HL Deb 22 December 1982 vol 437 cc1069-72

11.27 a.m.

Lord Lyell rose to move, That the regulations laid before the House on 1st December 1982 be approved.

The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The regulations provide that legal aid will not be available for divorce proceedings which are or could be initiated under what has come to be known as the Cowie procedure. Legal advice and assistance will be available instead, if sought by the parties involved in divorce proceedings. The Cowie procedure will be introduced into the Court of Session on 11th January 1983 by the Act of Sederunt (Rules of Court Amendment No. 6) (Simplified Divorce Procedure) 1982 and will apply to those undefended divorce actions on the grounds of non-cohabitation for two or five years, where there are no children of the marriage under 16 years of age, where no order for financial provision is sought and neither party suffers from mental disorder.

The new procedure is intended to be simple enough to be genuinely "do it yourself so that individuals will be able to seek a divorce without necessarily needing the professional advice of a lawyer. Nevertheless, should there be any uncertainty about the operation of the new procedure, or doubt about the questions to be answered on the various forms, a solicitor may be consulted under the Legal Advice and Assistance Scheme.

The removal of legal aid from actions in the Cowie category will have among its principal benefits the elimination of the need for an often time-consuming and costly assessment of the applicant's financial means by the Department of Health and Social Security. The Scottish Association of Citizens' Advice Bureaux has been involved in the preparation of an explanatory leaflet on the procedure. Both the leaflet and application forms will be widely available through sheriff courts and citizens' advice bureaux as well as in the Court of Session. Legal aid will, of course, continue to be available for all other categories of divorce actions in the usual way. It is not thought necessary to prescribe a higher limit for advice and assistance in connection with Cowie divorce. This possibility was given careful consideration. However, after consulting the Legal Aid Central Committee of the Law Society of Scotland, we decided against such a course. The committee considered that such a provision was unnecessary, and was indeed likely to lead to confusion, administrative problems and needless expense to the legal aid fund. It is, however, intended to monitor the position and if it appears administratively desirable to prescribe a higher limit, further regulations will be made.

The regulations before your Lordships represent a sensible measure to complement the Act of Sederunt so that the savings which the new procedure will bring to divorcing couples may also benefit the Legal Aid Fund. My Lords, I beg to commend these regulations and to move the Motion in my name.

Moved, That the regulations laid before the House on 1st December 1982 be approved.—(Lord Lyell.)

11.30 a.m.

Lord Mishcon

My Lords, I am sure that the House will be indebted to the noble Lord, Lord Lyell, for his explanation of these regulations and for the familiar way in which he uttered the names that apply to Scots law and which are not so familiar to many of your Lordships. He showed a familiarity with them which is to be praised, although I wonder whether it really lends towards the memory of any individual that his name should be attached to a divorce. I wonder whether Scotland will have second thoughts about the idea of a Cowie divorce, which means that one Scots lady will presumably say to another: "Did you obtain a Cowie divorce or a non-Cowie divorce?"

Speaking generally, it obviously is sensible that the Scottish legal aid regulations coincide in regard to simple divorce matters with those that are applicable in the rest of the United Kingdom. The only observation that one would make—I think generally not only in regard to legal aid regulations in Scotland, but throughout the United Kingdom—is that there does not seem to be enough provision made for a conciliation procedure where legal aid might be applicable. This is essential. This is something which I think is a defect in Scotland as well as in the rest of the United Kingdom. Many lawyers who are skilled in the art of advising people on a human basis, as well as on a legal basis, would like to have the opportunity of seeing whether on given facts there is a chance of reconciliation—mainly, as your Lordships know, for the benefit of the children as well as obviously for the parties concerned.

So I wonder whether thought can be given in the future—it obviously cannot be incorporated in these regulations, but it is an opportunity for mentioning this point—to have another look at the whole way in which our family law is dealt with in the divorce courts to consider proposals that I know that the noble and learned Lord the Lord Chancellor has for one court to deal with these matters in the United Kingdom. Scotland I think will also want to look at this. Also, can there be thoughts as to whether there could be, with legal aid applicable, an informal conciliation procedure where parties can go and have informal talks to see whether a reconciliation is not, in all the circumstances, sensible and a divorce can be avoided? Apart from this, I have nothing more to say in regard to these specific regulations.

Lord Lyell

My Lords, we are very grateful for the kindly comments from the noble Lord, Lord Mishcon, on the somewhat complicated name of the Act of Sederunt. We hope that the name of Cowie will not be attached in any unpleasant way to the thoughts of divorcing couples. The name of Cowie might well attach itself to the thoughts of compassion and possible reconciliation, which the noble Lord mentioned in his typical fashion. We are, after all, discussing rather sad events should they occur in the lives of any of us—possible divorce.

The noble Lord mentioned the possibility of reconciliation. He also drew attention to the possible position of children in divorce procedures. The noble Lord no doubt will have noticed in the regulations that a schedule is attached which is called Form 19A. It refers to "Part I" and "Part I continued"—it is rather like one of these hideous application forms that we have to fill in for passports, driving licences, and so on. Some of the clearer aspects in this form are concerned with reconciliation. It asks quite clearly in paragraph (6) of Part I of this form, which will under the Cowie procedures be explained, if necessary, to the parties by a solicitor, as follows: Is there any reasonable prospect of reconciliation with your husband or wife? One is asked to strike out, "Yes" or, "No".

In the second part of paragraph 6 it is asked: Do you consider that the marriage has broken down irretrievably? Answer, 'Yes' or, 'No' ". I understand that this has to be completed by both prospective partners or ex-partners, so at least we have gone part of the way, we hope, to meet the possibility of reconciliation and not bring in too hasty action in divorces of this nature.

Also in paragraph 9 of Part I we find another question which is simple enough: Are there any children of the marriage under the age of 16? One is asked to reply, "Yes" or. "No". I stressed in the four main points which would have to be met in order to obtain a simplified divorce under this procedure which I have outlined that, first of all, there has to be non-cohabitation for two or possibly five years. Secondly—and I am sure that the noble Lord, Lord Mishcon, will accept this—there must be no children of the marriage under 16 years of age. If there are children then the Cowie procedures would not necessarily apply. They might do so but, as I understand it, if there are children under 16 years of age, I do not believe that these procedures would necessarily be adopted. If I am wrong, I shall inform the noble Lord. He will appreciate that with the Christmas and New Year break it may be a little while before I am able to reply, if that is necessary.

I have further information on why there is no provision for conciliation as opposed to reconciliation which I was mentioning in paragraph 6. The noble Lord will be interested to know—and I am sure that your Lordships will be interested to know, if I may set this out briefly—that a working party which was set up by the noble and learned Lord the Lord Chancellor is indeed considering the role that conciliation might be given in future court procedures. As your Lordships will appreciate, Scotland will be closely interested in the recommendations of this working party. A conciliation scheme is to be set up shortly in Edinburgh with financial assistance from the Government. I hope that will go some way towards satisfying what I believe are very justified fears which have been raised by the noble Lord, Lord Mishcon. We are very grateful to him for the care and the courtesy which he has extended to us in considering the sometimes rather complicated regulations today.

On Question, Motion agreed to.