lawyer intervenes on a Scottish Bill. But the noble Earl's argument went far beyond Scottish legislation in a rather alarming respect. By the Interpretation Act one can use "he" to include "she", et cetera; and that avoids a great deal of peripheracy. It is rather an alarming thought that we are now going to jettison that useful shorthand because of the susceptibilities of those who insist on a complete sexual equality which is really quite inappropriate in the field of parliamentary drafting.

The Earl of Mansfield

I am sure that, having listened to the debate, the noble and learned Lord will now understand the conditions in which this Bill came to be drafted, and the way in which it is sought to get over—if that is the word a number of difficult problems. I particularly agree with what my noble and learned friend said, that clarity is all and that through drafting one should try, above all, not to make what it is sought to be clear more obscure. I respectfully agree with the noble and learned Lord and would use the word "his". I am a titled spouse and most of those in this Committee are. I do not mind being personally labelled a chauvinist when it comes to the interpretation of statutes. Nevertheless, the Government feel that they have to tread very warily—like Agag—in certain circumstances. I think that we are going about it in the same way, although the Government are very well aware of the noble and learned Lord's strictures.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 15: Page 6, line 19, leave out ("is satisfied") and insert ("appears to the court").

The noble Earl said: In moving this amendment, perhaps I may also speak to Amendment No. 18. These are further amendments to remove any question that in undefended cases the court need hear evidence before coming to a decision. If the spouse against whom an exclusion order is applied for chooses not to appear to defend the application, there is no reason why the applicant spouse should require to lead evidence to back up statements made in the application. If the non-applicant spouse disputes what is stated in the application, he or she can defend the case. I beg to move.

On Question, amendment agreed to.

[Amendment No. 16 not moved.]

Lord Ross of Marnock moved Amendment No. 17: Page 6, line 21, at end insert ("or is likely to be").

The noble Lord said: This is more than just drafting. The subsection reads: the court shall make an exclusion order if it is satisfied that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct of the non-applicant spouse which is injurious to the physical or mental health of the applicant or child". I suggest that it should better read: which is or is likely to be injurious".

One of the great difficulties in this whole field is proving the violence of the husband. We have not dealt yet with the question of corroboration. I have known cases where the police could go along, having been summoned by a wife, and because there is no corroboration except her actual word, they can do nothing. I have known them stand outside the house hoping the violence may be repeated within their hearing. What I want to do is try and get this before it goes too far. We should appreciate that it is enough to prove the risk of injury—mental or physical—to a child or wife, as the case may be, to get action taken.

The revised wording would allow the court to grant an exclusion order where there was a risk of conduct injuring physical or mental health. That is before the breakdown and the violence had actually occurred on this particular occasion. This is not an easy matter; but it is desirable that these words should be put in the Bill. It leaves it to the discretion of the court. There are difficulties in respect of proof and people say: "Why wasn't action taken?" Action was not taken because the court had not the power to take it.

If the court thinks that there is likely to be violence to the extent that it is going to be injurious to the health—mental or physical—of the wife or child, then they should be empowered to act. That is why I suggest we put these words in the Bill. I beg to move.

The Earl of Mansfield

The amendment would considerably widen the kinds of conduct which the court might regard as being sufficient to warrant the granting of an exclusion order. At present the court must be satisfied that the conduct is injurious to the physical or mental health of the applicant spouse. As the noble Lord said, by this amendment he seeks to extend this to include conduct which is likely to be injurious. There is a belief that in its present form the clause requires evidence that physical or mental injury has already occurred to be given, and that this evidence might not be readily available. I concede, as the noble Lord, Lord Ross, said, that the matter is by no means easy.

The granting of an exclusion order, as several noble Lords have stated, is a serious step, not least because it will almost always attract the power of arrest and, as noble Lords have equally said, it excludes the non-applicant spouse from the matrimonial home. So the Government consider it right that where the applicant spouse, or the children for that matter, require protection, a powerful remedy such as this should be available. But one has to take care that the liberty of the non-applicant spouse is not unjustly curtailed.

It is not easy to draw a dividing line between where conduct ceases to be what I might call "unpleasant" and reaches the point where it is likely to be injurious to physical or mental health. For instance, there could be a sudden loss of temper with a verbal argument, and I suppose that if the argument was sufficiently violent it could be regarded as likely to be injurious to mental health. Such an interpretation might well be justified if there was an earlier history of violence. In that case the earlier violence would be a factor in the court's consideration of otherwise tolerable behaviour. But in most cases I am sure noble Lords would agree that it would be inappropriate to grant an exclusion order on the basis of such loss of temper.

The Government are also alive to the possibility that if there are too many applications for exclusion orders on flimsy grounds the courts may be reluctant to grant them, even in cases where they are needed. So although I concede that there may be some anxiety that the subsection as drafted might require proof of physical or mental injury, the subsection does not say that a court shall grant an exclusion order only where there has been physical or mental injury. It says that a court shall grant such an order where it is necessary to protect a spouse or child from conduct which is injurious; that is, tending to injure. So it is up to the court to decide when conduct may be considered as being such that it is tending to injure.

I think that the noble Lord has attempted to amend the subsection in the wrong part of the sentence. I think what he is trying to cure is the situation where a court is satisfied that it is likely future conduct which is going to cause the injury rather than past conduct which is going to cause future injury. So to that extent perhaps an amendment should be drafted in a rather different form. By way of conclusion, may I say to the noble Lord that I think the whole of this part of the clause needs to be re-examined; and that I intend to do between now and the next-stage of the Bill.

Lord Ross of Marnock

I would agree with the noble Earl on that. We will need to read this with the changes that are already going to be made regarding this question of protection. There will be some changes in subsection (5) of this clause, which are mainly of a drafting nature. I, too, will have a look and see whether it is right that the anticipation of violence, or the words which I hope will lead the court to take action in anticipation of violence, should be put in somewhere else. I realise that the Minister is sympathetic towards the points that have been made, and with that in mind I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 18: Page 6, line 24, leave out ("is satisfied") and insert ("appears to the court").

The noble Earl said: I have spoken to this amendment, and I beg to move.

On Question, amendment agreed to.

5.5 p.m.

Lord Ross of Marnock moved Amendment No. 19: Page 6, line 29, leave out from ("Act") to end of line 42.

The noble Lord said: We have in this Bill set out to try to protect people and to give them greater freedoms within their own homes. In this amendment I have tried to remove what I think is one of the worst features of this Bill. We are prepared to grant protection to everybody else but not to people who are in tied cottages. If a husband is violent and he lives in a local authority house, action can be taken, but, if a husband is violent and lives in a tied cottage, no matter what he does to the children or his wife they are going to get no help under this Bill. I know the Minister will say that that is not exactly true but, when you read this clause, together with another later one which deals with the same thing, there is no argument about it. The Bill, to my mind, takes away the discretion of the courts to act in these particular cases—that is, where the matrimonial home is part of an agricultural holding or is let as an instrument of employment, and so on.

As it stands, I think it undermines what we feel should be the paramount principle of the Bill—namely, that protection from conduct injurious to physical and mental health should be the most important consideration to the court. This clause will allow a man in a tied agricultural house or in a house which is used for business purposes to be violent to his wife without danger of exclusion. Of course, the criminal aspects of it would still come in, but, if what we seek to do here is to give the spouse and the family protection and freedom of the home, then there is no help here. The Scottish Law Commission at pages 54–55 addressed itself to this question of balance, and the members came to this conclusion: The court should not, we think, be precluded from having regard to such consequences"— that is, loss of employment and so on. They finished up by saying: The court should at the same time have a residual discretion not to grant an exclusion order in those special cases". They felt, however, that the court should be required to make an exclusion order if it was satisfied that the need for protecton arose, "unless there are exceptional circumstances". In other words, we leave it to the court. But here we do not leave it to the court: we put it into the statute. Would it not be better if we ended subsection (3), as I suggest, in line 29 at the word "Act", and then said: The court shall not make an exclusion order if it is satisfied that the making of the order would be unjustified or unreasonable having regard to all the circumstances of the case"— rather than bringing the attention of the court specially to the question of the tied cottage, the business property and so on? I think that, because we did not take the action in. Scotland in relation to the tied cottage, though that was done in England, we are denying the wife in those particular cases the protection which, very often, a court would give her. Before an eviction took place it had to go before the sheriff, and the sheriff would usually grant the whole family six months if it were a question of eviction. But here the non-titled spouse—the wife—is going to have no protection at all, and I think that that is quite wrong. It may well be that the person who owns the tied cottage would be quite prepared to allow the non-titled spouse to stay there, but I am afraid that the whole thing is weighted here. It destroys and undermines the whole principle of a very desirable Bill. I beg to move.

Lord Collison

May I briefly support this amendment? Your Lordships would expect me to do so. I know that this is Scotland and not England and that there are considerations affecting the tied cottage in agriculture and houses which are used for business purposes in other industries. Nevertheless, I do not think that those considerations can override the right of the spouse to have the same protection as anyone else. It is quite wrong that these exclusions should be deliberately mentioned in the Bill, and I agree with my noble friend that it would be much better to terminate the clause at the point he suggested. People in tied cottages are at a disadvantage anyway, but your Lordships will not want me to go into that very broad subject. However, the noble Earl on the Front Bench opposite should give careful consideration to what has been said, and I hope that he can say something to us which will give my noble friend and myself some satisfaction.

Lord Mackie of Benshie

I must say that, for the first time, I disagree. I must declare an interest, because I am a farmer and in this case I can see incredible difficulties arising. It would place many farmers in an intolerable position, if the house of a stockman was taken up by his wife. There must be other solutions. What I said applies also in the case of agricultural holdings. If a farmer in a let farm was excluded from the house, it would make the running of the farm extremely difficult. I think that other solutions need to be found in this case.

Lord Drumalbyn

Before my noble friend replies, I wonder whether I may ask him to explain a little how these two legs of subsection (3) will work. I notice that paragraphs (a) and (b) are connected by the word "and". I have read that as meaning that in every case the court would have to look at Clause 3(3) together with the requirements of paragraph (b). Secondly, I do not quite understand the construction of paragraph (b). The words, subject to a requirement that the non-applicant spouse or, as the case may be, both spouses must reside in the matrimonial home", are not the same as in the draft Bill which is attached to the Scottish Law Commission's report. What is the significance of that? I do not understand that. I hope that my noble friend will tell us the significance of the difference between the two drafts.

The Earl of Mansfield

If I may say so, I think that the noble Lord, Lord Ross, is under something of a misapprehension in the case of this amendment, probably prompted by his dislike of tied houses, and that has prompted the noble Lord, Lord Collison, to spring to his defence. I shall not say anything about tied houses in Scotland and their desirability or otherwise. What I shall say is that what this subsection does is to give the court a complete discretion.

What the Scottish Law Commission did when it proposed this subsection was to give the court discretion in the case of, for example, service tenancies and tied cottages. In those circumstances, the court has a discretion where occupancy of the home by the non-applicant spouse was a condition of the lease. If that spouse were excluded, the tenancy might come to an end and then the applicant spouse would lose his or her occupancy right under Clause 5(1)(b), and the object of the exercise would be frustrated. I wish to emphasise that the court is given only a dis- cretion not to grant an exclusion order; it is perfectly possible for an exclusion order to be granted against someone living in a service tenancy, if the court feels that it is reasonable, right and proper in the circumstances.

So what, then, is the situation which was envisaged by the Law Commission when it made this recommendation? For instance, it could be an isolated tied cottage where a husband could not find suitable accommodation which would enable him to continue his employment if he was excluded. However, in other circumstances—for instance, if suitable alternative accommodation could be found for a non-applicant husband, and his employer accepted that his exclusion from the matrimonial home did not terminate the lease—it would be perfectly reasonable for the court to make an order under Clause 4(3) and it would be at liberty to do so. Whether the exclusion order means the loss of the tenancy, with the result that the roof over both of these people disappears, is a matter for the circumstances of each case. It is a matter which each court will have to take into account.

All that subsection (3) does is to enjoin the court to have regard to these differing situations which I have tried to illustrate. The words of the clause draw to the attention of the court and the applicant spouse the conditions to which the court must pay heed before either making or not making an order, in order to avoid the court granting an order which effectively led to the applicant spouse losing his or her home and not only occupancy rights.

I am afraid that I do not know why the present draft varies from the Scottish Law Commission's draft. It is by no means unusual. But I shall let my noble friend know verbally, if I get the answer, or otherwise. He asked me how subsection (3) was constructed. Under paragraph (a), the court has to pay regard to the circumstances set out in Clause 3(3). Paragraph (b) applies only if the home is in one of the categories referred to in Clause 6(1) or 6(2). I hope that that satisfies my noble friend.

What I want to say to the noble Lord, Lord Ross, who put down an important amendment, is that nobody is being denied any rights. In effect, the court is being urged in statutory form to consider all the aspects of the case, and to do justice according to the possibilities of the situation.

Lord Ross of Marnock

I should have hoped that the court would do that anyway. If my amendment were accepted, that injunction would still be laid upon the court. Subsection (3) reads: The court shall not make an exclusion order if it appears to the court"— if I include the new words which the Minister has inserted— that the making of the order would be unjustified or unreasonable— (a) having regard to all the circumstances of the case including the matters referred to and not excluding others. There is no doubt that, by mentioning specifically the matrimonial home being an agricultural holding, a service cottage or a business carried on from there and affecting employment, that it is putting the balance away from the protection of the wife and family as regards the matrimonial home.

It is also taking for granted that the noble Lord and all the other farmers in Scotland would allow that kind of thing to go on. What would they do with a worker of that kind? Would they not interfere? They would probably take other extreme action. They would probably evict him, in which case the wife and children would again be homeless. But I know Scottish farmers and farmworkers. Very few of them will make applications. It will not mean ruin to those who are applying for exclusion orders on their husbands. The noble Earl knows quite well that there are no more tender-hearted people than farmers when it comes to an exclusion order which has been granted by the court. It does not automatically mean that the wife and family would be put out by a Scottish farmer.

It has been put to me—and I have a great deal of sympathy for what they say—that the tied cottage problem in Scotland is different from that elsewhere. In Scotland we have the sheriff. The noble Earl is a Scottish farmer. He could not throw people out without the sheriff coming along and safeguarding certain human rights for the individual. I do not think that this is fair. Its implication and effect are important. It has been taken by the noble Earl, looking at it from the farming point of view, to mean that whoever else the Bill applies to, it will not apply to people living in service cottages, be they tied cottages, police cottages, or anything else. That is a matter for considerable regret.

I do not propose to divide the Committee upon the amendment but I am very unhappy indeed about the Government's insistence upon the inclusion of these words. I do not think they add anything. To my mind, they take away the discretion of the court, by virtue of the fact that the court has to look specially at this, which is in addition to all the other things that they have to take into account. It is quite unnecessary and, to my mind, it is something which weakens the Bill and its effect.

The Deputy Chairman of Committees (The Earl of Listowel)

Is the amendment, by leave, withdrawn?

Lord Ross of Marnock

No; but I will allow it to be voted down.

On Question, amendment negatived.

5.22 p.m.

The Earl of Mansfield: moved Amendment No. 20: Page 7, line 1, after ("shall") insert (", on the application of the applicant spouse,").

The noble Earl said: Perhaps I could speak to Amendments Nos. 29 and 51 when I move this amendment. These amendments are necessary to comply with the accepted court procedure that the court may grant only what is specifically requested in the application before it. The court is still obliged to grant the orders under Clause 4 and to attach a power of arrest under Clause 14. The amendments do not provide for any element of discretion by the court. It is expected that the solicitor acting for the applicant spouse will as a matter of course include in the crave of the application all the orders which the Bill provides for that spouse's protection. In relation to exclusion orders, the amendment to Clause 14 needs to be read in conjunction with the amendment to Clause 4, to provide a new subsection 6(A). This has the effect of requiring every competent application for an interdict to seek a power of arrest, and the court has no discretion to refuse such a request. I beg to move.

On Question, amendment agreed to.

The Earl of Selkirk moved Amendment No. 21: Page 7, line 4, after ("interdict") insert ("inter alia").

The noble Earl said: May I take Amendment No. 26 along with Amendment No. 21. This amendment inserts the words "inter alia". The sheriff may grant an interdict inter alia prohibiting the non-applicant spouse from entering the matrimonial home. It is intended to give to the sheriff a very wide discretion as to what he wants to do. Subsection 5(a)—this is Amendment No. 26—puts in a power prohibiting the non-applicant spouse from entering or remaining in a specified area. I object to the words, "specified area". This is too vague and too uncertain. I do not know what it can mean. I am satisfied that sheriffs are sensible people. They will not do stupid things. None the less, you are giving to the sheriff a power which is completely new to Scots law and which could have an extremely wide extension.

What is a "specified area"? Is it the gardens and the immediate surroundings of a house? Is it an area, or a parish? Is it a district? Is it a town, is it a county or, I may even say, is it Scotland? All of those areas are within the power of a sheriff. I do not think that they should be extended so far as they are. I should prefer to allow the sheriff to have wide powers to do what he thought to be appropriate in this case.

I should also like to make this point. If a specified area is made and a man goes in there to make some purchases or because he has business there, immediately he is liable to arrest. This is a very strong power. I shall say a word or two presently about arrest. I am not quite certain that the free use of arrest in the Bill is not extended a great deal further than it needs to be.

I would ask the Government either to accept my amendment and to leave it for the sheriff to decide what is appropriate or to find a very much more satisfactory definition of the words "specified area". The Scottish Law Commission use words which give a much more narrow sense: An interdict prohibiting the husband from entering an area which includes the matrimonial home itself". That gives a sense of it being two or three streets around the house, which could be appropriate. A "specified area" could mean anything. I would ask the noble Earl either to accept what I am suggesting, to leave the sheriff perfectly free to do what is proper, or to find some much more narrow sense in which the term "specified area" could be used. All we want to do is to prevent the wife or the husband from being molested. The words used here are widely in excess of what is essential initially for that purpose. I beg to move.

Lord Fraser of Tullybelton

I should like to support the noble Earl, Lord Selkirk. It seems to me that this is giving an unduly wide discretion to the sheriff. What we want to do is to, prevent the husband from standing outside the front door or at the end of the street in such a way as to frighten the wife or to annoy her every time she goes in and out of the house. If the specified area were defined as being an area immediately adjoining the house, thus putting a limit upon it, I should have thought that was what was intended and that it ought to be stated in the Bill. As the Bill at present stands, it seems to me to be unduly wide and unnecessarily wide.

Lord Ross of Marnock

The noble Earl kept using the words "in a specified area", but the Bill says "in a specified area in which the matrimonial home is situated". This is very much more limited than what the noble Earl seemed to imply. He even used the word "Scotland". If common sense is used, I think the sheriffs will be able to specify the area in which the matrimonial home is located in a very much more restricted way than that. I certainly could not support this particular amendment of the noble Earl.

The Earl of Selkirk

May I make this point to the noble Lord: it is not that I think that the sheriffs are stupid but that we are giving powers which are grossly in excess of what is required. I am always against giving powers which are wider than necessary. That is the point which my noble and learned friend Lord Fraser of Tullybelton made, and that is what I am objecting to.

Lord Ross of Marnock

I can assure the noble Earl in relation to the kind of case we are dealing with and the kind of persons we are dealing with—the violent husband who is determined to continue to be violent in respect of both the wife and the children—that shortly I am going to move an amendment which he may think is even wider but which I believe to be absolutely essential in relation to the history of the cases which have built up in Scotland over a period of time. I do not think that there is very much question about the desirability of "specified area in which the matrimonial home is situated". That really means the street and what the noble and learned Lord, Lord Fraser of Tullybelton, suggested: the immediate surroundings of the home.

Lord Drumalbyn

The difficulty is that a man's place of work may be in the same area.

Lord Ross of Marnock

But not in the area of the home.

The Earl of Mansfield

It is not wholly satisfactory that my noble friend moved Amendments Nos. 21 and 26 together. If I may take Amendment No. 21 and hopefully dispose of that, if Amendment No. 28 which I intend to move in due course is accepted by the Committee then such provides for any supplementary interdicts. It will provide for an appropriate element of discretion on the part of the court. I hope, therefore, that the noble Lord will see fit to withdraw that amendment.

I come now to Amendment No. 26. The Govern- ment believe that subsection (5)(a) is a necessary provision which should be open to the court. It is, for instance, intended that an excluded husband should not be allowed to loiter in the street outside the matrimonial home. If he has been guilty of domestic violence in the past, this is bound to be upsetting and can be intimidating to the applicant wife. The intention is that in more urban surroundings a close, a stair or a street might be an appropriate "specified area", but I readily concede that there may be exceptional circumstances which arise and the sheriff may wish to depart from the norm.

I appreciate that this represents a considerable departure from the existing principles of Scots law. Nevertheless, the Scottish Law Commission considered that it was justified and the Government think the same. If I may turn to paragraph 4, subparagraph 18, the Law Commission says: It is not presently competent under Scots law to interdict a person from being in a public place and it is accordingly not possible in cases of apprehended domestic violence to prohibit the violent husband from entering any specified public area near the matrimonial home. In our memorandum we propose that in such cases it should become competent not only to interdict the husband from entering the matrimonial home but also to interdict hint from entering a specified area surrounding that home.". It goes on to argue and reflect and eventually comes down in approval of a system which apparently obtains in England and Wales but I dare not quote that in the presence of the noble and learned Lord from Scotland.

Be that as it may, it seems to me that the argument in that part of the report which I have quoted is—I will not say conclusive, because we are having a debate—certainly a very powerful one and I think that the power that is given to the sheriff to protect wives in this instance needs to be rather wider than it would be if the Committee were to accept my noble friend's amendment.

I cannot conceive that at the moment I can say in honesty that I will take this away and think again because it is difficult to know what the Government could do about this. What I can say to my noble friend is that, if he would like to have conversations or to make any suggestions between now and the next stage of the Bill, then, of course, the Government would be happy to consider them and to have discussions to see whether a form of words that might commend itself to the Law Society of Scotland and the Faculty of Advocates can be devised.

The Earl of Selkirk

I readily accept what the noble Earl has said but I do not think it is as difficult as he suggests. An area immediately surrounding the matrimonial home would suit me entirely, but the specified area is quite unspecified. It is an enormous area and it is, as the noble Lord said, an entirely new innovation in Scots law. If he is prepared to consider something of that sort I should be glad to have the opportunity of discussing it. I will not press this further now but I think it is an innovation which should not go without observation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.35 p.m.

Lord Ross of Marnock moved Amendment No. 22: Page 7, line 8, leave out ("except with the written consent") and insert ("without the express permission").

The noble Lord said: This will be a little more lighthearted. If noble Lords will glance at subsection (4)(b) they will see that the excluded spouse is prohibited from entering the matrimonial home without the express permission of the applicant", but when it comes to removal by the non-applicant spouse (that is the husband) that can only be done "with the written consent". Why the change of phrase from "express permission" to "written consent"? I suggest that they should both be the same. It is as simple as that. I beg to move.

The Earl of Mansfield

I think the noble Lord and I agree that there could be circumstances in which a spouse against whom an exclusion order had been made might need to enter the matrimonial home, for instance, to collect something from it. It would be absurd to require that spouse to obtain a court order to enable him to enter the home if the other spouse has no objections. So what the Bill therefore provides is that the other spouse can permit, either entry to, or the removal of an object from, the matrimonial home. Permission to enter can be given verbally but consent to the removal of any item of furniture or plenishings has to be in writing.

This may seem to be an onerous condition, but it provides protection for both spouses and the important part is that the consent of the spouse occupying the matrimonial home in those circumstances is in fact to a degree a derogation from the court order and I would expect that such a consent would refer to a specific item or items. The noble Lord may agree that if there was a subsequent dispute as to the facts, a written record as to what permission had been given so far as the removal of effects is concerned could be invaluable.

So this really is for the protection of both spouses. Supposing it was, as the noble Lord suggests, with the "express permission" and there was subsequently a genuine complaint, the court would then be in a position where it might treat that as a breach of the interdict. But if the spouse in occupation who had given the consent had either genuinely misunderstood what was being asked or mischievously decided to go to the court, having changed his or her mind thereafter, the excluded spouse could then be accused of a breach of interdict and be liable to arrest. So we think it is better for each party to accept minor inconvenience; in other words, to have the consent put in writing and gain the safeguards, which could be very valuable. Except for children, in a disputed marriage nothing is so contentious as property.

Lord Ross of Marnock

I think the explanation has been foolproof. We have to remember that we are dealing with unreasonable and unhappy people, and it may well be that we have to give them both express permission in order to enter, and once they have entered, if they are to be allowed to take something away, it all has to be listed and duly signed and sealed. I think one of our difficulties in relation to this is that it is always reasonable people who have to make the laws for the safeguarding of fairly innocent people from those who are unreasonable and violent. I certainly accept the explanation given by the Minister and I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

I should perhaps explain that if Amendment No. 23 is agreed to, I cannot call Amendments Nos. 24 and 25.

Lord Ross of Marnock moved Amendment No. 23: Page 7, leave out lines 11 to 13.

The noble Lord said: Not for the first time have I complained of appearing to be tough in giving people rights and then suddenly putting in at the last minute a proviso that virtually destroys these rights. Before it was Clause 1 in respect of the easier enunciation; and here we are doing it again. With exclusion orders having mandated the court to take certain action if it is satisfied, we then come to this very weak two and a half lines: unless the non-applicant spouse satisfies the court that it is unnecessary for it to grant such a remedy as it is mentioned"— although these words are going to be deleted at a later stage. To my mind, without the provisions of Clauses 4(4) paragraphs (a) to (c), an exclusion order would be useless, certainly as a remedy against violence, and it would only suspend occupancy rights without putting the violent person out. Surely that decision was taken a long time ago to come to this particular point. I do not see what they add to this clause in respect of the exclusion order because the court does not make an exclusion order unless it is satisfied that the making of the order would be justified and reasonable. Why do we have these words at this particular point, when we say in subsection (4) that in making an exclusion order the court shall do what is laid down in paragraphs (a), (b) and (c), unless the non-applicant spouse satisfies the court that it is unnecessary? If it is unnecessary for that it is unnecessary for an exclusion order. That is what it comes to. I suggest that these words are unnecessary in saying what we really mean in respect of exclusion orders in the earlier part of this clause.

Once again I fear that in giving this let-out one is buoying people up with the hope that they are going to be free from violence, but then leaving it to the court to be persuaded that the non-applicant spouse does not require to be treated in this particular way. If these words are necessary, one can forget all about the exclusion order; if one means what one says about the exclusion order, then these words are unnecessary. I beg to move.

The Earl of Mansfield

I would have hoped that the noble Lord would have commented on, if not covered, Amendments Nos. 24 and 25, which are Government amendments and which I believe provide a reasonable and perfectly satisfactory compromise. What the noble Lord seeks to do is to deny the court any discretion in relation to the granting of a warrant or interdict sought to make an exclusion order effective. I accept that without Clause 4(4)(b) there is little purpose in having an exclusion order, but there could be special circumstances. For instance, if the non-applicant spouse has left home and it is obvious he has no intention of returning, then Clause 4(4)(a) would not be appropriate, and if he had another fully furnished home neither would Clause 4(4)(c) be appropriate. Therefore, I suggest to the Committee that there should be an element of discretion in these matters. This is what I have sought to achieve in Amendments Nos. 24 and 25.

With the leave of the Committee, I should like to speak to Amendment 24 because, as has been pointed out, if the noble Lord's amendment is agreed to, that would exclude Amendments Nos. 24 and 25. I do not have very much more to say. The Government consider that Clause 4(4)(b) is an almost inevitable ingredient of an exclusion order and propose that that should be mandatory. But Clauses 4(4)(a) and 4(4)(c) in circumstances which I have sought to illustrate might not be appropriate, and in those circumstances I feel that the court should have a certain amount of discretion in the matter and that the removal of this discretion is not warranted. To put it in another way, the removal of the court's discretion in relation to Clause 4(4)(b) is a sufficient safeguard as to the effectiveness of an exclusion order. For that reason I hope that upon reflection the noble Lord, Lord Ross of Marnock, will withdraw his amendment.

Lord Ross of Marnock

I am not all that keen at times on half-way houses. I am still not convinced of the undesirability of removing these lines, but at least the Government have gone some way in remoulding, this by leaving out the Clause 4(4)(b). In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 24: Page 7, line 11, after ("unless") insert (", in relation to paragraph (a) or (c) above,").

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 25: Page 7, line 12, leave out ("as is mentioned in paragraph (a), (b) or (c) above").

The noble Earl said: This amendment is consequential and I beg to move.

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Lord Ross of Marnock moved Amendment No. 27: Page 7, line 16, after ("area") insert ("or areas, including an area").

The noble Lord said: This amendment brings us back to something we were discussing earlier; the specified area. I suggested that I was going to widen this a little—not widen the area exactly but widen the discretion of the courts in respect of the area. Sometimes the family are at risk outside the home and not just in the surroundings of the home. It has been known for violent husbands who have been dealt with by the courts to accost their wives at school when they are meeting their children or at their place of work. The implication of the effect of my amendment would be to leave it to the court to specify more than one area if necessary, in addition to the area in which the matrimonial home is situated. That is going to be looked at again.

This point is one that arises from experience; violent husbands have gone to the place where their wives work, or to a school, and have treated them to another dose of the violence which probably led to the original trouble with the courts. These are areas which the husband may predict from his knowledge will be used by the family or his wife. If the Minister can give me some assurance that he is prepared to look at this matter, I would not wish to delay the proceedings and will withdraw my amendment.

The Earl of Mansfield

I am tempted to say that with my noble friend, Lord Selkirk, on one side and the noble Lord, Lord Ross of Marnock, on the other the Government's drafting is probably just about right.

Lord Ross of Marnock

What a poor argument.

The Earl of Mansfield

I shall resist the temptation to do so because I am being so gracious to everyone tonight. What I do say to the noble Lord, Lord Ross, is that his amendment has difficulties which he may not altogether have appreciated. He is perfectly right in saying that it would greatly extend the areas from which the non-applicant spouse could be excluded by mean of an interdict, and it could lead to such a person being prohibited from entering areas around the other spouse's place of work, or indeed, the children's school. I do not believe this is a solution which would be favoured by the Scottish Law Commission. If this amendment or anything like it were accepted, it would be necessary to define such areas very strictly indeed, particularly if the spouses worked near to each other, for instance!

Being serious, I believe that in fact we have got it nearly right as the Bill is drafted, although I have undertaken to see whether it should be tightened. I say that for this reason. If an applicant fears that the non-applicant spouse might molest her at her place at work, for instance, or at the children's school, she can claim an interdict from the court restraining him from such conduct. This has nothing to do with the matrimonial interdict at the time she applies for it. Under Clause 13(2) it would be defined as a matrimonial interdict, and it would, therefore, or could, attract the attachment of a power of arrest under Clause 14(1)(b). So the wife or the applicant spouse would be afforded a very considerable measure of protection. I would have thought that these provisions as they stand would be sufficient to deter a non-applicant spouse without the necessity to restrict his freedom of movement unduly.

Naturally, as I have undertaken to my noble friend that I will look at this I will also look again at the points the noble Lord, Lord Ross, makes, but I am bound to point out that I think he is already catered for to an extent, or rather his spouse is already catered for, by the existing law.

Baroness Gaitskell

May I intervene for one moment in support of my noble friend and against the Minister. We hear every other day of instances where this occurs. I do not know why the Minister is resisting this. It is a very common occurrence. What is there against it?

Lord Fraser of Tullybelton

May I venture to encourage the Minister in his attitude? If there is a fear of the wife being accosted or molested at her work or at the school, she can get an interdict against that conduct by her husband. But this proposal is to exclude the husband from entering or remaining in an area. To say he is not to go to the area where the school is or where the wife works, which may be in a street down which he has to pass to his own work or for some perfectly legitimate reason, is quite a strong thing to do. She can get an interdict against him misbehaving there. If it is unnecessary, as I should have thought it was, to have this order excluding him from going to the area at all, I should have thought it was desirable not to extend the power beyond what it is at the moment. What the Scottish Law Commission recommended was excluding him from an area which included the house, which is I think exactly what is in the Bill. I should have thought there was great objection to extending it to other areas unless it is absolutely necessary, and as far as I can see it is not necessary.

Lord Ross of Marnock

It was because I considered it absolutely necessary that I put the amendment down. I would not have done so otherwise. This is not a question of drafting. Here was I, prepared to defend the noble Lord's and the Scottish Office's drafting against the noble Earl, and he turns round and suggests that I take a different point of view altogether. I am putting in the need for this "other area" point of view, and I am very glad of the support from the noble Baroness in regard to this. It is true that this is what happens. I had a letter from the Women's Aid Committee in Edinburgh, who are dealing with this kind of thing day in and day out. They know far more about it than people who are drafting legislation or even than those of us who are sitting solemnly deciding what should be done. They feel that protection is required because it does happen; a husband has been able to predict where his wife will be at a certain time of the day, perhaps collecting the children from school, and has gone there and made scenes. The same thing applies to the place of work.

Remember, we are dealing with a violent husband. It is going to be a terrible hardship if he has got to make a roundabout route to go to work because he is banned from the area! That is the least of what I would wish upon him. Remember, the action is only being taken because the court decides it is necessary. The discretion is there for the court. When we are dealing with the question of the situation of the home, we should deal at the same time with the question of the possibility of violence and the molesting of the wife and children elsewhere. It is not good enough to say that if it happens they can get an interdict. I know an awful lot of people who do not apply this when it comes to getting an interdict against people poaching and fishing for trout. I am not too satisfied with that business. Here we are dealing with something very much more serious and more dangerous.

I am very disappointed indeed at the reaction of the Minister to this suggestion. This is not drafting; this is meeting a practical problem by putting in two or three words, and it still is at the discretion of the court There is nothing very draconian about it. I am sorry if the Minister cannot see his way to accepting it, but if he is going to look at it again I will also look at it again. We have always got another stage and another go, and it may well be that we will come to agreeable solutions. In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 28: Page 7, line 29, leave out ("protection of the applicant or any child of the family") and insert ("proper enforcement of an order made under subsection (4) above or paragraph (a), (b) or (c) of this subsection").

The noble Earl said: This amendment is intended to limit the other orders which the court can make to those which are supplementary to orders of the kind specified elsewhere in Clause 4. This is desirable so that an unreasonably sweeping interdict will not be available. I beg to move.

The Earl of Selkirk

I think I rather regret this in some ways. You are confining the applicant "as aforesaid" to simply three things—the ejection of the husband, the entering of the matrimonial home and the removal of furniture. It seems to me that the Bill as drafted—"protection of the applicant or any child of the family"—gives a wider context, and is the purpose for which this whole thing has been raised. Now we are narrowing it down to three points, though I do not say they are not necessary. The circumstances in which this sort of thing happens are multitudinous, and there may be circumstances which bring in the protective element required which are not included in subsection (4). There may be some better reason the noble Earl has for doing this, but I do not see that his present reasons are adequate.

The Earl of Mansfield

I really do not think the Scottish Law Society would like to hear my noble friend talking in this way. He moved an amendment which was specifically designed to fetter the court's discretion and (as it were) to preserve the non-applicant spouse's freedom of movement. Here am I in effect moving an amendment which will give the applicant spouse all the protection that he or she could possibly need, but which at the same time will have the effect that what I call an unreasonably sweeping interdict which might unjustifiably infringe the non-applicant spouse's freedom of movement will not be available, and my noble friend then complains about that. I think that this really is quite a reasonable provision, if one stops to think about it.

On Question, amendment agreed to.

The Deputy Chairman of Committees

The next amendment—No. 29—has already been spoken to.

The Earl of Mansfield moved Amendment No. 29: Page 7, line 32, leave out ("where it appears appropriate" and insert (", on the application of the applicant spouse,").

On Question, amendment agreed to.

Lord Ross of Marnock

had given notice of his intention to move Amendment No. 30: Page 7, leave out lines 37 to 39.

The noble Lord said: This amendment deals with a point which we discussed earlier and I withdrew the amendment on that occasion. I do not think that we need to repeat the discussion and, therefore, I shall not move the amendment.

The Earl of Mansfield

had given notice of his intention to move Amendment No. 31: Page 7, line 39, at end insert— (" (6A) It shall not be competent to grant an interdict ancillary to an order made under this section unless the power of arrest referred to in section 14 of this Act is attached to such an interdict.").

The noble Earl said: It is slightly unusual for the Government to say "not moved", but I must tell the Committee that we are reconsidering the drafting of this amendment and in the present circumstances I shall not move it.

[Amendment No. 32 not moved.]

Clause 4, as amended, agreed to.

Clause 5 [Duration of orders under ss. 3 and 4]:

The Earl of Mansfield moved Amendment No. 33: Page 8, line 6, after ("(b)") insert ("subject to section 6(1) of this Act").

The noble Earl said: I beg to move Amendment No. 33. This amendment removes the possibility of conflict between Clauses 5(1)(b) and 6(1)(a) so that an order under Clause 5(1)(b) will only terminate an occupancy right if the dealing, usually to sell the matrimonial home, has the consent of the non-titled spouse. As presently drafted, Clause 5(1)(b) could provide a loophole for a titled spouse to deny the other spouse his or her occupancy rights. I think that this amendment meets my noble friend's point in the next amendment, Amendment No. 34. I beg to move.

The Earl of Selkirk

I should like to thank the noble Earl. This amendment saves me the bother of moving the next amendment.

On Question, amendment agreed to.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

Lord Ross of Marnock

I should like to make only one point, and that is to draw the Government's attention to the fact that even the termination of marriage—be it divorce or anything else—does not mean to say that the troubles of the wife or the ex-wife are over in respect of the ex-husband's activities and actions. It may well be that the continuation of an exclusion order would be required.

The Earl of Mansfield

I think that the point is that on termination of the marriage different rights accrue and the courts will have different ways of preserving them.

Clause 5, as amended, agreed to.

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

[Amendment No. 34 not moved.]

6.5 p.m.

The Earl of Mansfield moved Amendment No. 35: Page 8, leave out lines 31 to 34.

The noble Earl said: I beg to move Amendment No. 35 and I should also like to speak to Amendments Nos. 44 and 79. These amendments extend the protection against any dealing which might prejudice the occupany right of the non-titled spouse, to those living in caravans, houseboats and other structures. This protection is also secured for spouses with joint title to such a home. The amendments remove the area of disadvantage which residents of caravans, houseboats or other structures had in terms of the Bill compared with spouses living in a house.

The Scottish Law Commission recommended that its main proposals relating to occupancy rights should extend to caravans, houseboats and other structures. The draft Bill, however, specifically excluded them from the definition of "matrimonial home" for the purposes of protection against an adverse dealing. This was because their scheme (which envisaged a decree of annulment of the dealing) was restricted to homes which were heritable property and so capable of being registered in the Register of Sasines or the Land Register, when it came into operation. This could not be the case with movable property such as caravans. The scheme was consistent with the original recommendations for matrimonial home notices and a greater reliance on registration as a means of securing protection, both for non-titled spouses and third parties. One of the positive results of the Government's decision not to follow those proposals is that the reasons for excluding caravans and so on from the definition of "matrimonial home" no longer apply. The amendments will accordingly bring to those living in caravans and so on, all the rights and protection available under the Bill to those living in houses. I beg to move.

Lord Ross of Marnock

A very unusual conjunction—the noble Earl, Lord Mansfield, and the Lord Ross of Marnock, but I welcome on this occasion that the Government have adopted the suggestion of a very suitable amendment. I think that it would have been unfair to limit the protection or to deny it in respect of caravans and the like. I am very glad indeed to have the support of the noble Earl as regards this particular amendment.

On Question, amendment agreed to.

The Deputy Chairman of Committees

The next amendment is No. 36. I should explain that, if Amendment No. 36 is agreed to, I cannot call Amendment No. 37.

The Earl of Selkirk moved Amendment No. 36:

Page 9, leave out line 5 and insert— ("(a)" before the dealing becomes a binding obligation on the titled spouse the non-titled spouse either"").

The noble Earl said: I beg to move Amendment No. 36. The noble Lord, Lord Ross of Marnock, drew my attention to this matter in Clause 6 which is the normal procedure for selling a house which may be a matrimonial home. It seems to me that there are two sides to this matter. First, a buyer wants to be sure of the title he is getting. Secondly, we want to be fair to the wife or husband of the matrimonial home. It seems to me that both undertakings should be settled before the sale takes place.

Moreover, we should be quite clear that the rights of the wife are clearly stated in the documents. I do not think that there should be any doubt about that. With all respect to the great abomination which the noble Lord, Lord Ross, has for violent husbands—and I sympathise with him—we must remember that there are a great many normal sales which take place which have nothing to do with that and which must not be impeded. The sale of houses takes place constantly and it should be done as cheaply as possible.

I have rewritten this clause. It is a little complicated because I should like to deal at the same time with Amendments Nos. 38 and 39. The Bill would then read as follows:

"This section shall not apply in any case where— (a) before the dealing becomes a binding obligation on the titled spouse the non-titled spouse either—

  1. (i) consents or has consented to the dealing in an attested writing in such form as the Secretary of State shall by order made by statutory instrument prescribe; or
  2. (ii) renounces or has renounced his or her occupancy rights, either generally or in relation to the matrimonial home to which the dealing relates in terms of section 1(5) of this Act."
That, as the noble Lord will recall, was the one which we discussed previously. I suggest that that is the normal way which should be adopted so that both parties are satisfied—those who acquire the house, on the one hand, and, on the other hand, those who sell, including, of course, the non-titled wife. I beg to move Amendment No. 36.

The Earl of Mansfield

So far as timing is concerned, it seems desirable that there should be as much flexibility as possible in relation to the timing of any consent. If through some oversight consent has not been obtained it is, I believe, sensible that the oversight may be simply and immediately rectified so that the dealing may not be prejudiced.

I am much more attracted by the other two amendments to which the noble Earl has spoken. I have no doubt that a prescribed form of consent would be helpful both to the legal profession and to the Keeper of the Registers of Scotland since an attested prescribed form of consent will be easily recognisable as such and if its authenticity is challenged the onus of showing the consent to be false rests on the challengers. On the other hand, there may be the danger that any prescribed form may not cater for unusual cases, and the Government would like to give further consideration to the aspect of prescription of the form of consent. So, with the assurance that we shall be considering this amendment, I hope that my noble friend will withdraw it.

The Earl of Selkirk

I am happy to do that and I am grateful to my noble friend for what he has said. I am not quite clear over what he said about timing. There is a considerable advantage in knowing exactly where you stand when you make a considerable expenditure, as you would with a house. I should have thought that it would be very much better for everyone if this was, if possible, before the contract took place. I am not quite sure why my noble friend objects to that.

Amendment, by leave, withdrawn.

[Amendments Nos. 37, 38 and 39 not moved.]

The Earl of Selkirk moved Amendment No. 40:

For galley 52—

Page 9, line 9, at end insert— ("( ) the person having title, either as proprietor or tenant, to the house to which the dealing relates has stated in an attested writing in such form as the Secretary of State shall by order made by statutory instrument prescribe before the dealing becomes a binding obligation on the said person that the dealing is not in respect of a matrimonial home.")

The noble Earl said: This is a rather important amendment, because although it is desirable to know what matrimonial rights there are, it is also desirable to know what there are not. This is supposing the position when a house is sold which is not a matrimonial home. It is, of course, important to the purchaser to know where he stands here. There is no notice of what is a matrimonial home and, equally, there is no notice of what is not a matrimonial home. Therefore, I would ask your Lordships to accept that this is a security—not least for granting a mortgage—so that people know where they stand. If it is impossible to have this, it will make it that much more difficult for people in Scotland to obtain mortgages and securities on their properties. For that reason, so that those who wish to do so may benefit, this amendment should be included. I beg to move.

The Earl of Mansfield

This amendment would provide protection to a purchaser of a home in which an occupancy right remained if the seller had made an attested statement that the property was not a matrimonial home. Normally this would arise where he or she was unmarried or divorced. The effect would be to defeat the occupancy right if there was a spouse and the statement was false. The spouse would in these circumstances have to raise an action for damages against the seller, probably her husband.

This amendment would run completely counter to the philosophy underlying the Bill, in that the primary objective should be the protection of the non-titled spouse's occupancy rights. These rights could be defeated by a false statement and the Government cannot therefore accept the amendment. It seems preferable in any event that any declaration should relate to the titled person's marital status rather than to the nature of his home, which could conceivably be subject to the occupancy rights of a spouse of a previous owner or tenant, of which the present person with title is unaware. I regret that I have taken the view which the noble Lord, Lord Ross, might describe as "draconic". Nevertheless, it is the Government's view.

The Earl of Selkirk

To be frank, I do not quite understand what my noble friend is saying. It is perfectly clear that the matrimonial right is an overriding right. This would not in any way stop a matrimonial right superseding a statement of this sort. This is merely something that acts at the moment of purchase. All it says here is that it is not a matrimonial home. The person cannot possibly undertake that it will never become a matrimonial home; it may even be obvious that it should be one. I hope that my noble friend will look at this a little more closely, because I do not think that he has quite understood the situation. I do not want to press this amendment now, but it is important that I should like him to look at it a little more. If he will do that, I shall be very glad to withdraw it.

The Earl of Mansfield

I shall certainly look at what my noble friend has said in the Official Report and reconsider it.

The Earl of Selkirk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

I should explain that, if Amendment No. 41 is accepted, I cannot call Amendment No. 42.

The Earl of Mansfield moved Amendment No. 41:

Page 9, line 18, leave out subsection (4) and insert—

(" (4) The Land Registration (Scotland) Act 1979 shall be amended as follows—

(a) in section 6(4)—

  1. (i) after the words "the interest of" there shall be inserted "(i)"; and
  2. (ii) after the words "is not a long lease" there shall be inserted—

"and

(ii) a non-titled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.";

(b) in paragraph (6) of section 9(4)—

  1. (i) after the words "the interest of" there shall be inserted "(i)"; and
  2. (ii) after the words "is not a long lease" there shall be inserted—

"and

(ii) a non-titled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981."; and

(c) in section 28 in the definition of overriding interest after paragraph (g) there shall be inserted the following— (gg) the non-titled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;".").

The noble Earl said: This amendment removes from the Keeper of the Registers the obligation in terms of the Land Registration (Scotland) Act 1979 to note an occupancy right as an overriding interest on the title sheet or to rectify any inaccuracy in such a note. It places an overriding interest in exactly the same position as a short lease in these respects.

Among the reasons for departing from the Scottish Law Commission's original proposals for matrimonial home notices as registrable indications of an occupancy right, was the Government's conviction that the scheme was unduly complicated and afforded an unsatisfactory degree of protection to a non-titled spouse if she did not register such a notice. A further consideration was that substantial additional manpower would be needed in the Department of the Registrars to handle the new notices. As a result, the cost of registration would have to increase. This is similarly a factor with short leases. The proposals that the occupancy right should be regarded as an overriding interest was among other possible approaches on this point on which the Scottish Law Commission was informally consulted last autumn, after the publication of its report.

Clause 6, as drafted, however, still allows for the noting of an occupancy right as an overriding interest. This could lead to the kind of increase in manpower which was considered to be a weakness of the Scottish Law Commission's proposals. Moreover, solicitors and prospective purchasers will assume that there is an occupancy right and will make their own inquiries to establish the true position in relation to the present proprietor. Noting the occupancy right is not therefore thought to be necessary. In fact, it may be absent for any one of three reasons: first, the non-titled spouse has consented to a dealing by the titled spouse; secondly, the non-titled spouse has renounced his or her occupancy rights under Clause 1(5); or, thirdly, the owner of the property is divorced or unmarried. It would however be unreasonable to expect a purchaser or lender therefore to make inquiries about a previous proprietor.

It is intended that the Land Registration (Scotland) Rules 1980 will be amended so that the Keeper will be required to disclose the absence of an occupancy right by virtue of any of the three reasons that I have set out. In this way useful information will be available on the title sheet for prospective purchasers without diminishing the occupancy rights of a non-titled spouse or requiring anything like the same kind of manpower implications for the Keeper. I beg to move.

The Earl of Selkirk

I should like to ask only one question. In the last line is my noble friend registering the "non-titled spouse"? Would it not be wiser to register the "rights conferred on a non-titled spouse"?

The Earl of Mansfield

I will examine that.

On Question, amendment agreed to.

[Amendment No. 42 not moved.]

The Earl of Selkirk moved Amendment No. 43:

Page 9, line 23, at end insert— ("(5) Section 6(1) of the Land Registration (Scotland) Act 1979 shall be amended by inserting after paragraph (f) the following: (ff) a consent to any dealing or a renunciation of occupancy rights in relation to a matrimonial home in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.").

The noble Earl said: I should simply like to beg to move this amendment.

The Earl of Mansfield

As a result of my last amendment to Clause 6(4), this amendment would not be appropriate. It is intended that the existence of an occupancy right, or a consent or renunciation to defeat such a right, will not be registrable. The existence of a consent or renunciation may be noted on the title sheet as a result of a new rule amending the Land Registration (Scotland) Rules, which will be made after the Bill comes into operation.

The Earl of Selkirk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6, as amended, agreed to.

Clause 7 agreed to.

Clause 8 [Provisions where both spouses have title.]:

The Earl of Mansfield moved Amendment No. 44: Page 10, line 35, leave out ("The definitions of "dealing" and "matrimonial home"") and insert ("The definition of "dealing"'').

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clauses 9 to 11 agreed to.

Clause 12 [Transfer of tenancy.]:

6.20 p.m.

Lord Ross of Marnock moved Amendment No. 45: Page 13, line 25, leave out ("without intimation to the landlord").

The noble Lord said: The amendment suggested is to subsection (5) in line 25, where the court makes an order granting an application for the transfer of the tenancy to somebody else. I see the words: "without intimation to the landlord". I question whether this is fair. When the hearing takes place the landlord would be there and have a chance of being heard, but when the decision is made nobody is going to tell him about it. Why this "without intimation to the landlord"? Is it right? Could not we do without these words altogether? I beg to move.

The Earl of Mansfield

I anticipate that my noble friend Lord Selkirk is going to move his next amendment, which is Amendment No. 46. This seeks to ensure that the landlord is notified of any court order which transfers the tenancy. The Government accept that it is appropriate that the landlord should be notified of any change of tenant. I am not entirely happy with my noble friend's drafting. If and when he does move the amendment I shall suggest that I take it away and consider the matter. I hope that that will persuade the noble Lord, Lord Ross, to withdraw his amendment too.

Lord Ross of Marnock

I shall gladly withdraw my amendment in the knowledge that the Government have realised that they have sinned, and that they are going to do penance in some other way. The penance is that the poor old draftsmen in the office will sit down for hours and decide what to put in its place. I could give them a few ideas, but they are there to do the work and we are just here to make them do the work and see that it is right. I shall not press this amendment, and I am glad to withdraw it.

Amendment, by leave, withdrawn.

The Earl of Selkirk moved Amendment No. 46:

Page 13, line 28, at end insert— ("( ) An order made by the court in terms of subsection (5) above shall be served on the landlord within 48 hours of the making of the order.").

The noble Earl said: I am grateful for what my noble friend has said. I am quite happy for this amendment to be redrafted. The point is that the application is made to the landlord but when the court comes to a decision he is not informed. Obviously he should be informed, and it is right and proper that he should be. I hope that the noble Earl will agree. I beg to move.

The Earl of Mansfield

Where my noble friend's amendment is defective is that it does not say who is going to serve the notice, and neither does the clause as it stands. That is what we have to think about.

The Earl of Selkirk

I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock had given notice of his intention to move Amendment No. 47: Page 13, line 29, leave out subsection (6).

The noble Lord said: We have had the main argument about the tied cottage, et cetera, before. I am not going to repeat it. Not moved.

[Amendment No. 47 not moved.]

[Amendment No. 48 not moved.]

Lord Ross of Marnock moved Amendment No. 49: Page 15, line 1, leave out subsection (10).

The noble Lord said: This amendment I must move. This refers to the Tenants' Rights, Etc. (Scotland) Act, Schedule 1 paragraph 6. Under this the landlord—here being mainly the local authority—who wishes to transfer the secure tenancy of the dwelling-house to the spouse, or former spouse, of the tenant or person defined, and so on, has the grounds for repossession to enable this to be done. At the moment it is relatively easy for a wife who is having the kind of trouble we have been discussing today to be able to go to the local authority and to have the tenancy transferred to her. Now we are taking that away and relying entirely on Clause 12. I wonder about the wisdom of this. Transfer of tenancy to be done by the court on application by the non-titled spouse is going to mean expense, if not for those concerned then certainly in regard to legal aid, whereas the question of dealing with it through a local authority direct is very simple; there is no question of expense involved at all. Not only that, but being nearer to the ground, much nearer to the events, it tends to take place much more speedily and satisfactorily than, say, at the sheriff court.

I would suggest that the Government forget about subsection (10). It does not naturally follow. It would then he open to the non-titled spouse either to do it through the courts or, in the case of a local authority, to do it direct with the local authority housing department. Nothing would be lost. In fact, the people who would gain would be the Scottish non-titled spouses. This court avenue would not be open to tenants similarly placed in England and Wales, but there is no reason why we should not advance the protections for the non-titled spouses in Scotland in this particular way. I think it would be wise to delete subsection (10), and it certainly would not be to the disadvantage of Scottish tenants. I beg to move.

The Earl of Mansfield

The Tenants' Rights, Etc. (Scotland) Act, 1980, which conferred security of tenure on public sector tenants, would have prevented such administrative transfers as the noble Lord has spoken about, but interim provisions were included permitting administrative transfer to continue until the Scottish Law Commission's report, and the recommendations which it contained for transfer by the courts, were implemented. I should emphasise that it was always intended that the Tenants' Rights, Etc. (Scotland) Act 1980 should merely deal in this field on an interim basis.

The Government consider that the transfer of tenancies by the courts is more satisfactory than administrative transfer by local authorities since the courts are in a position to hear all the people involved. The question of accommodation is often before the courts in divorce and other matrimonial proceedings. It is convenient and easy for the courts to be able to deal with this aspect. If this amendment were accepted there would then be two separate methods of transferring tenancies, one of which was never intended to be permanent. I suggest that that would be confusing and illogical. The intention, as I have stated, is that once this Bill is enacted the provisions of subsection (10) will supersede the temporary provisions in the Tenants' Rights, Etc. (Scotland) Act 1980.

Lord Ross of Marnock

I cannot understand why the Minister says that it was never intended to be permanent. Scottish local authorities have had the power to transfer tenancies since there were local authority houses. Who is going to stop them? Who tried to stop them? Nobody. They can still do it, and they will continue to do it. What I am suggesting is that in respect of this there is no justification for saying take away this power from these particular people under the schedule which I have before me.

I admit that there would then be two courses of action open to the aggrieved tenant who wanted a change of tenancy. Remember, the clause does not deal only with the violent husband; it is a court order which could be applied in matters other than that, and I believe it would be wrong to suggest that where there are difficulties concerning local authority housing the aggrieved tenant should have to go to the courts.

The Minister says the courts can hear all the evidence, but do we need to worry the courts with this sort of thing when local authorities are doing it practically every week? If the Minister thinks there is a lack of opportunity for people to be heard by housing committees, he is wrong. It is a simple and easy process, and while it may not satisfy everybody—in which case anybody could use the provision in the Bill—please do not deny people the opportunity of using the easier local authority method by insisting on sticking to this provision.

I hope the noble Earl will look at the matter afresh and will talk to his officials about it. I cannot see that any harm would arise from getting rid of this provision and giving tenants in Scotland a choice—either the courts or through the local authority administration. Is the Minister prepared to reconsider the matter?

The Earl of Mansfield

Frankly, no. I have explained that the Tenants' Rights Act, which was enacted in contemplation of the Scottish Law Commission's report and recommendations, contained temporary provisions which were good enough while they lasted. Now we have an excellent system of transferring tenancies under Clause 12 of this measure and it is, I suggest, for the courts to regulate the rights as between spouses. That is why we have courts.

It would be easy for me to say, "Yes, I will look at it again", but what would be the point? We are creating a satisfactory method of transfer of tenancy in a proper case by courts of law which have all the facilities and experience to go into the rights and wrongs of the conduct of the spouses, and so on. I do not see it would be of the slightest use for me to say I will look at it again because, with respect, the noble Lord has not adduced one cogent reason why he wants local authorities to be allowed to maintain a parallel, separate and, as I have said, illogical system.

Lord Ross of Marnock

Local authorities are landowners. They own the houses. It is to them that tenants pay rents and it is they, not the courts, who decided who the tenants should be in the first place. I assure the noble Earl that for generations they have been able to change the tenancies. Indeed, recently they have been making them joint tenancies in Scotland without reference to the courts or anybody else. I really do not understand the Minister's attitude on this.

The Earl of Mansfield

I assume the noble Lord is being genuine and is not just making debating points. In Clause 12, for instance, the court is enjoined to have regard to all the matters specified in Clause 3(3)(a) to (d) of the Bill. Is the noble Lord really suggesting that it is within the competence of a housing committee, however honest, experienced and able it is, to carry out its functions as a democratically-elected local authority, to go into this sort of matter which I suggest, particularly when it comes to matrimonial matters, is so much better done by a court in privacy?

Lord Ross of Marnock

It is being done now and they have been doing it for long enough. The answer to the noble Earl's question is, Yes; that is what they are there for. The people elected them and they have been carrying out these responsibilities for long enough. I am surprised that the Minister refuses to see the point. There are two ways of dealing with this issue, one simple and costing little or nothing. But, no, if it must be done then it shall be done in a costly way. The noble Earl speaks like a lawyer. He should have declared an interest. I am approaching this as a simple, humble peasant who has not been in the law courts in his life. I know something about local authorities, however, and how the people of Scotland react.

The power I am speaking of has been used by local authorities and is being used now, and I suggest the Minister speaks not to his legal advisers at the Scottish Office but to his housing officers, and they will tell him that this provision is unnecessary and, in my view, undesirable. If, as he believes, it is so efficacious to go to the courts, people will not be prevented from going to the courts; the choice will be theirs. If the Minister takes my advice, as I hope he will, he will get rid of subsection (10), and then I know where local authority tenants will go. They will do it through the administrative practices of the local authority.

On Question, amendment negatived.

Clause 12 agreed to.

6.37 p.m.

Clause 13 [Interdict competent where spouses live together]:

The Earl of Selkirk

had given notice of his intention to move Amendment No. 50: Page 15, line 17, leave out from ("home") to end of line 18.

The noble Earl said: I am raising here the whole question whether arrest should automatically follow a matrimonial interdict. In the many and varied circumstances which arise, I suggest that the Bill takes too dictatorial a line. This is not a question of a wife being hit but of whether one is in breach of an interdict. If one is, then one can be arrested without warrant—

The Earl of Mansfield

I am sorry to interrupt my noble friend, but I think Amendment No. 50, to which he is speaking, was consequential on No. 26, which he has already withdrawn.

The Earl of Selkirk

I apologise to the Committee. I do not move Amendment No. 50.

Clause 13 agreed to.

Clause 14 [Attachment of powers of arrest to matrimonial interdicts.]:

The Earl of Mansfield moved Amendment No. 51:

Page 15, line 19, after ("shall") insert (", on the application of the applicant spouse,").

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

On Question, amendment agreed to.

The Earl of Selkirk moved Amendment No. 52: Page 15, line 19, leave out ("arrest") and insert ("detention in terms of section 2 of the Criminal Justice (Scotland) Act 1890").

The noble Earl said: I wonder whether the exclusive or almost obligatory use of arrest on interdict dealing with matrimonial matters is necessary; whether it is not too dictatorial and whether, being so dictatorial, it will not arouse antagonism. This is not a policy of being soft to people but a question of how best the provision can be enforced. This is putting a man who breaches an interdict in line with a common criminal, but the difference in this case is that there is no bail. What is required in many of these cases is a cooling-off period, and I believe that that could be done very well by detention.

When the Scottish Law Commission reported detention had not been invented. Indeed, strictly speaking it has not been invented yet, but I am told it will come into operation this summer. I believe detention should be given either as an alternative to arrest or preferably in place of it. In this case it would mean that a man would be detained, he would go to the police station for perhaps six hours of course, he could be arrested if he showed every inclination of doing some action which was clearly wrong—and at the end of that time it would be normal to release him if he promised to behave himself and appear before the sheriff on the next occasion. If the man is arrested, he will he kept locked up in the police station until the sheriff court meets, and then a procedure which is peculiar to the Bill will be adopted. I should have thought that it would be much easier to take the course laid down in the Criminal Justice (Scotland) Act, which provides for the man to be detained, and those who carry out the investigation can decide what should be done.

I fear that if the proposal as stated here is carried out, the impression will be given that it is unjust, and so the whole matter will be brought into disrepute. The approach should be more moderate in the first place; further powers can be used later, if necessary. I should be glad if the Minister will consider the matter. If he says that he will do so, I shall not move a number of other amendments which are connected with this proposal. I beg to move.

The Earl of Mansfield

I tell my noble friend at once that the Government are to reconsider the entire clause, because, as the Committee will appreciate, it poses a number of quite severe problems. It was inherent in the proposals of the Scottish Law Commission that a power of arrest should be attached to a matrimonial interdict, unless the non-applicant spouse could satisfy the court that that was unnecessary; and to that the Bill gives effect. My noble friend in his amendment seeks to remove the power of arrest attached to a matrimonial interdict, which could be exercised by the police in circumstances where a breach of interdict appears to have been committed. Under the amendment of my noble friend reliance would have to be placed on the police powers to detain in the context that a criminal offence has been committed, since that is the purpose of Section 2 of the Criminal Justice (Scotland) Act.

I think it wholly inappropriate that one should seek to draw into an arena of the civil law—which is particularly delicate as it affects the relationships between spouses—a provision of the criminal law that is designed specifically for purposes of detention and interrogation. As my noble friend might recall, that provision is hedged about with a number of safeguards, most of which were inserted in the Act by your Lordships' House because it realised that new, and what could be considered sweeping, powers were being taken by the police. I do not believe that it is appropriate to try to make use of those powers in order to help an angry, and probably male, spouse to "cool off"—to quote the term used by my noble friend.

We must have some power of detention—I use the phrase in a relatively neutral sense—because otherwise there would be no deterrent effect on the court's interdict. One must bear in mind that these matrimonial affairs blow up very quickly, and it is absolutely essential to give the courts, the police, or at any rate society, the power to deal with them as quickly as they blow up. That is one of the main points of the Bill.

I think that both my noble friend and I are uneasy about the period following the spouse's arrest, in which he is in custody. Under the present arrangements for the sitting of sheriff courts in Scotland, if, in the circumstances with which we are concerned, a person flushed with the intoxicating results of his pay packet, is arrested on a Friday, he will not appear before a sheriff on the Saturday or the Sunday, and if the Monday happens to be a Bank Holiday he will not appear on that day, either. So his first appearance before the sheriff will be a Tuesday. All of us are somewhat concerned about that period of time. If under the Bill the fiscal decides to take criminal proceedings against the husband, then in all probability the husband will be granted bail at the fiscal's discretion. But if the fiscal does not decide to take criminal proceedings, then in the circumstances that I have outlined the husband will not get bail. It is as obvious to the Government as it is to my noble friend that that is a matter which must be looked at, and we intend to do just that. We are to give further consideration to these points, and I very much hope that some form of sanction which will be effective, yet just, will emerge.

Lord Ross of Marnock

I am more than slightly worried because we are dealing with Clause 14 (relating to the power of arrest) whereas everything that has been said by the Minister of State seemed to apply to what will happen after the arrest, which is dealt with in Clause 15, which we have not yet reached. Is the Minister saying that he is to look at Clause 14 and Clause 15, or is he satisfied with Clause 14, and does his concern lie with what follows after arrest?—a matter which is not before us at the moment. All that is at present before us is Clause 14—indeed only the first line of the clause. I should like to know the position.

The Earl of Mansfield

My noble friend said that if I were able to satisfy him on the amendment that he moved—Amendment No. 52—he might not move a number of other amendments. I am very much hoping that he will not move Amendments Nos. 54, 56, 58 and—dare I suggest?—63 and 65, which would certainly lighten our labour. I perfectly appreciate that I have, as it were, discussed the effects on the citizen following his arrest, but I am sure my noble friend will agree that the series of amendments commencing with Amendment No. 52 flow on into the next clause of the Bill.

The Earl of Selkirk

I am grateful to the noble Earl. What he has said is perfectly correct. I had anticipated a series of events. It is not simply the question of the arrest, but also what happens afterwards with which I am concerned. I believe that in many cases such action is not necessary. We should never take too powerful a weapon in order to crush what is a small matter. I am very happy to hear that the noble Earl has this point in mind. The difficulty here is that the police cannot give bail. The man may take only one step inside the area that he is forbidden to enter, and then he finds that he is in prison for three days. That is the kind of thing that embitters people, and I feel that we must be very careful about it. I suggested a slightly more simple process, but I shall not press the matter this evening. I am grateful to the noble Earl for stating that he is willing to look at the point, and I hope that wisdom will go with his counsel. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.48 p.m.

The Earl of Mansfield moved Amendment No. 53:

Page 15, line 27, at end insert— ("(1A) A power of arrest attached to an interdict by virtue of subsection (1) above shall not have effect until such interdict is served on the non-applicant spouse, and such a power of arrest shall, unless previously recalled, cease to have effect upon the termination of the marriage.")

The noble Earl said: This amendment clarifies the timing of the effectiveness of the power of arrest and the fact that it ceases with the termination of the marriage, usually by divorce. It is thought desirable that the power of arrest should not become effective until the non-applicant spouse has been served with the interdict containing the power of arrest. That avoids the situation where the court considers the interdict in the absence of an allegedly violent husband and he finds himself liable to arrest for breach of interdict, of which he was unaware, when he returns to the matrimonial home. In most cases, he will know of the date of the court hearing, but sometimes—for example, where he has been out of the country—such a circumstance as I have mentioned could nevertheless arise.

The power of arrest, together with the interdict itself, ceases to have effect following divorce because it no longer relates to a matrimonial interdict. If the behaviour of the ex-husband towards his former wife, or their children, continues to cause her apprehension, she will have to seek a fresh, and non-matrimonial, interdict from the court, to which no power of arrest may be attached. Since they will no longer be related by marriage it is not considered necessary for the exceptional powers provided for in relation to matrimonial interdicts to continue to apply. The normal rules applying to interdicts between strangers would therefore apply. I beg to move.

On Question, amendment agreed to.

[Amendment No. 54 not moved.]

6.50 p.m.

Lord Ross of Marnock moved Amendment No. 55: Page 15, line 29, leave out ("may") and insert ("shall").

The noble Lord said: Here we are at the nub of the arrest and the draconian powers to which the noble Earl objects. There was a long argument within the report about the power of arrest and this question of the virtual merging of the civil law and the criminal law. On Second Reading I agreed (as did most people) with the Scottish Law Commission that we want to keep this out of the criminal courts as far as we can. But such was the gravity of the offences that had occurred in respect of the interdict on violent parents that it was felt in Scotland that we should take the power of arrest. That power of arrest is already there in England and Wales; it is not so in Scotland.

The mandatory element was there in relation to the power of arrest: the right to arrest, the power, shall be attached. Then when we read on we discover that the carrying through of it is left to the police. There is nothing mandatory there. In line 29 it says: … a constable may arrest without warrant if he has reasonable cause for suspecting that spouse of being in breach of the interdict". This is one of the troubles. As I understand it from my reading of the Commission's report and the evidence, in England and Wales (where they have this power and have discretion for the police) the police are most reluctant to intervene and arrest. But the person who suffers therefrom is the wife who is the subject of this violence; and the protection is removed.

I know that the noble Earl has been very sympathetic towards the loss of freedom for the individual. But I hope that he appreciates the counterbalance: that the individual loses his freedom initially because of the danger of injury, of violence affecting health and mental wellbeing, to a woman and probably a family. In view of the experience in England and Wales of the reluctance of the police to use their power, the Government should go the whole way and, instead of "may arrest", they should say "shall arrest". I think that probably it would be more suitable to the police. They would rather have an order to do something than a discretion—especially in cases of this kind, where it is not easy and where they would use that discretion not to intervene. And if they do intervene too late, then serious damage may be done.

I would suggest that having taken the mandatory power to attach a power of arrest then, where a police constable has reasonable cause for suspecting that a spouse is in breach of the interdict, he "shall" arrest, not "may" arrest. "May" is a very unsatisfactory word in this context. I suggest that "shall" would be far better and more reasonable from the point of view of the protection that we would suppose it to afford. I beg to move.

The Earl of Mansfield

The usual statutory language empowering constables to arrest without warrant is "may". Recent examples are in Sections 18 and 294 of the Criminal Procedure (Scotland) Act 1975 and Section 1(6) of the Criminal Justice (Scotland) Act 1980. In all instances, it says: A constable may arrest without warrant any person … and: A constable may take into custody without warrant …". I think the innuendo behind the noble Lord's remarks is that in some way a police officer, if given any discretion at all, will seek not to do his duty because (let us face it) matrimonial offences tend to be unpleasant and messy and police officers, who have the same feelings and susceptibilities as the rest of us, no doubt do not wish to get involved unless it is their plain duty so to do. I do not think that that is a sufficient reason for putting into this Bill no discretion at all. One can readily imagine situations where if a constable has no discretion it could cause hardship and injustice. Supposing there was an unintentional and trivial breach of an interdict, somebody who returns to the matrimonial home to collect urgently-needed belongings, not wishing to make a scene, not wishing in any way to impose upon his spouse and, as it were, is caught.

He may go to the matrimonial home when the non-applicant spouse is absent. He may try to do everything that he can not to exacerbate a situation which the court has taken cognisance of. Is the noble Lord suggesting that in that trivial case a constable is to have no discretion at all? That is what acceptance of this amendment would mean. Taking the Bill as it is at the moment, it could mean—because the fiscal would certainly not take criminal proceedings—that for a breach of interdict which could cause minimal harm and may possibly be even unintentional, a man might spend four days in jail without bail. I suggest to the Committee that in this particular instance it is proper and sensible to give police constables the usual and very limited discretion that they have whether to arrest somebody or not.

Lord Ross of Marnock

I almost had tears in my eyes when I heard about this trivial case. How did the noble Earl know it was trivial? How did he know the intent or purpose of the person going to the matrimonial home? Surely that is for the court to judge. I admit that "may" is an advance on the present position. But we must draw from the experience of others. And the experience of others in respect of this kind of case in England is a decided reluctance on the part of the police to use their power. They have the discretionary power implied in "may"; and they can arrest upon that.

This was discussed by the Law Commission when they drew up their report. It was with a certain measure of reluctance, but also with firmness that they said that they required this power of arrest. To my mind, if that is so, then whether we like it or not, we have to appreciate all that is involved and not start to withdraw the protections that we have, after reluctance, built up. The word "may" should really be changed to "shall". In Parliament I have argued long and often whether "may" and "shall" have the same meaning. Learned Solicitors General and Lord Advocates 30 years ago were telling us that it did not make any difference. I am still convinced that "shall" is a much more effective word than "may", and that we should make this change. I am sorry that the Government are not going to change it. For the moment, I shall rest my case on that.

The Earl of Mansfield

I know the noble Lord would not want to mislead the Committee. Paragraph 4, subparagraph 35, of the Scottish Law Commission report said in effect not that the police were reluctant to arrest but that the courts in England were reluctant to attach a power of arrest in any particular instance. That is a very different matter. If the noble Lord is going to consider his position between now and the next stage I am sure he will want to bear that in mind.

Lord Ross of Marnock

I shall bear all these things in mind. I shall read and re-read again the Law Commission's report. It has been my bedside reading for the past three weeks.

Amendment, by leave, withdrawn.

[Amendment Nos. 56 to 58 not moved.]

7.2 p.m.

The Earl of Mansfield moved Amendments Nos. 59 and 60: Page 15, line 33, leave out ("the solicitor acting for") Page 15, line 34, leave out (", messenger-at-arms or sheriff officer").

The noble Earl said: Amendments Nos. 59, 60 and 61 are intended to clarify the manner in which the police are to be notified of the existence of a power of arrest. It places the responsibility for doing so on the applicant spouse; the responsibility for the service of interdicts also normally rests with the applicant. The original Scottish Law Commission recommendation was for the messenger-at-arms or sheriff officer serving the interdict to deliver to the relevant chief constable the documents notifying the attachment of a power of arrest. This was on the basis that the same officer would be involved so that speed of notification and care that the interdict had already been served would be secured.

In practice, the same officer need not do both the service of the interdict and the notification of the power of arrest to the chief constable. It was therefore considered that the actions of a single solicitor might be equally effective. However, the present wording, which refers to a solicitor acting for the applicant spouse, messenger-at-arms and sheriff officer, may itself be confusing because it is not clear which of them has the primary responsibility.

Since it is usual for the applicant's solicitor to serve an interdict, it was thought desirable to delete the reference to the court officers. It is in any event open to the solicitor to employ them for the service of the interdict and police notification in this context. By the same token, since service must be done by a solicitor or a court officer, the reference to the applicant's solicitor was also considered to be superfluous. In practice, the applicant spouse will be reminded by his or her solicitor of the obligation to notify the chief constable of the power of arrest. The result of the amendments is considered entirely compatible with the thinking of the Scottish Law Commission in that the applicant spouse (through her solicitor) can ensure prompt notification to the chief constable and the non-applicant spouse can be sure that the sequence of events is such that the chief constable will only be informed after the power of arrest becomes effective. I beg to move

On Question, amendments agreed to.

The Earl of Mansfield moved Amendment No. 61: Page 15, line 36, leave out ("deliver") and insert ("ensure that there is delivered").

The noble Earl said: I have spoken to this amendment. I beg to move.

Lord Fraser of Tullybelton

I should like to welcome this amendment in principle. I suggest that the drafting is not entirely satisfactory. It provides that the applicant shall ensure that there is delivered to the chief constable the order. There is no sanction provided. An order on someone to ensure that something happens without any sanction is unsatisfactory and is apt to be disregarded. It would be much better, I suggest, if the wording were copied from Amendment No. 53 (which the Committee have agreed to) which provided that an interdict shall not have effect until it is served on the non-applicant spouse. The same provision could be copied here so that it shall not have effect until it has been intimated to the chief constable. In some way a sanction of that sort could be provided. I suggest that might be considered.

The Earl of Mansfield

I am obliged to the noble and learned Lord. I shall consider the matter before the next stage.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 62:

Page 16, line 4, leave out subsection (4) and insert— (" (4) Where any matrimonial interdict to which, by virtue of subsection (1) above, there is attached a power of arrest is varied or recalled, the spouse who applied for the variation or recall shall ensure that there is delivered—

  1. (a) to the chief constable of the police area in which the matrimonial home is situated; and
  2. (b) if the applicant spouse (within the meaning of subsection (5) below) resides in another police area, to the chief constable of that other police area,
a copy of the application for variation or recall and of the interlocutor granting the variation or recall.").

The noble Earl said: This amendment replaces subsection (4) with a fuller statement of the action which has to be taken by the spouse who applied for the variation or recall of the interdict. It removes the possibility that the subsection could be interpreted as requiring a husband (as the usual non-applicant spouse) having to serve a recall on himself. The amendment distinguishes the fact that a different spouse is likely to be the applicant in subsections (3) and (4). I beg to move.

Lord Fraser of Tullybelton

Exactly the same point about ensuring arises here. It is not so easy to provide the sanction here but it ought to be possible in some way.

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Procedure following arrest]:

[Amendment No. 63 not moved.]

The Earl of Mansfield moved Amendment No. 64: Page 16, line 35, leave out ("(1)") and insert ("(2)").

The noble Earl said: This amendment corrects an erroneous reference to subsection (1) when in fact the procurator fiscal brings the arrested spouse before the sheriff under subsection (2). I beg to move.

On Question, amendment agreed to.

[Amendment No. 65 not moved.]

The Earl of Mansfield moved Amendment No. 66: Page 17, line 14, leave out ("and").

The noble Earl said: This is a purely drafting amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 67: Page 17, line 20, at end insert ("or any child of the family").

The noble Earl said: This amendment provides that the sheriff in reaching a decision can take account of the risk of violence against a child as grounds for further detention as well as against the applicant spouse. This secures a consistent approach since Clause 4(2) provides that exclusion orders may be granted for the protection of the applicant (spouse) or any child of the family. A matrimonial interdict to which a power of arrest may be attached may prohibit any conduct towards a spouse or any child of the family. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 68: Page 17, line 22, leave out ("but").

The noble Earl said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 69: Page 17, line 23, at beginning insert ("where the non-applicant spouse has been in custody for forty-eight hours; or").

The noble Lord said: I move this amendment because I am concerned about the inequality of treatment depending on the day that a person is arrested. The Minister of State himself at an earlier stage drew attention to the seeming unfairness. Many of these cases will happen on a Friday night and they will not be dealt with, at the earliest, before Monday morning. I felt that there could be unfairness in this generalised ruling in respect of the further period not exceeding two days. Somebody may have been there for virtually four days.

I use the opportunity of this amendment to ask the noble Lord whether he is going to look at the whole procedure laid down in Clause 15. I got the impression earlier on that he was going to do that. He will remember the suggestion from the Law Commission was not that this should be inserted in this form but that it should be left to the rules of the court. I think that was in paragraphs 4.10 and 4.11 of their report. If we are going to write it down then we must be fair, and so I should like to know exactly what the noble Earl intends to do to ensure fairness of treatment as between those already in detention or those who have been arrested and detained for three or four days, as compared with the others. I beg to move.

The Earl of Mansfield

What I undertook to do very simply and briefly was really in relation to two matters. The first was in relation to whatever sanction is going to flow from a breach of an interdict, which at the moment is dealt with under Clause 14 and which my noble friend Lord Selkirk was concerned about, and in respect of which he had tabled a series of amendments. The other matter, which we discussed shortly, was what happens when someone has been taken into custody, how long they should be in custody before they appear in front of a court or how otherwise they should be dealt with. This is Clause 15, and I have undertaken to consider what is to happen to someone in these circumstances when he has been taken into custody on a breach of an interdict. That I will do, and I hope it will satisfy the noble Lord, Lord Ross.

Lord Ross of Marnock

Since we are going to have another look at this I will gladly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15, as amended, agreed to.

Clause 16 [Occupancy rights of cohabiting couples]:

The Earl of Mansfield moved Amendment No. 70: Page 17, line 36, leave out ("satisfied") and insert ("it appears").

The noble Earl said: I have in effect spoken to this. I beg to move.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 71: Page 17, line 37, after ("house") insert ("and they have been cohabiting for at least three years").

The noble Lord said: Amendments Nos. 71 and 72 deal virtually with the same point, I think. What I am concerned about is how you construe a person as having been cohabiting. I put in the provision that they had been cohabiting for at least three years. What I omitted to take note of is the fact that one of the proofs of fertile cohabitation is the presence of children, and of course that can take place long before three years. So I was attracted by the reference in the amendment of the noble Earl, Lord Selkirk, to the fact that if there were children then that should in itself be definitive, and I am prepared to bow to that when it comes to reconsideration. However, I am not so sure about other things. I feel, too, that in relation to the grant of occupancy by the court a period not exceeding three months is just not right. If we are going to construe these people as having a stable relationship and liken it to husband and wife, I think we have to leave it to the discretion of the courts to apply exactly the same rules to the (I do not know what the name would be) "non-applicant" or to the "non-titled cohabitee". We have not got this in yet, have we?

The Earl of Mansfield

"Non-titled partner".

Lord Ross of Marnock

We must think of one or two more. We must not have the thing too clear, you know. So I am concerned with two points: first, to be able to establish that there has been, by length of time, some stable arrangement; and, secondly, having established that, then the same rights as are given in subsection (1) of the clause to the non-titled wife should be given to the non-titled partner, and not just this question of three months. I think that would be most unfair. I beg to move.

The Earl of Selkirk

I think we are up against a problem of trying to define "cohabitation", and I do not feel terribly competent to say what exactly should be laid down. I fully agree with the noble Lord that if there is a child of the union obviously that applies, but I think really the test is the word "stable". But how do you define that word? One has to remember that it could be grossly and superbly misused. You take a girl and cohabit with her; then eventually you hit her in the face. She excludes you, and you leave her permanently in the house, indefinitely. Then you start off with another girl and do the same thing there. This raises possibilities for those who want to misuse the thing to a really quite startling extent.

I have suggested in my amendment that there should be a period of stable relationship of three months. That may not seem too long, but the test is the word "stable". I think there must be some definition here, otherwise the grossest misuse could be made of this sort of thing, which would not be right. I shall not do more than refer to my amendment here, in which I put down that cohabiting means "living together where there is a child." Secondly, as regards a stable relationship, what creates a stable relationship? I said, more modestly, three months. With respect, I think three years is too long because you can have two or three children in that period; and so I would have thought three to six months would be a pretty reasonable period initially. I will not say any more for the moment.

The Earl of Mansfield

I will deal first with Amendment No. 71, under which the noble Lord, Lord Ross, seeks, as it were, to ensure that couples are not to be said to have been cohabiting within the meaning of this Bill unless they have been doing so for at least three years. Therefore, to him, "cohabiting is defined by the length of the period they have been living together.

Lord Ross of Marnock

I was thinking of the question of occupancy, because that is what is at stake—occupancy of the house. We remember the noble Earl's own Act, which was to give secure tenancy. Within that secure tenancy is included purchasing a house, and I think three years was the time laid down by the Government in respect of a local authority house.

The Earl of Mansfield

Yes. It is somewhat obscure whether the noble Lord means in one house, in a number of houses, in a lodging-house, in a tent or whatever. For myself—and I am afraid this is the lawyer in me coming out again—I think the courts are supremely able to estimate whether the conduct of two people is such that they can be held to be cohabiting. I remember that when I used to draft divorce petitions I used to say "living as if man and wife", and that seems to me a perfectly reasonable way of deciding whether or not people are cohabiting—whether they are living together as man and wife.

Then one has to ask the question whether it is desirable that there should be some fetter on the court's discretion and should say that unless they have been living together as if man and wife for a certain period then the rights conferred by this Bill shall not arise. I personally believe that the noble Lord's period and his way of looking at this is much too narrow. For instance, if they had been living together for less than three years they could well have had twins. In every sense, other than the fact that they had not been living together for three years, they would be in a position where either one of them might well want to see the relief which this Bill will give. So I think that the noble Lord's idea is, at once, simplistic and could lead to unfairness.

I now come to the next amendment in which he wishes to leave out the phrase "not exceeding 3 months". In this instance, he believes that there is too much of a fetter on a court. I am sure he realises that, after the initial period of three months, applicants can go back to the court as many times as they like and can get as many periods as they can persuade a court to give them, each one of them not exceeding six months. So, in fact, this could become a permanency. I do not see that a court needs to be fettered in any way, although one has to acknowledge that in this type of case occupancy rights for people who are not married, and who yet have split up, are unlikely to be needed for more than a temporary period. That is why the clause is so drafted that the applicant can come back after the initial three months for periods not exceeding six months. So, certainly, I should be resistant to that amendment, too.

I now come to the amendments of my noble friend Lord Selkirk. He puts in a test not so much of time as of a child of the liaison. People could be living together for years and years and be either unable or unwilling to have children. In that instance, are they not to be said to be a cohabiting couple, and is one or other spouse not be be entitled to take advantage of the provisions of this Bill? That seems to me to be quite unfair.

Lastly, my noble friend says "All right, they must have had a stable relationship for not less than three months prior to the making of the application for the order." It is a funny kind of relationship which is going to be stable for three months, and yet end by such violence that one or other of them comes forward to seek the relief of the court in such a way. One would have supposed that, if things were coming to that pass, the relationship would have been very far from stable well before the three months prior to the making of the application for the order.

There are two elements. I say at once that I will take this away and reconsider it, because it is a difficult point, and I am grateful to both noble Lords for their amendments and for the different ways in which they think that the problem should be approached. First, there is a need to assist the court in deciding when a couple are cohabiting, I do not think one can lay it down too closely or too narrowly by statute, but it may well be that a court needs assistance to make up its mind.

Secondly, what occupancy rights does one give to cohabiting couples, if there is to be a more narrow definition of "cohabiting couples" than there is at the moment? It seems to me that, somehow, we shall have to try to steer a middle course between both of these difficulties, so I shall take this away and ponder over it between now and the next stage of the Bill. I think that my noble friend's Amendment No. 77 is not really in point to what this debate has been about, so I shall rest my argument there.

Lord Ross of Marnock

I do not propose to go any further with this amendment. I think the Minister appreciates the problem and the difficulties that the courts will be in, if we leave the matter entirely to them. They are the people who will be blamed or otherwise. But I appreciate the fact that the noble Earl will now be looking at practically the whole of this Bill in order to improve it. I certainly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

The Earl of Mansfield moved Amendment No. 73: Page 18, line 5, after ("modifications") insert ("(a)").

The noble Earl said: Perhaps I may speak to Amendments Nos. 73 and 74. These amendments are intended to make it clear that the protection provided by the Bill to cohabiting couples should also extend to any children living with the couple, in the same way as it does to the children of a marriage. The amendment also provides that the subsidiary and consequential rights in Clause 2 shall, as appropriate, be available to one of the parties if he or she is exercising an occupancy right. The Clause 2 rights are necessary to make the occupancy right effective.

The draft Bill had not extended the rights of cohabiting couples in this way, because the Law Commission's recommendation was for a maximum duration of any occupancy rights of six months. In such a temporary situation, it was not thought that these further rights were needed. The present Bill permits greater flexibility in the form of a strictly indefinite number of further periods of six months. Since this will mean that the occupancy rights could remain for a matter of years rather than months, it is thought to be necessary for the partner occupying their house to have the consequential rights provided in Clause 2. Otherwise, his or her occupation would be unreasonably spartan; for example, if furniture on hire purchase was removed from the house because the other partner had defaulted on the payments. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 74:

Page 18, line 6, at end insert— ("and (b) have effect in relation to any child of the cohabiting couple as they have effect in relation to a child of the family— section 2").

The noble Earl said: I beg to move.

Lord Ross of Marnock

To the extent that this amendment comprehends and accepts Amendment No. 75, I welcome it.

On Question, amendment agreed to.

[Amendment No. 75 not moved.]

The Earl of Selkirk moved Amendment No. 76:

Page 18, line 26, at end insert— (""cohabiting couple" means

  1. (i) a man and a woman who are living together where there is a child of the liaison; or
  2. (ii) a man and a woman who are living together in a stable relationship and have been so living for a 1124 period of not less than three months prior to the making of the application for the order.").

The noble Earl said: In moving this amendment, I should like to thank my noble friend for what he said. I think that he is taking a very sensible line towards something to which there is no simple answer. The point is that, according to the amendment which I have put down, children and a stable union may create an obligation. If you marry someone, you immediately enter into an obligation. When you have someone living with you for a week or so, you do not enter into an obligation; or, at least, it is on a very modified scale. But, eventually, if the relationship continues for long enough, a sense of obligation arises. That is what my noble friend has to solve. At what point does an association change from an entertainment into an obligation? I am not certain about this, but I have made a suggestion here. I admit that it is a pure cockshy and I leave it at that. I beg to move.

The Earl of Mansfield

I am obliged to my noble friend. I am not sure whether his description of his effort is entirely appropriate for couples who are not married. But, certainly, I will go into the matter before the next stage.

Amendment, by leave, withdrawn.

Clause 16, as amended, agreed to.

Clauses 17 to 19 agreed to.

Clause 20 [Interpretation]:

7.30 p.m.

The Earl of Selkirk moved Amendment No. 77: Page 19, line 27, after ("any") insert ("dependent").

The noble Earl said: It seems to me that in this context a dependent child should be included, who may be above what we usually consider to be the age of a child, and may even be 25 or more. I suggest that the term "dependent child" would be better than "child of the family". I beg to move.

The Earl of Mansfield

If this amendment were accepted the court would not be able to consider the needs and interests of a non-dependent child—that is to say, a child over the age of 18 who is living at home but working or attending university. This lack of discretion would extend to most of the orders which we have been dealing with: occupancy rights orders, exclusion orders, orders dispensing with the consent of the non-entitled spouse to a dealing by the titled spouse relating to the matrimonial home, an order transferring the tenancy of the matrimonial home, and and order delaying the sale of a jointly owned matrimonial home.

Perhaps more seriously, a child who was in care in a residential establishment but who could be returned home if the violent spouse were to be excluded would not be regarded as dependent if the amendment were to be accepted. So this would be contrary to the views of the Scottish Law Commission.

Perhaps on reflection my noble friend will agree that his amendment is not so desirable as he first thought.

The Earl of Selkirk

A child who is strong enough to go to university is probably quite capable of dealing with an irate father. But what about a genuinely dependent child? He may be defective in some respects, or incapable of something. One is limiting this entirely to the case of a child who is included in the technical term "child". It seems to me that this requires extension. It should be extended to certain young people who have grown up but who are incapable of looking after themselves. They are particularly defenceless people when there is a violent husband.

May I ask the noble Earl to look at that point. I understand the point which he is making, but what is much more important is to include children who are genuinely dependent but who technically are above the age of childhood. If the noble Earl would care to do that I should be grateful and would withdraw the amendment.

The Earl of Mansfield

I will certainly look at the definition.

Amendment, by leave, withdrawn.

Lord Drumalbyn moved Amendment No. 78:

Page 19, line 38, after ("include") insert—

  1. ("(i) any article reasonably required by either spouse in connection with his employment, profession, trade, business or calling, or his personal leisure or recreational activities; or
  2. (ii)")

The noble Lord said: The purpose of the amendment is to ensure that a spouse who is excluded from the matrimonial home by order of the court is entitled to retain or to recover possession of anything which forms part of the tools of his or her trade or anything which he or she uses in connection with his or her own personal leisure or recreational activities.

I looked through the Bill to see whether this point is already covered. I think there is at least a doubt about it. That is why I have put down the amendment. Clause 3(2) allows the court to make an order in relation to possession or use in the matrimonial home of furniture and plenishings. Subsection (4) of the same clause enables the court on the application of either spouse to make an interim order in relation to furniture and plenishings and also personal effects. Subsection (3) of the same clause requires the court to take into account the respective needs of the spouses—this is linked with financial needs and may therefore be very restricted—and the extent to which the matrimonial home is used in connection with a trade, business or profession of either spouse.

It seems that subsection (3)(d) envisages only the matrimonial home and the furniture and plenishings. I am not sure what is meant by the phrase "personal effects". Perhaps the noble Earl can tell me. It probably covers a shooting gun because that is registered, but does it cover a fishing rod or a billiard table? Would it cover a collection of coins or butterflies? Would it cover a treasured collection of gramophone records? Would it cover a sewing machine? I cannot see that any of these things are furniture or plenishings and I am not sure that they are personal effects. I do not think that is the normal meaning of "personal effects".

But there are articles which can be put either in the furniture class, or in the leisure activities class, or in the tools of the trade class. To some, a television set is a source of entertainment. To others, it is something only to be used for obtaining information in connection with one's trade or calling—for example, politics. To some a piano is an article of furniture, possibly to be surmounted with an aspidistra. To others, it may be a source of joy as a leisure activity, though it is probably less of a joy to others. To a professional musician who teaches music or who performs at concerts and the like it may be an essential tool of his trade. Therefore it is not furniture; nor is it personal effects. Things like typewriters may be one or the other.

May I ask my noble friend to consider this point very carefully. All I am anxious to do is to make certain that people concerned in these kinds of troubles do not have their troubles enhanced by being deprived of things which are part of their lives. It is in those terms that I commend this amendment and beg to move.

The Earl of Mansfield

If my noble friend's remarks emphasise anything, it is that we are utterly dependent upon our courts to exercise a sensible discretion if such a situation should arise as the noble Lord has postulated. One cannot, by means of a statute or even an enormous schedule setting out typewriters and aspidistras, try to legislate between the parties.

The definition of "furniture and plenishings" provides that only an article which is reasonably necessary to enable the home to be used as a family residence is included. If an article serves a reasonably necessary domestic use, it is surely right that the full enjoyment of the occupancy right should permit it to be regarded as part of the furniture and plenishings of the matrimonial home, notwithstanding its business or recreational character.

As I have said, I think that the courts can be relied upon to exercise a sensible discretion. But the matter goes slightly further. Under Clause 3(3)(d), before the court makes any order giving the possession or use of furniture and plenishings it must have regard to all the circumstances of the case, including the extent (if any) to which the matrimonial home is used in connection with a trade, business or profession of either spouse". That wording is also reflected in the definition of a cohabiting couple's house in Clause 18(4). So I think the difficulty which is foreseen by my noble friend is perhaps more apparent than real.

Lord Drumalbyn

I wish it were more apparent than real. My noble friend seems to me to be satisfied that an amendment of this kind—I do not say this amendment—is not necessary. I am not sure that he has completely satisfied me upon that point and I hope that he will look at it again. The courts can only make a division of goods either on the basis of their own judgment of what is necessary to each of the parties and so on, or else according to the terms laid down in the Bill. My amendment shows that whatever you do the judgment of the courts will be necessary, but I doubt whether they are given enough guidance as to how to make this allocation. I should be grateful if my noble friend would look again at this point just to satisfy himself that there is sufficient guidance for the courts to make not only a sensible allocation but an allocation that they are permitted to make by the wording of the Bill.

The Earl of Selkirk

May I just point out that after all if a person goes bankrupt the tools of his trade cannot be taken away from him. Surely this should be perfectly specific, whatever they may happen to be.

The Earl of Mansfield

I cannot see the difficulties which my noble friend Lord Drumalbyn, in particular, seems to envisage but I will certainly look at it again in order to see if some difficulties are lurking.

Lord Drumalbyn

I am much obliged. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.40 p.m.

The Earl of Mansfield moved Amendment No. 79: Page 19, line 41, leave out (", subject to section 6(2) of this Act,").

The noble Earl said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Drumalbyn moved Amendment No. 80: Page 20, line 2, leave out ("and usually occupied with").

The noble Lord said: This fills in the definition of a matrimonial home which lists the various things which are or have become, provided or made available by one or both of the spouses as, or has become, a family residence and includes any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of the house", et cetera. I should like to ask first whether the words "and usually occupied with" are intended to relate to the particular building in question or whether they are related to the sort of building which is usually occupied with that sort of residence. I am not quite sure what it is, and it does make a difference.

Secondly, I am worried about the terms, especially as they follow the words or other ground or building attached to and usually occupied with". Does that mean that it is physically attached? Here, again, I have an interest in music and I remember very well a man who retired to live in a very small house which would not accommodate his grand piano, so he built what I think is called a Colt house outside which, in the unlikely event of that marriage breaking down, could be removed and set up elsewhere. I am doubtful whether the words are necessary at all; that is why I tabled this amendment. But I think certainly there must be circumstances in which it would be legitimate to remove a movable building where it was used particularly by the person who was losing occupancy of the house. I beg to move.

The Earl of Mansfield

One would hope that the cohabiting couple envisaged by my noble friend would invest in a caravan or a houseboat rather than try to detach their Colt house from the realty, but I suppose all things can happen. The words "and usually occupied with", which I may say is exactly the wording used for a dwelling-house in Section 8(6) of the Succession (Scotland) Act, relates to the building and not generally, so to speak. The type of situation which is envisaged in this part of the definition is where there is an outbuilding which perhaps the wife or occupying spouse uses, perhaps to keep her deep freeze or her washing machine in, and in this instance it will be up to the court to decide whether or not such a building is part of the matrimonial home. I do not know that I can take the matter very much further than that.

If this amendment were agreed to it could widen the definition so that any garden or other ground or building attached to or otherwise required for the amenity, and so on, would then become the test as opposed to the slightly more restricted wording which has been used. I doubt whether I have satisfied my noble friend, but I live in hope.

Lord Drumalbyn

I think the noble Earl has gone a long way towards satisfying me. I am not all that difficult to satisfy. But it seems to me that there are buildings which do not necessarily go with the house. They go with one of the two people in the house and if the building can be removed it would be quite a good thing for a specific provision to be made for it to be removed. What about a workshed outside? That can be removed. These are things to which people attach the very greatest importance. The noble Lord, Lord Ross, may not attach much importance to these things, but people do attach a lot of importance to them and they will even dismantle greenhouses. These things play a very large part in the lives of the people concerned. However, I think on this occasion the noble Earl has satisfied me, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20, as amended, agreed to.

Clause 21 [Short title, commencement and extent]:

Lord Ross of Marnock moved Amendment No. 81: Page 20, line 19, after ("day") insert ("not later than 3 months after the date of passing of this Act").

The noble Lord said: This is the last amendment on the Marshalled List and I think we have done pretty well, bearing in mind the importance of what we have been dealing with. I am very glad that the noble Lord who has just spoken was not here earlier or my presence at a very important international gathering in Glasgow tomorrow might have been imperilled—Hampden Park.

Lord Drumalbyn

I have been here for most of the time; I was away for just over half an hour.

Lord Ross of Marnock

Yes, the noble Lord was here but not heard, we are glad to say.

This Bill has been welcomed by most people. I think on Second Reading I suggested that it must break some record because here we have a Law Commission Report in, I think, July of last year and it looks as though within the year it will become law and we have certainly done our part today. I want to see it not only go on to the statute book but actually come into operation. My amendment is this. Whereas at the moment under Clause 21 it is left to the Secretary of State to decide on an appointed day after the passing of the Act when it will come into operation, I suggest that it should not be later than 3 months after the date of passing of this Act. I think that gives reasonable time for the Government to make what administrative arrangements have to be made.

I say that, bearing in mind that we have already waited a fair length of time to get this legislation and certainly the people most seriously affected by it want it to be brought into force as quickly as possible. I am also conscious of the fact that in 1920 the Scottish Education Act empowered the Secretary of State on an appointed day to declare when the school-leaving age would be raised to 15. It was not until 1946 that that was done—a matter of 26 years. We do not want anything like that to happen here. I hope that the Government will see there their way to accepting this amendment, but, if not, I am sure they will appreciate the reason why I put it down. We believe it is a piece of worthwhile legislation, and we want it introduced and operated as quickly as possible—not later than 3 months after the date of the passing of the Act.

The Earl of Mansfield

There certainly has been no delay in the introduction of this Bill. The Commons only ordered the report of the Law Commission to be printed in July of last year and we are already at Committee stage on the result of the Bill. Bearing in mind the dust that some of these reports gather, it is pretty good going.

Some of the provisions in the Bill will have a considerable effect on conveyancing practice and it is important that persons and organisations such as solicitors and building societies, pay regard to their current practices and if necessary adapt them, and The Law Society must be given time to advise its members. It will also be necessary to make rules of court in relation to certain provisions. Sheriff clerks will have to be advised of the implications of the new legislation for court procedure, and the police, too, will have to look to their practices. It would be detrimental to everybody if the Bill were to be brought into operation before the proper arrangements could be made. I am very much in sympathy with what the noble Lord, Lord Ross of Marnock, has said, and with the spirit behind this amendment. But while I can undertake that the Government will take steps to ensure that the provisions of the Bill are brought into effect promptly once it has received the Royal Assent, I cannot commit the Government to a specific time period and certainly not one so short as three months.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

House resumed: Bill reported with amendments.

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