HL Deb 22 February 1982 vol 427 cc783-94

5.35 p.m.

Lord Lloyd of Kilgerran

My Lords, I beg to move that this Bill be now read a second time The objective of this Bill is to enable certain courts to consider applications for leave for a marriage to take place between step-parents and their step-children, and for connected purposes. I think it is accepted that the present procedures for enabling step-parents to be married to their step-children are clumsy, expensive and inadequate in the social conditions in which we find ourselves.

As your Lordships know, the procedure at present is that the applications must be made through both Houses of Parliament by means of a Personal Bill. It is about 18 months ago—indeed it was on 22nd May 1980—that I had the privilege to present to your Lordships a Personal Bill on behalf of a Mr. Berry and his step-daughter, Mrs. Ward, for a dispensation of Parliament to enable them to get married. Mr. Berry and Mrs. Ward were of almost equal age, and in that case Mrs. Ward, the step-daughter, had become the step-daughter when she was a married woman and away from home.

I do not propose to go into the details of the case, but a sympathetic hearing was given to me by your Lordships and this Personal Bill, at great expense to the parties—and a great embarrassment, in view of the procedures—passed through both Houses of Parliament and therefore a dispensation was given to them under the procedures which at present are available only through Parliament. There was strong support among your Lordships for the feeling that the case of Mr. Berry and Mrs. Ward was one of the most deserving cases that could come before your Lordships. But with the support that this Personal Bill had, there echoed throughout the debate statements that this was a cumbersome and unsatisfactory procedure and should be modified somehow or other. It is my submission to your Lordships that a reference to applications of this kind should be made to our courts—the High Court, the family court or the county court—so that the judges of our country could deal with these matters.

May I remind your Lordships that divorce cases used to be the subject of Personal Bills passing through both Houses of Parliament. That was the position at the end of the last century, but now of course social progress, if that is the right word, enables the courts to deal with these matters of divorce in a far more expeditious, satisfactory and, if I may say so, just way. May I refer to what was said during the passage of the Berry-Ward Personal Bill by one or two of your Lordships? The right reverend Prelate the then Bishop of London said this at col. 1046 of Hansard for 22nd May, 1980: He was strongly in support of the Personal Bill and thought that it was a very deserving case. He said: … I see no reason why we should not at some appropriate time introduce legislation to make it easier, in such cases as that of Mr. Berry and Mrs. Ward, to be permitted legally to marry, without requiring recourse to such a laborious and expensive process as that of promoting a Personal Bill. I would think that they have been put to much inconvenience, anxiety and cost, in order to bring their desire for marriage before your Lordships' House". I should have thought that it should be possible, in such exceptional cases, for the law to provide machinery whereby such a marriage could be permitted without, necessarily, recourse to Parliament". He went on to mention that such is the procedure in New Zealand that applications for dispensation in regard to affinity could be dealt with by the courts in New Zealand. He continued: … I cannot believe that it would be beyond the wit of those learned in the law to devise some way by which persons in a similar situation to that of Mr. Berry and Mrs. Ward could be given permission to marry, without having recourse to Parliament". The noble and learned Lord the Lord Chancellor in a brilliant speech supported strongly the Personal Bill that I was introducing. Your Lordships may remember his brilliant account of the historical background of the development of the canon law, having regard to the marital complications of King Henry VIII. As the Lord Chancellor concluded, he said: … after the Reformation the power of dispensation with regard to the law of affinity in marriage which formerly existed in the Pope fell to Parliament, the Queen in Parliament, to exercise". [Col. 1059.] He said that that was an unsatisfactory procedure.

I ask leave to quote his further words at col. 1059, when he said: But I never thought and do not think now that there ought not to be a cheap, easy and reasonable way of granting a dispensation more convenient than that upon which we are now currently engaged. I do not altogether think that the courts themselves would like to treat such an issue as justiciable unless very proper firm guidelines were laid down by Parliament". I emphasise the noble and learned Lord's reference to the justiciability of such an application for dispensation of marriage, and his reference to the desirability of firm guidelines being laid down by Parliament, which, as your Lordships will see when I refer to my Bill in detail, I have introduced.

The noble and learned Lord, the Lord Chancellor, went on to say: But that there ought to be a power of dispensation I have no manner of doubt, and indeed there always has been. The only trouble is that the power of dispensation which exists"— and he was referring there to the approach by means of a Personal Bill— is inconvenient, embarrassing and, as we have discovered this afternoon, somewhat time-wasting in the High Court of Parliament". He said that, without hesitation, he was supporting my Personal Bill.

Therefore, the Bill which I am presenting to your Lordships is a simple one and not at all cumbersome. It deals with an urgent social problem which is causing real hardship and, as your Lordships may know, there are two cases before the Personal Bills Committee at the present time. It is an easy Bill to put into practice and is reasonable and just.

May I now turn to the details of the Bill? Clause 1 indicates that the court should be capable of authorising marriage. It states: Subject to the provisions of this Act, the court may, upon application being made to it in the prescribed form, give leave to a stepfather to marry his stepdaughter or to a stepmother to marry her stepson, notwithstanding that they stand in relation to each other within the prohibited degrees of affinity contained in Part I of the First Schedule to the Marriage Act 1949". I should explain that the Marriage Act 1949 excludes Scotland from its ambit. Therefore, the Bill with which I am dealing does not apply to Scotland, as is made clear in the latter part of it. When I put this Bill forward, I sent it informally to the Lord Chancellor and his comment was that Scotland should not come within the ambit of this present Bill.

Clause 2 is an attempt to give guidelines or to set conditions regarding the leave to marry. It reads: The court shall not grant leave under section 1 of this Act unless it is satisfied that:— (i) neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the dissolution of any previous marriage of the other party". Those are simple words. The court would be able to judge whether it was right and proper, in all the circumstances of the parties and their past position in regard to the previous marriage. The clause continues: (ii) at no time prior to the application under section 1 of this Act the parties to the intended marriage have lived together in a family during the minority of the stepchild". It has been pointed out to me that, perhaps, that condition is too exacting, but that may be a Committee point to be dealt with later. The third guideline is: (iii) the intended marriage will be for the welfare of the parties thereto". Clause 3 expands what is meant by "welfare of the parties" and is a further guideline for the court. It sets out the circumstances to be considered by the court and states: In deciding whether or not the intended marriage will be for the welfare of the parties thereto the court shall have regard to all the circumstances of the case and in particular:— There then follow four fairly obvious directions tothe court:— (i) the ages of each of the parties to the intended marriage; (ii) the income, earning capacity, property and other financial resources which each of the parties to the intended marriage has or is likely to have after the said marriage". Again, that is an obvious safeguard which the court has to consider. The clause continues: (iii) the financial needs, obligations and responsibilities which each of the parties to the intended marriage has or is likely to have after the said marriage; and (iv) the physical or mental disability of either party to the intended marriage". It may be felt that to impose guidelines is too comprehensive, but in exercising its discretion the court must necessarily take into account most of the circumstances which I have set out.

Clause 4 relates to which court is applicable for such an application to be made before it. Subsection (1) says: An application for leave under Section 1 of this Act may be made to the Family Division of the High Court or to any County Court within the jurisdiction of which either party to the intended marriage resides". Subsection (2) of Clause 4 says: The Lord Chancellor shall make rules prescribing all matters of procedure in relation to an application under section 1 of this Act and such rules may provide for the application to be determined otherwise than in open court". In my view, the phrase "otherwise than in open court" is essential. Your Lordships may consider that in order to make the procedure cheaper and less embarrassing to the parties some other procedures ought to be adopted. For instance, it might be more satisfactory if the matters to be considered were dealt with by a judge in chambers. The general position which subsection (2) of Clause 4 attempts to set out is that the Lord Chancellor will be making rules prescribing all matters of procedure.

Clause 5 is a short clause dealing with interpretation and does not require further explanation. It says: In this Act, the expressions 'stepson' and 'stepdaughter' shall include children born out of wedlock". Clause 6(1) says that the short title of the Bill shall be the Marriage (Step-parents and Stepchildren) Act 1982 and it goes on to say in subsection (2): This Act shall not apply to Scotland or Northern Ireland". This Bill offers a much simpler, much easier, less embarrassing, less cumbersome and more just procedure to enable people who find themselves in the position of step-parent and step-children, in conditions which cause considerable hardship to them, to put their case to the courts instead of having to put it forward in a Personal Bill. Perhaps I ought to declare that I have no interest at all in this matter. In the Berry v. Ward case, I did not see either of the parties. Apart from a letter of thanks from Mr. Berry, I have had no communication at all with them.

As I mentioned the right reverend Prelate who is to speak after me, perhaps I ought now to disclose an interest: that I am a Fellow of Selwyn College, Cambridge, which is an ecclesiastical foundation and that the main draftsman of the Bill, Douglas Day, a barrister of Lincoln's Inn, is also a member of Selwyn College, Cambridge. However, having had the experience of putting before your Lordships a Personal Bill in the Berry v. Ward case, I felt that there was a factor relating to social matters which ought to be dealt with and that people who are in the position of step-parents or step-children should not be put into the embarrassing situation and to the expense of having to mount a Personal Bill before the two Houses. I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read a second time.— (Lord Lloyd of Kilgerran.)

5.54 p.m.

Lord Mishcon

My Lords, when one adds the able advocacy of a leading member of the Bar to the natural persuasiveness of a Welshman, one has indeed a formidable proponent of any cause. I am sure that the House will admire, as I certainly did, the very lucid way in which the noble Lord, Lord Lloyd of Kilgerran, moved the Second Reading of this Bill. It is not the first time that the noble Lord has used his advocacy in a similar cause. As he rightly reminded us, he was a very eloquent proponent in 1980 of the Edward Berry and Doris Eileen Ward Marriage Enabling Bill, which then became an Act.

This House has heard on several occasions arguments regarding marriages of affinity and it has always been a matter of private conscience, as it is on this occasion. Therefore anything that I say is, of course, a personal comment—possibly worthless as a result of that—and in no way binds any of my noble friends. However, when the Marriage Enabling Bill came before your Lordships' House and achieved a Second Reading but fell, if I may use that phrase, at the third fence, I remember so well my noble friend Lord Boston of Faversham using these words: … many of us—perhaps all of us—also have sympathy for the view that the relationship of husband and wife is such, is so close, and ties between their two families are so close, that that itself needs to be protected, because the relationships formed are such special ones. Some would not be able personally to contemplate the marriage of step-parent and stepchild in any circumstances. I confess that I am in the unfortunate position of being able—as I dare say we all are—to see both sides of this argument and to sympathise, to some extent, with both of them". I am quoting from the Second Reading of the Marriage Enabling Bill at col. 1134 of Hansard on 25th February 1981.

I imagine that many of us, if not most of us, will have precisely the same sort of feeling. Many of us, if not most of us, would take the view, as did the noble and learned Lord the Lord Chancellor on a previous occasion, that this procedure of a Private Bill dealing with the private circumstances of two individuals is an unfortunate, costly, delaying way of dealing with a problem. Personally, I can only say that I believe that this is either a matter which one deals with by legislation, thus enabling marriages of this kind to take place (and that would be contrary to the consciences and beliefs of many Members of your Lordships' House) or a matter where unfortunately one has to admit there is no alternative practical procedure.

The reason I say that is this, and I say it with the greatest of deference to the noble Lord, Lord Lloyd of Kilgerran: to ask the Family Division—indeed, to ask any court—to decide the matters which are contained in this Bill is to put upon our judiciary not only a most unusual task but, in my respectful view, an impossible task. We are accustomed in our courts to an adversarial position where two proponents of a cause argue before a judge on a matter which is at issue, and he then comes to a decision. There are rare exceptions to that rule. May I ask your Lordships to imagine what a judge of the Family Division would be expected to do if this Bill ever became law. Immediately one sees insuperable difficulties. I would refer your Lordships merely to Clause 2(i) of this Bill. The court has to be satisfied that neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the dissolution of any previous marriage of the other party". That presumably means that one has to give notice to the spouse who was concerned in any previous marriage; that one would have to hear what that spouse had to say about the breakdown of that marriage and the cause of it; that one would have to decide that dispute; and that one would be doing it contrary to the whole spirit with which the Family Division now operates as a result of what many people think is the enlightened legislation on our divorce laws.

Some people feel that the word, "enlightened", is a wrong description to give the evolution of our divorce laws, but whether you take one view or another is completely contrary to it, because it means going into the question of who is to blame for the breakdown of a previous marriage between one of those parties. The whole essence of our present divorce laws is that blame is irrelevant; the only consideration is, has the marriage irrevocably broken down? In regard to decrees and matters of that kind, the courts are not interested in apportioning blame.

The next matter which the courts would have to decide is in Clause 2(ii): At no time prior to the application under Section 1 of this Act the parties to the intended marriage have lived together in a family during the minority of the stepchild;". That again is an odd way—and it is mandatory—of deciding justice between two parties. Does it mean that if the stepdaughter, for example, was 17½ years of age when the stepfather came into the family, the marriage is absolutely and completely barred whatever the merits, whatever the social consequences, whatever the heartbreaks? But if when he walked into the family home the child was 18 years and one day old, some six months later, then that is a condition which is satisfied under this Bill and therefore the marriage can be sanctified, if I may use that phrase? Then the Bill states: (iii) the intended marriage will be for the welfare of the parties thereto". That is a situation which turns the judge, I have no doubt, into a prophet and in the Family Division of all divisions, it might make him a little sceptical in having to decide that a certain marriage was for the welfare of the parties—but that is the least important of the points I have to raise in regard to the difficulties of throwing this matter into the hands of the courts.

If your Lordships will turn to the second page of the Bill you will see that under Clause 3, the circumstances which have to be considered by the court include, presumably under this Bill, a whole range of investigations as to the financial circumstances and the possibilities of the parties. The conclusion which I personally reach and which I humbly put to your Lordships is that whatever be the rights and wrongs of our present procedure—which we all admit is cumbersome, expensive and embarrassing—and whatever may be the demerits of that system, it cannot in my view be right to substitute for that a Bill which throws the burden upon the Family Division of the High Court, on the county court or any other court and makes the situation of any judge which has to try it completely impossible. In any event, as I have tried to say, it is inconsistent with our thinking on the way in which the Family Division operates.

6.4 p.m.

The Lord Bishop of Hereford

My Lords, I should like to associate myself with the intentions of the noble Lord, Lord Lloyd of Kilgerran, in re-introducing this Bill. Your Lordships will remember that when this House was considering the Bill introduced by the noble Baroness, Lady Wootton of Abinger, the Marriage Enabling Bill, the bishops made it clear that their objection to that Bill was that by removing all constraints on marriage based on affinity, it proposed a solution which was too sweeping and which would be damaging in its consequences in eroding the delicate network of relationships within the family.

The bishops accepted that cases could arise where it would be right for a stepfather to marry his stepdaughter but the problem was and remains to find some criteria which could be applied and some means of applying them. The right reverend Prelate the Bishop of Durham, in referring to some hard cases during the Third Reading of the Bill, made it clear that the bishops were not unsympathetic towards such cases. What they opposed was the wholesale sweeping away of the law in the manner which was then proposed. The question now before this House is whether what is proposed in this Bill provides satisfactory criteria and, if so, whether this method of proceeding would be workable.

On the first question, I believe that the wording of Clauses 2 and 3 of the Bill need careful examination and some amendment at Committee stage if the Bill is given a Second Reading. Your Lordships will remember that, at the Committee stage of the previous Bill, an amendment was agreed which provided for a minimum age of 21 for both parties for such marriages. A clause was also included which provided that no clergyman of the Church of England or Church of Wales should be compelled to solemnise such marriages or to permit them in the church or chapel of which he was the Minister. Some other amendments were also proposed but rejected and it would be desirable for some of these to be looked at again, or so I believe.

The more difficult question is whether the means proposed in this Bill—that is, adjudication by the courts—is workable. This is a matter on which legal opinion seems to be divided and the issue would seem to be one to which we shall have to listen with care to the noble and learned Lords. I would remind your Lordships of the words used by the right reverend Prelate the Bishop of Durham in the Third Reading debate of the previous Bill: If other countries can retain laws prohibiting marriage within the affinities and yet allow it in certain circumstances, why cannot this country?". Whether the present Bill should progress would seem to depend on whether a satisfactory answer can be given to this question. If the view prevails that this Bill does not provide a way forward that is workable, the Archbishop of Canterbury has authorised me to say that he intends to set up a committee to advise him on this matter in consultation with the other Churches. What seems to be needed is a thorough, careful study of the matter in which theological, sociological and legal interests could be represented and in which the experience of other countries could be taken into account, with the aim of seeing whether some alternative to the present Personal Bill procedure can be devised. This will take time and resources and it may be that Her Majesty's Government will feel that they themselves should take some initiative in this direction; that is something to which the Ministers must give their own attention, but I mention the intention of the Archbishop of Canterbury to set up this committee since it shows that the Church recognises that there is a problem which needs some solution, and that solution needs to be found. What we are looking for is a means by which, without sweeping away the present law, cases can be looked at and adjudicated against some reasonable criteria. If the present Bill is judged not to provide a workable answer, the setting up of such a committee might be a helpful next step.

6.9 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)

My Lords, in view of the sponsorship by the noble Lord, Lord Lloyd of Kilgerran, of the Personal Bill two years ago, to which the noble Lord made reference, it comes as no surprise that the noble Lord is promoting this Bill to enable the courts to relax in individual cases and subject to certain conditions the general prohibition of the marriage of step-parents with step-children. Incidentally, this Bill does not deal with the case of step-grandparents or of sons- and daughters-in-law, a matter to which in his very persuasive speech the noble Lord, Lord Lloyd did not refer. The point to which the noble Lord most certainly did refer, and which of course has elicited sympathy from all speakers is that the procedure of a Personal Bill is very cumbersome, very expensive, and in the view of many people, too public in character to be suitable for the determination of the appropriateness of a particular marriage, and it is with this in view that the noble Lord has brought forward his Bill this evening.

In considering the Bill, I think the House will wish once again to have regard to the widely expressed desire to preserve the stability and integrity of the family and to discourage the development of inappropriate personal relationships within a family, in particular where people of different generations may be involved, though the way in which these considerations should influence the content of the law is a matter of judgment. However, I know that probably the whole House, certainly the Government, are indeed grateful to the right reverend Prelate the Bishop of Hereford for telling your Lordships of the initiative to be taken by the most reverend Primate the Archbishop of Canterbury in deciding to set up a committee, in consultation with other Churches, to examine possible ways in which dispensations from the general law on prohibited degrees of affinity could be given in deserving individual cases. My right honourable friend the Home Secretary will await with interest the fruits of that committee's work.

I should like to acknowledge that the approach of the noble Lord, Lord Lloyd, embodied in this Bill is to seek to relieve hardship in individual cases. And it is not unprecedented; the House may be interested to know that there is a small number of countries, including Denmark. France, West Germany, Norway and New Zealand, in which the law makes provision for the granting of dispensation to marry within degrees of affinity under the authority of the state. But, with the sole exception of New Zealand, the countries concerned have, it would be fair to say, systems of jurisprudence rather different from our own common law. I believe that under the New Zealand legislation, which is of quite recent origin, there have been only three applications, and I regret that information about the working of that legislation is not readily available.

We are indebted to the noble Lord for explaining very clearly why he wishes to provide a dispensation from the rigorous application of the law in individual cases. But there are some substantial difficulties in developing an appropriate procedure for dispensation as an alternative to a Personal Bill. Perhaps the main difficulty is that an application for permission to marry would give rise to no adversarial contest between parties on the basis of which the court could reach a determination. There would, I think, be difficulties about the obtaining and the adducing of evidence and the manner of testing its validity. In particular, Clause 2 reintroduces the concept of the matrimonial offence, which Parliament abolished as long ago as 1969 in the Divorce Reform Act, which freed the courts of the task of apportioning blame judicially between the parties. In the circum stances of an application to marry another person, perhaps many years later, it would be very difficult for the court to allocate blame for the matrimonial breakdown in the way which Clause 2 of this Bill would require.

The noble Lord, Lord Mishcon, felt that Clauses 2 and 3 lay an impossible task upon the court. Certainly the House may remember that very much the same issues were debated on an amendment in the name of the noble Lady, Lady Saltoun, during Lady Wootton of Abinger's Bill last year, and in fact the House rejected that particular amendment. Clause 2 also contains a provision precluding the granting of leave to marry where the parties to the intended marriage lived together in a family during the minority of the stepchild. As I understand it, that, rather surprisingly, would place an absolute bar for all time between persons who had ever had a close relationship within a family unit, even in the distant past, and it would remove a right which it is possible for those who come to Parliament for a Personal Bill to obtain at the present time.

There is just one further difficulty. The Bill does not make provision for Scotland, and this was a matter which the noble Lord specifically mentioned, saying that he had asked the Lord Chancellor about it and the Lord Chancellor had said it was a good idea to take Scotland out. I think, if I may say so—and I have not had the opportunity to consult my noble and learned friend—that the Lord Chancellor's comment about the Scottish application was directed to the drafting of Clause 1 of the Bill, which refers to the Marriage Act 1949 and covers only England and Wales. But, of course, there is a Scottish Marriage Act similar in substance to the 1949 Act. Scottish law on stepparents' marriage is the same as the law in England and Wales. Obviously Scottish law is a matter for Scotland, but I would ask the noble Lord, Lord Lloyd, to consider seriously the proposal in this Bill which would create different laws about the capacity to marry on either side of the Border.

My Lords, for these reasons, while certainly the Government are not unsympathetic to the hardship which the present law may in a limited number of cases impose on individual couples, we do feel constrained to advise your Lordships that the proposed arrangements in this Bill for the grant of leave to marry by courts of law would be exceedingly difficult to put into practice. The noble Lord has explained very clearly and persuasively his concern on this subject. But, in the light of the consideration which is to be initiated by the most reverend Primate the Archbishop of Canterbury, I do wonder whether the noble Lord, Lord Lloyd, would perhaps like to consider the position of this Bill at the present time, which I am bound to say does not, I think, provide a satisfactory foundation for a change in the law on this difficult subject.

6.18 p.m.

Lord Lloyd of Kilgerran

My Lords, may I say how grateful I am to the noble Lords who have participated in this very interesting and very important debate in a social context. I am very grateful for the speech of the right reverend Prelate the Bishop of Hereford. He indicated that he and his colleagues wished to be associated with me in the general theme which my Bill puts forward. Most noble Lords who have spoken agree that the present procedures are unsatisfactory for hard cases, and it is only the hard cases that come up to this House.

My Lords, the noble Lord, Lord Mishcon, has disappointed me. His objection was—I have his words—that whatever be the rights and wrongs of the present process, that is the Personal Bill, it cannot be right to substitute a procedure which throws the burden on the court and makes the position of the judge impossible. If this were another forum and I was in that forum with the noble Lord, Lord Mishcon, I might be using different words from those which I propose to use now, but I am very disappointed that the noble Lord, Lord Mishcon, has not got confidence in the judges of this country to deal with albeit difficult questions relating to the personal habits, the personal arrangements, of the parties.

Lord Mishcon

My Lords, I know that the noble Lord, as always, will courteously give way when he mentions the name of one of your Lordships' House and criticises what he says. Nothing that I said was ever meant to cast an aspersion upon the ability of Her Majesty's judges to judge what was appropriate before them. My point was that this was not an appropriate matter for such a judge to judge.

Lord Lloyd of Kilgerran

My Lords, I am very much obliged to the noble Lord for that very helpful statement in the course of my speech. But what does he mean when he says that my Bill makes the position of a judge impossible? Indeed, he supported that by saying that one of the reasons why it would make it impossible is that I am turning the judge into a prophet. I am sure that the noble Lord, Lord Belstead, and the noble Lord, Lord Mishcon, realise that in many Acts of Parliament the words, "in the public interest", appear and the judge has to decide whether the matters before him are in the public interest. I have heard many judges in my experience deplore the fact that they have got to consider the public interest, but that is commonly the position of our great judges in this country. They have to go into the future; they have to consider the public interest. And what is that, but looking into the future?

In my view, a court dealing with these family matters finds them no more difficult than many of the other hard tasks that it has to deal with. Let us consider the hard tasks that courts have to deal with involving the guardianship of children. That is a jurisdiction which they carry out extremely well and justly, and they have to look into the future and into the welfare of the parties concerned. I hasten to say that I have no real experience of the family court, but I am not unfamiliar with some of the judges who have acted in the family courts. I heard one judge say that dealing with matters of this kind is nowhere near as difficult as dealing with matters involving intellectual property, patents, trade-marks and know-how like that. It would seem to me that the points which were raised by Mr. Mishcon are directed to Clause 2 subsection (i), (ii) and (iii).

Lord Mishcon

My Lords, I think that the noble Lord may quarrel with me, but to rob me of my noble status is really too much!

Lord Lloyd of Kilgerran

My Lords, again, I must apologise to the noble Lord, Lord Mishcon, but, as I indicated, I would have behaved differently if we were in a different forum. I am sure that the noble Lord will forgive me for that mistake. Nevertheless, taking the matter seriously, as regards the general theme of the Bill, it would seem to me to be accepted that some other procedure is necessary. Apart from the noble Lord, Lord Mishcon, it seems to me that it is agreed that the courts could deal with applications of this kind although the task may be a very difficult one. However, I am sure that the judges would not shudder from dealing with difficult tasks of this kind.

The points of detail raised by the noble Lord, Lord Mishcon, in so far as Clause 2 is concerned seem to me to be matters which could be raised and dealt with in Committee. The noble and learned Lord the Lord Chancellor, from whose speech of 22nd May 1980 I quoted, indicated that, in order that this matter should be justiciable—to use his words—there should be guidelines set down by Parliament to assist the court. Therefore, the only thing that prevents this Bill going forward at the moment is the anxiety about whether Parliament can put down adequate guidelines to assist the courts in this difficult matter. That is a matter for the Committee stage and, therefore, I commend this small Bill to your Lordships.

6.25 p.m.

On Question, Whether the Bill shall be now read a second time?

Their Lordships divided: Contents, 47; Not-Contents, 32.

Ailesbury, M. Houghton of Sowerby, L.
Amherst, E. Jacques, L.
Ardwick, L. Jeger, B.
Auckland, L. Lloyd of Kilgerran, L. [Teller]
Avebury, L. McNair, L.
Aylestone, L. Melchett, L.
Bacon, B. Mountevans, L.
Beaumont of Whitley, L. Noel-Baker, L.
Brooks of Tremorfa, L. Phillips, B.
Bruce of Donington, L. Ponsonby of Shulbrede, L.
Burton of Coventry, B. Rochester, L.
Cledwyn of Penrhos, L. Seear, B.
Collison, L. Sempill, Ly.
Cork and Orrery, E. Spens, L.
Craigavon, V. Stewart of Fulham, L.
David, B. Strathcarron, L.
Davies of Leek, L. Taylor of Mansfield, L.
Evans of Claughton, L. Underhill, L.
Ewart-Biggs, B. Wade, L.
Fortescue, E. Whaddon, L.
Gainford, L. White, B.
Gosford, E. Wilson of Radcliffe, L.
Hampton, L. [Teller.] Winstanley, L.
Hooson, L.
Bathurst, E. Lauderdale, E.
Boyd-Carpenter, L. Loudoun, C.
Colwyn, L. Marley, L.
Dundee, E. Mishcon, L.
Eccles, V. Mottistone, L.
Eldon, E. Nugent of Guildford, L.
Ferrers, E. Orkney, E.
Fraser of Kilmorack, L. Richardson, L.
Grimston of Westbury, L. Rochester, Bp.
Harmar-Nicholls, L. St. Davids, V.
Harvington, L. [Teller.] Seebohm, L.
Hemphill, L. Stone, L.
Hereford, Bp. [Teller.] Strathspey, L.
Hylton-Foster, B. Swinfen, L.
Kinloss, Ly. Terrington, L.
Lane-Fox, B. Thurlow, L.

Resolved in the affirmative, and Motion for Second Reading agreed to accordingly: Bill read a second time, and committed to a Committee of the Whole House.