Lords Sitting of 5 December 1983

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.
The Duke of Argyll—Took the Oath.

Personal Statement: The Lord Denham
Lord Denham: My Lords, with the leave of the House, I should like to make a personal statement.
In the course of the Unstarred Question on the Warrington printing dispute last Thursday it seemed to me that some remarks made by the noble Lord, Lord Dean of Beswick, reflected on the integrity of my right honourable friend the Prime Minister. I interrupted his speech to draw his attention to the passage in the Companion to Standing Orders that refers to criticisms of a personal nature directed against members of another place. The noble Lord, Lord Dean, has since assured me that his criticisms were intended to be of a political rather than of a personal nature, and of course I accept that assurance. Having re-read the remarks in the Official Report, I now see that the guidance given in this respect by the Companion does not apply. I should like to apologise to the noble Lord and to the House.

Council on Tribunals: Report
2.37 p.m.
Lord Tweedsmuir: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have received the latest report of the Council on Tribunals produced upon their twenty-fifth anniversary.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, the annual report of the Council on Tribunals for 1982–1983 was published on 2nd December. The report is made to me and to my noble and learned friend the Lord Advocate. This might be an appropriate moment for me to express my appreciation and that of my noble and learned friend to the chairmen and members of the council from time to time for the valuable work which they have done in the 25 years since the council was set up. There can be no doubt that the public have benefited constantly from the work of the council and, in particular, from improvements in the procedures of tribunals and inquiries which have resulted from their recommendations. I would add, if I may, that my noble friend Lord Tweedsmuir made a distinguished contribution to the work of the council during his seven years as its chairman.
Lord Elwyn-Jones: My Lords, may I join the noble and learned Lord in expressing our gratitude to the noble Lord, Lord Tweedsmuir, who has so fittingly put
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down this Question, bearing in mind his notable contribution as a former chairman. Is it not the case that since the council was set up by the Labour Government 25 years ago it has rendered great service in safeguarding the independence of the 60 kinds of tribunals and inquiries which it supervises and, so far as it can, in seeking to ensure that individuals affected are treated fairly? Would the 25th anniversary of the setting up of the council not be a suitable occasion for extending legal representation in tribunals? Is this also not a time for the House to be given an opportunity to review the work of the council?
The Lord Chancellor: My Lords, I am grateful to the noble and learned Lord for all those remarks. The question of debate is not for me, but for the usual channels. Obviously if there were such a debate, and I was so invited, I should be very glad to take part. As regards the setting up of the council by the Labour Government, if the Labour Government had done only that in the past 25 years I might almost join the noble and learned Lord's party. I note what he says about that one episode of Labour policy.
In relation to legal representation on tribunals, there are tribunals and tribunals. Some have the right to legal representation. The noble and learned Lord has referred to the 60 kinds of tribunal—certainly a large number. This development, which has largely, though not entirely, taken place since the war, was originally designed to do without lawyers. The tribunals were set up in this informal form to prevent what is called a happy hunting ground or paradise for lawyers. The question of legal representation has been considered case by case and in the light of constraints on public expenditure and manpower resources.
Baroness Burton of Coventry: My Lords, if I may, I shall declare a past interest as chairman of the Council on Tribunals. May I ask the noble and learned Lord whether he is aware how much members of the council have always appreciated the help and co-operation given by him and by his noble and learned predecessor, the Lord Gardiner? Moving on from that, may I ask the noble and learned Lord whether his consideration and encouragement would extend to a sentence in the leader of The Times of today, which says that the council has a good claim for further support, if it is to be able to develop its role and increase its usefulness in the future? Can the noble and learned Lord offer to all of us interested in the Council on Tribunals some encouragement in that sphere?
The Lord Chancellor: My Lords, I remember in a previous incarnation congratulating and thanking the noble Baroness herself for the part that she had played. I think that the House would wish to add their appreciation to the noble Baroness to what I have already said to my noble friend. I hope that what she says it true about both my noble and learned predecessor and myself. We find our co-operation with the Council very valuable. It helps us perform one part of our task which otherwise we might be rather ill-equipped to perform, and therefore we find it very valuable, indeed. I did see, but I am afraid, only scanned, the leading article in The Times. I am certain that I shall give it all the support I can, bearing in mind the usual provisos.
Lord Gainford:My Lords, can the noble and learned Lord on the Woolsack say whether Her Majesty's Government are satisfied that the council has enough resources to carry on with the fairness and impartiality which has been referred to by the noble Lord, Lord Elwyn-Jones, as its workload has increased two and a half times over the last 25 years?
The Lord Chancellor: My Lords I suppose that none of us has all the resources that we should like in order to do all the things that we should like to do, but the Council on Tribunals has only got to come to me and discuss any particular requirement that it may feel it needs and I will see what I can do for it. I cannot make promises instantly on my feet.
Lord Glenamara: My Lords, may I ask the noble and learned Lord whether his attention was drawn to a recent BBC radio programme which appeared to show that there were appalling delays in industrial tribunals which amounted to a denial of justice for some appellants? Did the noble Lord hear that programme and, if so, can he say what he is doing about it?
The Lord Chancellor: My Lords, I am afraid that the answer is, no, I did not hear it. I will inquire into the matter and perhaps write to the noble Lord if that is convenient.

Blood: Licensing Requirements
2.43 p.m.
Lord De Freyne: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will give an assurance that, should an independent blood supply organisation be established following their decision to charge a handling fee for blood used in private hospitals, it will be subject to the existing safeguards.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, I can confirm that anyone intending to collect and supply human blood for transfusion would have to meet the licensing requirements of the Medicines Act. However, the Government are, rightly, proud of the National Blood Transfusion Service and the voluntary donation system on which it is based, and would discourage any moves to establish an independent blood supply organisation.
Lord De Freyne: My Lords, I thank my noble friend for that reply. Everyone, I know, is conscious of the need these days to help the public services pay their way, but in view of the growing public concern at the proposed handling charge (or, could I say, blood money?) may I ask the Minister whether he would not agree that when money enters the matter it opens the door for malpractice or commercialisation, which I believe is the case in America? Is it morally correct to make any charge for blood given freely and
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voluntarily, as has always been the way of our traditional donor system in the United Kingdom?
Lord Glenarthur: My Lords, I think my noble friend may be under some misapprehension. The blood itself is not being charged for. It is a handling charge, as I think is now widely realised. We believe that the independent sector should pay for the cost of services provided by the National Health Service. There has been a rapid growth in the quantity of blood provided to private hospitals, and a rising cost to public funds of handling and transporting it. We have decided, therefore, that in line with other services offered to the independent sector, it would be equitable and logical to make an economic charge to reimburse the regional health authorities for the cost of collecting, processing, handling and transporting blood and blood derivatives.
Baroness Hylton-Foster: My Lords, could the charge to private hospitals lead to an increase in charges to the patients? If so, is this fair in view of the fact that they have already paid their national health contributions?
Lord Glenarthur: My Lords, if they are getting blood at private hospitals it is for them to pay and/or to take the matter up with their insurance companies, if that is the way they deal with these things.
Baroness Vickers: My Lords, as chairman of the Greater London Fund for Blood Transfusion—and this concerns liquid blood—may I ask my noble friend to make it quite clear that the money is not for the blood but is purely for the costs of administration? We have recently had a very helpful development by way of getting off VAT, so the charges will not be quite so high. Instead of charging every individual person for this administration, we should like to have a yearly grant, which I think would be a much better way of running it.
Lord Glenarthur:My Lords, I do not think that I can comment on the question of a grant in the way the noble Baroness has described it, but I can say that we would certainly do everything in our power—we have already done quite a lot—to make plain to the public at large that we are not charging for blood but merely for the handling of it, which I described just now.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that we on these Benches welcome the statement that the Government do not intend to privatise blood? The other point about which I should like to ask—and I think it is relevant—is whether it is a fact that we are still importing blood. If that is the case, should not the full charge be made for the price paid for blood from overseas?
Lord Glenarthur: My Lords, we are not importing blood. We are self-sufficient in whole blood, but we need to import blood products such as Factor VIII, to which I think the noble Lord was referring.
Lord Molloy: My Lords, is the Minister aware that since the increase in private medicine this issue of transferring blood from one place to another has raised

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a few problems? While I, and, I think, the associations within the Health Service, accept and welcome the statement that he has just made, nevertheless there are problems which are neither administrative nor economic which are giving concern to the relevant sector of the British Medical Association and the Confederation of Health Service Employees. Would it be possible for the noble Lord's right honourable friend in another place to see both these organisations in order to ascertain precisely what their apprehensions are?
Lord Glenarthur:My Lords, I am not aware of the apprehensions to which the noble Lord refers. I am quite sure that my right honourable friend will note what he says.
Lord Wigoder: My Lords, is the Minister aware that a higher proportion of those who use independent medicine give their blood to the transfusion service than of those who use only the NHS? In those circumstances, would not separate blood banks not only be thoroughly undesirable but positively detrimental to the NHS?
Lord Glenarthur: My Lords, the National Blood Transfusion Service is equipped and has the expertise to meet all demands for blood and, provided we make the optimum use of all the blood received, there should be no need for private panels. The introductions of such panels, which I think is what the noble Lord, Lord Wigoder, is suggesting, whether voluntary or paid, could only be detrimental to the service's own voluntary system.
Baroness Masham of Ilton: My Lords, may I ask the Minister whether he can give an assurance that old blood—blood that has passed its recommended date of use—will not be passed on to private hospitals?
Lord Glenarthur: Yes, my Lords, I can give the noble Baroness that assurance.
Lord De Freyne: My Lords, can my noble friend give an indication as to what the handling fee will be? I gather from the British Medical Association that it will cost about £18 per unit; that is, three-quarters of a pint. Is that correct?
Lord Glenarthur: My Lords, the precise level of charge is so far not fixed. We shall be discussing this, together with the operative date when it will come into effect, with representatives of the National Health Service and the private sector; but we anticipate that the handling charge per unit of whole blood will be around £19. That is just a projected figure at the moment.
Lord Morris: My Lords, will there be a charge for blue blood?
Lord Glenarthur:My Lords, I shall wait until I see whether the noble Lord is prepared to deliver some, and then I will see what arrangements can be made.

Korean Airliner: Identification
2.51 p.m.
Lord Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what evidence has been made available to them which shows that the Soviet authorities and air forces were aware, at the time the Korean aircraft was destroyed, that the machine was in fact a civil airliner.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, the Soviet authorities had plenty of opportunities to intercept the Korean airliner and identify it visually during the substantial time that it was in Soviet airspace. They failed to do so.
Lord Beswick: My Lords, I am obliged to the noble Baroness for that answer. Is she aware that many people—probably most people—in this country agree with the Prime Minister and with the Commonwealth Conference that the time has now come when we should try to get a constructive dialogue with the Soviet Union? Would she think that the theatrical presentation at the United Nations by Mrs. Kirkpatrick, in which she used inaccurately and probably misleadingly transcribed tapes and when the President of the United States talked about the cold-blooded shooting down of the airliner when there is not a shred of evidence to suggest that the Soviet pilot knew that it was a civil airliner is really consistent with a sincere desire for a dialogue?
Baroness Young: My Lords, I think the incident inevitably damaged the Soviet Union's international standing. So far as Her Majesty's Government's relations with the Soviet Union are concerned, we would welcome a more constructive relationship, but would expect a change in the Soviet attitude for this to be achieved. As my right honourable friend the Prime Minister has made clear, the Government are ready to pursue in the right circumstances a sensible and realistic dialogue.
On the question of the verification, the evidence is that, despite Soviet claims, there is no evidence from the transcript of the interceptor pilot's conversation that he either made visual manoeuvres in front of the airliner to-indicate that he had seen it or attempted to make contact by radio on international emergency frequencies.
Lord Gladwyn: My Lords, would not the Government be prepared to accept the possibility that in a moment of panic the local Soviet authorities were not aware that they were actually going to shoot down an airliner with 260 passengers on it?
Baroness Young: My Lords, on the incomplete evidence that is available, there is no reason to contradict the answer which was given by Marshal Ogarkov on 9th September that the decision to shoot down the airliner was given by the Commander of the Air Defence region.
Lord Hatch of Lusby: My Lords, is it not the case that both the Americans and the Japanese had been monitoring this aircraft for two hours before it was destroyed and had passed on no information that it was off course to the pilot or had any communication with the Soviet authorities?
Baroness Young: My Lords, all air traffic on the route between Anchorage and Japan is out of radar coverage from the time it leaves the Anchorage area until it approaches Japan. The pilot of each airliner using the route is responsible for reporting his position from time to time, using his own navigation system. So far as we know, the pilot of KAL.007 made regular reports of his position and it appears that he thought he was following a normal air route. In the circum stances, the air traffic controllers would have had no way of knowing that the airliner was in fact off course.
Lord Jenkins of Putney: My Lords, is it not the case and becoming generally accepted that the colonel in the Korean Air Force who was flying the aircraft knew precisely where he was and that the aircraft was in fact on a spying mission and that he had instructions—
A noble Lord: Nonsense!
Lord Jenkins of Putney:—and our own civil aircraft organisation agrees that this was not a stray. This is now widely accepted and, in view of this, is it not the case that a thorough examination of this whole affair, including the entirely regrettable loss of life, might reveal a state of affairs which would be different from that which the Government at present believe?
Baroness Young: My Lords, I am not prepared to agree with what the noble Lord, Lord Jenkins, has said. It is not clear whether there was human error or some equipment failure as to why the airliner strayed off course. There is, of course, an inquiry by the International Civil Aviation Organisation, whose report is expected to be published today. That may throw some light on it.
Lord Kilbracken: My Lords, in view of the fact that all aircraft on this route are followed by radar control by the Japanese, must it not have been perfectly obvious to the radar operators that this aircraft was a very long way off course?—yet they gave absolutely no knowledge of this to the pilot of the aircraft.
Baroness Young: My Lords, I am afraid the noble Lord is under a misapprehension. As I said in an earlier answer, in fact there is no radar cover on this part of the course of the aircraft.
Lord Bishopston: My Lords, does the noble Baroness recall the fear which gripped the world following the incident? Is she aware of the grave concern which many have in all countries that if such an incident occurred again with a nuclear dimension we should not be able to ask questions and sort out the merits afterwards? Can she say what initiatives the Government have taken with other countries, including the United States and the Soviet Union, to see that such an incident does not happen again?
Baroness Young: My Lords, as I have already indicated, there has been an inquiry into this matter and the results are expected to be published today.
Lord Harmar-Nicholls: My Lords, is my noble friend not disturbed that with the exception of the last question, which did not fall into this category, all the questions on this subject so far seem to imply that the Americans were wrong and that the Russians did nothing very wrong?
Baroness Young: My Lords, the Government's position on this matter has been quite clear. We thought that the destruction of the Korean airliner on 1st September was a disgraceful breach of the Soviet Union's international obligations in respect of air safety. As a consequence, we, together with the majority of our allies, imposed a 14-day ban on civil flights between the United Kingdom and the Soviet Union and on Soviet over-flights of the United Kingdom.
Lord Paget of Northampton: My Lords, does the noble Baroness agree, without taking sides in this matter at all, that nobody has yet brought forward any explanation which is in the least satisfactory as to how this aeroplane ever got off course to this extent and remained unconscious so long of what was happening? It really did sound, as one paper put it, as though the pilot must have become unconscious for some reason. Have we any explanation at all?
Baroness Young: My Lords, as I indicated in answer to an earlier supplementary question, we do not know whether there was a human error or whether there was some equipment failure in the aircraft. The report of the inquiry into this matter may shed some light on the cause of it.
Lord Beswick: Are the noble Baroness and the noble Lord opposite aware that I have more reason than most for not wanting civil airliners to be shot down and I think it was disgraceful that a civil airliner should be lost with that number of lives? Nevertheless, will the noble Baroness take into account that if the Soviet Union had really wanted to shoot down an aircraft regardless, they would have done it much more efficiently by using a SAM II missile from the Kamchatka Peninsula? Will the noble Baroness try to answer my first supplementary, which was: did she think it was consistent with a sincere desire for dialogue for Mrs. Kirkpatrick to go to the United Nations, use inaccurate and misleading transcripts and create the sort of atmosphere which is quite contrary to any desire for dialogue?
Baroness Young: My Lords, I was very pleased to hear what the noble Lord, Lord Beswick, said in the first part of that supplementary question, but I am sure he will accept that it will not be for me to explain American policy on this matter. It is for Mrs. Kirkpatrick to speak for herself. But, not surprisingly and like all other countries, the Americans were very disturbed that a civil airliner should have been shot down.

Youth Training Scheme: Participants
3 p.m.
Lord Gridley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many places on the youth training scheme have been filled.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): My Lords, at the end of October over 230,000 young people were on the scheme.
Lord Gridley:My Lords, I thank my noble friend the Minister for that Answer. May I ask whether the Government are satisfied with the programme so far, and how many people are envisaged as being eventually trained under this scheme? Is it in the region of 460,000 individuals?
The Earl of Gowrie: My Lords, yes. I think I can say—inevitably guardedly—that the Government are satisfied with progress so far. We anticipate that by the middle of this month nearly 300,000 young people will have entered the scheme. I cannot extrapolate further than that except to say to my noble friend that the intention is that all young people over 16 who choose to take a place should be offered one.
Baroness Seear: My Lords, does the noble Earl agree that there is very considerable concern—not least among employers operating the mode A scheme of YTS—at the failure to take up places? Will he say what steps are being taken by the Government to make sure that the public has a much better understanding of the difference between YTS and YOP and, in particular, that the schools have much better information? It is now quite clear that schools did not fully understand and were not in a position to pass onto their pupils the real advantages of YTS.
The Earl of Gowrie: My Lords, I am grateful for the noble Baroness's recognition of the real advantages of YTS, and it is the case that the Government and the Manpower Services Commission have lost no time in making schools, in particular, aware of the differences between this scheme and YOP. I am confident that these differences are realised. I think that more can be done in the way of publicity, and the Government are looking at that. Nevertheless, the take-up so far is encouraging. In so far as it has been slightly less than expected, it is also the case that there are now more real vacancies for young people than there were when the scheme was set up.
Baroness David:My Lords, is the Minister aware that a great many local authorities will find themselves in grave financial difficulties because of the MSC paying for places occupied and not for places prepared? For instance, I have the figures for Nottinghamshire. They prepared for 8,660 places and 4,660were taken up, so there will be a great shortfall in the fee income. They estimate that it might be as much as £600,000. Other authorities are in the same
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position. Can the Minister say something about that and about whether the Government intend that they should not go into penalty because they have overspent in this way?
The Earl of Gowrie: My Lords, I should have thought that local authorities all over the country would greatly welcome the fact that there are now more real employment opportunities for young people, though of course the training element in this scheme means that it will be possible for a young person to be both in employment and under the scheme at the same time, which is also I think widely welcomed. But I see no reason, if local authorities plan sensibly, why they should be in any difficulty.
Lord Hatch of Lusby: My Lords, I asked the noble Earl this question on an earlier occasion and he did not have the figures with him. I wonder whether he has them today. Can he tell us what is the percentage of places taken up, in comparison to the places that are available and the number of young people who are eligible to enter this scheme?
The Earl of Gowrie: My Lords, the reason I cannot do so is simply that it is very difficult to break down the employment figures in this way. The fact of the matter is that there has been a sharp improvement in the prospects of employment for young people over recent months. That still leaves a very great deal of difficulty for very many young people, and it is to them that the scheme is directed.
Baroness Masham of Ilton: My Lords, may I ask whether any young handicapped people have taken up places?
The Earl of Gowrie:Yes, my Lords. That is the case, though I could not give the noble Baroness precise figures. She and the House might also be pleased to hear that of course young disabled people can enter the scheme after the age of 18.
Lord Hunt: My Lords, is the Minister prepared to say whether the—certainly to myself—disappointing results so far are due, to any extent, to the reluctance of employers to take a full part in this scheme, as distinct from the reluctance of young people—if there is reluctance—to engage themselves?
The Earl of Gowrie: My Lords, I do not know of instances. I have to tell the noble Lord that employers are reluctant in this way. Certainly the Manpower Services Commission gives them a great deal of help over the scheme and its operation.
Lord Alexander of Potterhill: My Lords, I am sure the Minister will agree that the important point relating to this scheme is not so much how many take advantage of it, but what proportion of those who do take part in the scheme get a job afterwards. Can he give the House any indication of the proportion of those completing their training who are in employment three months later?
The Earl of Gowrie: My Lords, I wholly agree with the noble Lord in those sentiments. But of course since

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the scheme came on stream only on 1st September 1983, it would be too early yet to tell. I can say to the noble Lord, as I said earlier, that the prospects have slightly improved for young people, and that of course we all welcome though we want to see the improvement continue.
Lord McCarthy: My Lords, I have listened very carefully to the noble Earl. Does he say that he has actually answered the question of my noble friend, Lady David, who asked him whether the Government would compensate local authorities for the places which they have made available, when they will get money only if people take them up? If they do not take them up and local authorities lose money, will they be in penalty or will they be compensated?
The Earl of Gowrie: My Lords, it would be perfectly within the bounds of local authorities to operate this scheme (which they value, as the Government do) within their existing budgets.
Baroness Seear: My Lords, does the noble Earl agree that, while we are all glad that there are more jobs, it is highly undesirable to encourage youngsters to take up jobs which have no training element and will only lead to further unskilled work which is likely to diminish rather than to go into YTS? This is not widely understood and Government encouragement here is badly needed.
The Earl of Gowrie: My Lords, I think that we take the noble Baroness's point on board by stressing the fact that it is perfectly possible to be in real employment and to be in the scheme at the same time.
Lord Wedderburn of Charlton:My Lords, are the Government wholly satisfied with the legal status of a large number of young people in this scheme? In particular, are they satisfied about the way in which their status is at least doubtful, and about the fact that in many ways they are excluded from the employment protection and discrimination legislation? And—I am hoping that the noble Earl the Minister will not say that this is a different question—do the Government recognise that this at least is one disincentive in respect of the scheme?
The Earl of Gowrie: My Lords, I do not think that Governments, if they are sensible, are ever wholly satisfied about anything. But the fact of the matter is that the Manpower Services Commission operates the scheme in careful consultation with employers and with unions, and I have not noticed any volume of complaint along the lines that the noble Lord has outlined. I hope that the noble Lord will also attend to the possible disincentive employment effects of the kinds of legislation that he has mentioned.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lady Young will, with the leave of the House, repeat in the form of a Statement an answer to a Private Notice Question in another place on the situation in the Lebanon.
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It may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Committee stage of the Matrimonial and Family Proceedings Bill will be adjourned at approximately 7 o'clock for approximately one hour. The Second Reading of the Fosdyke Bridge Bill will be taken during this adjournment.

County Courts Bill [H.L.]
The Lord Chancellor: My Lords, I rise to move that this Bill be now read a second time. It is a straight forward consolidation Bill. There are 14 foolscap pages of derivations, so I will not tell the House exactly what is being consolidated. But it is straight consolidation, and if your Lordships give this Bill a Second Reading it will be referred in the usual way to the Joint Committee on Consolidation Bills. My Lords, I beg to move.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Equal Pay (Amendment) Regulations 1983
3.10 p.m.
The Earl of Swinton: My Lords, I beg to move that the House do adjourn during pleasure for a short interval.
The Deputy Speaker (Lord Aberdare): My Lords, the Question is, That the House do adjourn during pleasure? As many as are of that opinion will say, Content?
Noble Lords: Content.
The Deputy Speaker: To the contrary, Not-Content?
Noble Lords: Not-Content.
The Deputy Speaker: I think the Contents have it.
Noble Lords: Not-Content.
Lord Leatherland: My Lords, the Question was whether we should adjourn during pleasure. Does that indicate that we are very pleased with the fact that the noble Earl, Lord Gowrie, is missing from the Chamber?
The Earl of Gowrie: My Lords, I apologise—
Noble Lords: Order!
The Deputy Speaker: My Lords, the Question is, That the House do adjourn during pleasure?
On Question, Motion disagreed to.
The Earl of Gowrie The Earl of Gowrie rose to move, That the draft regulations laid before the House on 6th July be approved.
The noble Earl said: My Lords, I do offer to the House my apologies. I had to leave the House very briefly indeed, and the Lord Chancellor was too fast for me.
The subject of this debate is the draft regulations to amend the Equal Pay Act 1970. Your Lordships may know that these arise from the need to amend the Equal Pay Act to conform to our European obligations by providing for equal pay for work of equal value. The regulations are admittedly complex, but I shall explain why this is so, and the Department of Employment has prepared an explanatory note for general use. This is available in the House with the regulations, which were laid on 6th July last. I shall not now go into great detail about the procedure we envisage, but I shall of course respond to any questions which noble Lords may raise if, by leave. I may wind up.
Let me say at the beginning that the Government are fully committed to the principle of equal pay for men and women and are firmly against sex discrimination, including that which affects jobs and pay. We are committed to the implementation of the European Equal Pay Directive. We believe that our Equal Pay Act did comply with the directive and, as the Minister who at that time was most immediately concerned, that still remains my view. Nevertheless, the European Court found otherwise, and accordingly we accept the need to amend the Equal Pay Act so as to close the gap between the directive and our Act which was found by the European Court.
The European Court judgment obliges us to act without undue delay. The European Communities Act 1972 provides us with the means to do so simply and efficiently through regulations, and it is these that we are now discussing. I know that there has been criticism of the use of regulations because they cannot be amended by Parliament. However, we circulated them very widely in draft for consultation last February, and we have received a considerable volume of comment. A recurring theme in these comments is criticism of the complexity of the regulations. We acknowledge this complexity, but we argue that it is, unfortunately, unavoidable.
In the first place, a vague amendment will not do. We have to do justice to women at work to eliminate sex discrimination in assessing the value of work for the purposes of pay, but at the same time we need to allow employers a reasonable chance to defend themselves against claims which might be initiated for purposes other than to eliminate sex discrimination in pay. Secondly, we must bring our law into conformity with European law. This is an extremely tricky task, involving bringing into consistency two wholly differently conceived legal systems.
While, therefore, we have been confronted with the need for some complex and painstaking legal drafting, I can assure your Lordships that the operation of the new provision can be described fairly simply. The current Equal Pay Act allows a woman to claim equal pay with a man (or, for that matter, a man with a woman) if she is doing the same or broadly similar work, or if her job and his have been rated equal through job evaluation in terms of effort, skill and decision. But if a woman is doing different work from
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a comparable man or if the jobs are not covered by a job evaluation study, the woman has at present no right to make a claim for equal pay. This was the gap held by the European Court to be contrary to the European Equal Pay Directive, and the regulations we are discussing this afternoon amend the Equal Pay Act to give effect to the court judgment.
The regulations provide that women who cannot make a claim under the current Act may make claims to industrial tribunals that their work is of equal value. Women who may claim include those whose jobs are covered by a job evaluation scheme if there are reasonable grounds for thinking that the scheme is discriminatory. The tribunals will be helped by newly appointed experts who will furnish independent reports on whether the jobs compared are in fact of equal value. In equal value cases the regulations also allow an employer to argue that genuine economic considerations apart from sex justify unequal pay.
Could I give one or two examples of this? Let us suppose that a female clerk claims equal pay with a male computer programmer on the grounds that her work is of equal value to his. The employer might admit that the work is of equal value but might argue that he has to pay the computer programmers more in order to retain their services, otherwise they would simply leave for higher pay elsewhere. This is a perfectly valid reason for a difference in pay because it is not based on sex. Another example: local education authorities who need to attract mathematics teachers in shortage areas can offer them a lead in pay over other teachers starting their careers. This is to do simply with the shortage of maths teachers; it has nothing whatsoever to do with sex discrimination—and, of course, it applies to either sex.
I mentioned earlier that we had consulted widely about these regulations. A number of points were made by the Equal Opportunities Commission and others concerned that we might not meet our objective of complying with European law. There were three major criticisms. First, we had placed the burden of proving sex discrimination in pay on the woman. We have now removed this. Secondly, women already covered by a job evaluation scheme could not bring a case under the new equal value provision. We have now provided that if there is sex discrimination in such a scheme it will not prevent a woman bringing a claim. Thirdly, we had proposed that the new provision should come into effect twelve months after the Act had been amended. We now propose that it should come into effect from 1st January. I hope your Lordships will accept that we have taken our consultations very seriously and that we have responded most constructively to the criticisms made.
As a result of the changes I have just described, the Government are convinced that the regulations are now fully in accord with our European obligations. We have kept the European Commission informed, and took carefully into account their comments on our February draft.
In addition to the draft regulations now before the House, provision needs to be made for rules to govern the operation of the independent expert in the regulations concerning the procedure of industrial tribunals. We propose to lay such procedure

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regulations before Parliament very shortly. They will, unless rejected, come into operation on 1st January 1984. We issued draft procedure regulations for consultation on 6th September. Again we received a considerable number of comments. We have considered these comments most carefully, and in the light of them we propose to make certain changes. These changes have been incorporated in the revised draft procedure regulations and explanatory note which has been made available to the House. It may be helpful, however, if I detail briefly the major ones.
Again, there were three main criticisms. First, there was uncertainty about how the expert would work and whether parties to cases would have a chance to comment on facts and the representations of other parties. We have now altered the regulations to ensure that parties get such an opportunity. Secondly, there were anxieties that the independent expert report would be insufficiently open to challenge. Parties may now cross-examine the expert, call an alternative expert witness, and ask the tribunal to put written questions to the expert. Thirdly, there were anxieties that the tribunals would be likely to reject cases on an employer's defence that material factors justify unequal pay before the independent expert is commissioned. We have rephrased the regulations to try to limit instances of this to clear cut cases where it is obvious that the claims cannot succeed. I hope it will be quite clear from this how seriously again we have taken the process of consultation on the regulations.
I should perhaps add a few words at this point about the kind of qualities we expect in the independent experts. The experts will be designated by the Advisory Conciliation and Arbitration Service, and they will be expected to have experience in industrial relations. They will not be people who are experts in job evaluation only. There will be a duty on the expert to take no account of difference of sex and at all times to act fairly. ACAS will be looking for people with the necessary experience, and the proven integrity, to command the confidence of both parties and the tribunal.
It is obvious that the decision to award equal pay in individual cases may have collective repercussions. We have not however provided any specific mechanisms to deal with those. We did ask employers' organisations and others in the course of our consultations what they felt about the matter, and on the whole they took the view that no statutory provisions were desirable. The services of the Advisory Conciliation and Arbitration Service will of course be available in the usual way to parties who wish to seek their assistance for the resolution of collective disputes.
I hope it will be apparent from what I have said that our aim has been to implement the European Court's judgment, having regard to the need to comply with European law, while safeguarding employers from having to give equal pay where there is not sex discrimination. We have responded to criticisms from the Equal Opportunities Commission and others on both the amendment regulations and the complementary procedures, and those draft amendment regulations incorporate amendments which have been made as a result of comment and discussion during the consul-
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tative period. I commend the regulations to your Lordships.
Moved, That the draft regulations laid before the House on 6th July be approved.—(The Earl of Gowrie.)
3.23 p.m.
Lord McCarthy Lord McCarthy rose to move, as an amendment to the above motion, at the end to insert "but that this House believes that the regulations do not adequately reflect the 1982 decision of the European Court of Justice and Article 1 of the EEC Equal Pay Directive of 1975."
The noble Lord said: My Lords, in rising to move the amendment which stands in my name on the Order Paper, I should like to begin by congratulating the noble Earl on the superiority of his delivery and the degree of conviction with which he introduced this regulation over the way in which it was presented in another place by the Parliamentary Secretary at half past ten at night.
He said—and I agree that he meant what he said—that he was fully committed to the principle of equal pay. I cannot quite understand, however, on what basis he said that he was convinced that the Government, in following previous legislation, had already complied with Article 1 of the directive which says that equal pay shall be defined as,
"the same work or for work to which equal value is attached".
There is nothing in our existing legislation which covers equal value. What we have provided for is the same or like work. There can be no doubt whatever that without an effective amendment to the Equal Pay Act 1970 we shall be out of compliance with the EEC directive. Although I accept the noble Earl's sincerity when he says he believes in equal pay for equal work, I am a little a worried that he is still coming to the House and saying that he thinks we do not really need even the regulations and the changes to the Equal Pay Act 1970 which we have before us today.
Secondly, I cannot agree with the noble Earl's suggestion that he has met all the points. It is perfectly true that the Government have met many points—but then, a very large number of points were made. When the Government first published the first draft last year, considerable volumes of representation were made on the unsatisfactory nature of the draft regulations. The Equal Opportunities Commission made representations, the TUC made representations, the NCCL made representations, and the Select Committee of another place dealing with employment criticised the draft. The draft, which was then changed in a number of respects, was severely criticised outside this Chamber—as the noble Earl well knows—when it was first scheduled to be discussed in this House last October.
It is true that as a result of all those representations a number of changes were made. As the noble Earl said, the Government changed back the burden of proof. They removed the original delay of 12 months. They accepted—although not entirely satisfactorily—that an applicant can challenge an existing job evaluation scheme on grounds of discrimination. Most important of all, since the draft was placed before this House last October (and as the noble

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Earl said) very significant changes—which I welcome on behalf of this side of the House—were made in the procedural rules dealing with the role of the expert.
It is now clear that the expert can be cross-examined. It is now clear that the expert can be challenged by at least one expert witness. I readily admit that, in broad terms, those parts of the procedures now comply with at least Article 2 of the EEC directive and represent a fair judicial process. But that was not all we said. We said many other things. We did not simply say that we wanted to do something about the procedures. We said that we wanted to do something about the regulations themselves. I and my noble friends will no doubt mention many of the respects in which the regulations themselves, as against the procedures (although they are not completely correct and appropriate), are still defective. In the time available to me, I wish to deal with two of the major ways in which the regulations are defective still.
The first of these I call the device of the a priori pre-hearing pre-hearing. That is to say, that there is in these regulations set out in Paragraph 3, to provide a new subsection (3)(b) of the Equal Pay Act 1970, a strange kind of a priori special check before the process begins. Indeed, it is stated there that the tribunal can dismiss a case altogether if it considers that there are no reasonable grounds.
I wish to ask three questions about that point and I hope that the noble Earl will be able to answer them when he comes to reply to this debate. How does that strange additional pre-hearing pre-hearing relate to the existing pre-hearings which are perfectly normal in industrial tribunal procedures? It is now the case that if one of the parties before an industrial tribunal on an unfair dismissal case, let us say, asks for a pre-hearing to see whether there is a prima facie case, then that takes place. If it turns out that the tribunal believes that no case has been made, then the tribunal's members will report on that fact.
The difference is—and this brings me to my second question—that in the case of the present pre-hearings, the appellant or the defendant, if they want to, can say that they nevertheless want to go on to a full hearing. But that does not seem to be the case with this regulation. My question is: is this strange extra pre-hearing a substitute for the existing pre-hearing, and can it result in the case being dismissed without any appeal and without any reasons being given? What is the purpose of that strange procedure if it is not to make it much more difficult for any applicant to sustain a case?
Another question I should like to ask about the a priori pre-hearing pre-hearing is: what evidence can be advanced at this stage? Presumably—although it was not completely clear from the speech made by the Parliamentary Secretary in another place—one cannot really at this stage discuss whether or not there is in fact equal work of equal value. That would be to prejudge the work of the expert; that is his job; that is a question of fact; that cannot be rehearsed at the pre-hearing, can it?
So maybe the employer will be able to recite his defence. He will be able to say that, even if there is subsequently proved equal work of equal value, he has
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a non-sexist justification. What kind of evidence will he pray in aid at that point? And is he not in fact having two bites at the cherry? Cannot he try out his defence at this stage, at a time when the applicant has very little evidence to rebut it, and knowing very well that if he falls at this hearing he can come back subsequently if the expert decides in the applicant's favor? So why do we have this strange, weird, and, I am told by my lawyer friends, totally unprecedented a priori pre-hearing pre-hearing put into the regulation?
Secondly, I come to the nature of the defence, which comes up, I would remind noble Lords, in the third case. In the first case the applicant has to establish that she has a reasonable case under the new Section 2A(1)(a). Secondly, the expert has to come along and has to regard the work as of equal value and being paid less. That is the second test. Thirdly, the employer has a defence; he has to say, perhaps for the second time, that there is a difference which is not sex based. He then prays in aid a material factor defence which is not a material difference.
Now, what I want the noble Earl to tell me is how far this new subsection (3)(b) takes us beyond the existing defence in like work comparisons, which continues in the regulation and is provided in the new subsection (3)(a)? Because, as we know, the old defence to the like work comparison was narrowed significantly by the decision in the Clay Cross case. It was decided in that case that a material difference defence is restricted to what was called the personal equation; that is to say, it is not to include extrinsic factors, objective, measurable factors, such as length of service, level of performance, red circling arrangements and so on. Because to go further than that, said the court, would he to allow the employer to say, "I paid her less because she was willing to come for less". But, of course, if such an excuse were permitted, the Act, said the court, "would be a dead letter".
After all, those are the very reasons why there was unequal pay before the statute; they are the very circumstances in which the statute was intended to operate. The court said that if the employer was allowed to say, "I asked her to come, but for that sum, which was what she was getting in her previous job, because she was the only applicant for the job, so I had no option", then, if such an area were permitted as an excuse, the door would be wide open and every employer who wished to avoid the statute could walk straight through.
My question is, do the Government intend by the new subsection (3)(b) to allow the employer to walk straight through? If they do not, then what is the meaning of the statement made in another place by the Parliamentary Secretary to the Department of Employment about the "labour market defence"? He spoke as though the new subsection (3)(b) was to provide the employer with a very broad labour market defence. He said:
"What we have in mind are circumstances where the difference in pay is not due to personal factors between the man and the woman, but rather to skill shortages or other market forces"—
that is the significant phrase, "other market forces".
"If a man is paid more than a woman for work of equal value because his skills are in short supply"—
as the noble Earl suggested—

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"that is not sexually discriminatory, provided that the reason is genuine and the employer can show that".—[Official Report, House of Commons, 20/7/83; col. 486.]
What is meant by "other market forces"? If we are talking about skill differences, surely skill differences can be taken into account, if they are significant enough, in the job evaluation, if they are part of the job specification. But if the skill differences are personal they are surely covered by the Clay Cross rule. If, on the other hand, we allow general market forces, then we are allowing much wider factors to be taken into account.
What, after all, are market forces in this context? They are a difference in price, or pay, which is assumed to be due to a difference in the conditions of supply and demand. If one allows an employer merely to say it was due to market forces, and this is not examined by the tribunal, then it justifies any kind of discrimination or prejudice which is the result either of worker prejudices or employer prejudices, or both, if it is to be quite unexamined by the tribunal. But, if the tribunal tries to examine it on the basis of what the Parliamentary Secretary says, and to some extent what the noble Earl says, they may very well find that, in the short term at least, a shortage, for example, arises because there are no trained women to do this job or because there is a surplus because there are a large number of untrained, unemployed women; so they may say "Well, this is a market factor". But we all know, if we know anything about the labour market, that such shortages derive from earlier institutional or social barriers to the progress of women, their training, their appointment, their recruitment, their placement in the labour market. So behind these short-term market reasons are longer-term factors which most of us would say were at least partly sex based. Is the tribunal to be allowed to go into all of these; are they to be allowed to judge them and award accordingly? I do not think that is a practical way to look at it.
It is quite right, and I accept this, that a simple application of the like work test as developed in the Clay Cross case would take us further than recent European court decisions—for example, Jenkins v. Kingsgate. That went beyond the personal equation and suggested a commercial benefit to the employer kind of defence. But I suggest that, if that is admitted, it is not a general market defence. What is being said there is that one would need to look and see what the consequence of granting equal pay for equal value in this particular case would be for the employer's business—for example, for his pay structures, for his general structure of costs, for his industrial relations. These are internal factors which a court might be able to assess, but they are not the kind of general factors which the Parliamentary Secretary in another place says would be perfectly possible under the present regulation. Of course, they would be possible under the present regulation because it does not specify any grounds at all. It merely says you may use the defence which is used in the like work comparison, but then again you may not. So I am suggesting that the Government should, before they ask us to accept this order, modify that general passage and place in it some more objective, limited qualification.
I come to my final point, which is the question of the way in which this is generally related. We feel that this
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is a highly complicated and extremely difficult regulation to understand. We believe that, although the procedures are in many ways better than they were, there remain very considerable deficiencies in the regulations. Therefore, we shall be asking the House to divide. We shall be asking the House to support our amendment. We believe that, on the first major issue left, the Government have done extremely well. We believe that, on the second major question and the third major question, they have done virtually nothing. They do not provide in terms of the EEC Equal Pay Directive for the elimination of all discrimination on grounds of sex, and they do not provide even in the terms of Article 2 a solution by judicial process. Therefore, we ask the House to reject these regulations.
Moved, as an amendment to the above Motion, at the end to insert "but that this House believes that the regulations do not adequately reflect the 1982 decision of the European Court of Justice and Article 1 of the EEC Equal Pay Directive of 1975."—(Lord McCarthy.)

The Lebanon
3.40 p.m.
Baroness Young: My Lords, with the leave of the House, I should like to repeat a Statement now being made in another place.
"On 3rd December anti-aircraft guns and missiles were fired at United States reconnaissance aircraft over Lebanon. Early on 4th December United States aircraft bombed Syrian military targets in Lebanon. Two United States aircraft were shot down. Syrian losses have been reported as two dead and 10 seriously wounded. Last night eight United States marines were killed by shell fire. United States naval vessels then opened fire in response.
"We are in close contact with other contributors to the MNF. We share the objective of helping the Lebanese Government restore stability and create conditions in which the Lebanese people can themselves sort out their differences free from outside interference.
"All the parties welcome the role of the British contingent, which has the vital task of guarding the meetings of the Cease-fire Commission. The safety of our men is kept under constant review.
"It is vital that all parties in Lebanon show restraint and work together to make further progress towards national reconciliation. The cycle of violence must be broken".
My Lords, that completes the Statement.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Baroness for repeating that Statement. We also sympathise with the United States on the loss of eight marines killed in the shelling outside Beirut. However, does not the noble Baroness agree that the developments of the past 48 hours, where the United States and Syrian forces have clashed in the Lebanon, constitute a significant escalation of the conflict and that that could have far-reaching implications?
We welcome the assurance in the Statement that the Government are in close contact with the other contributors to the multinational force. Can the noble

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Baroness say whether this included consultations with the United States before its aircraft bombed Syrian military targets? Were we informed of this and, if so, what was the response of Her Majesty's Government? Moreover, will the noble Baroness confirm once again that the treaty governing the presence of British troops in the Lebanon permits their use only in the Beirut area? Will she assure the House that they will not be allowed to become involved in a wider conflict with Syria but rather that they would be withdrawn?
Finally, we support the plea that all parties in the Lebanon should show restraint. Does the noble Baroness agree that this is a further argument for a meeting between the leaders of the United States and Soviet Union? Will the Government use all their endeavours to bring about such a meeting?
Lord Kennet: My Lords, can the Government confirm that the greater part of Lebanon is under the military control of its two neighbours, Syria and Israel? Can they also confirm that Syrian forces are there by invitation of the Lebanese Government as members of an Arab League multinational force, albeit a shadowy one, and that the Israeli forces are there by right of invasion alone, and in defiance of United Nations resolutions?
Can the Government also confirm that the Western multinational force went by invitation to keep peace between the two sides? Now that Israel and the United States, bound together in a new alliance, have both attacked Syrian forces on the ground, what is the continuing purpose of the Western multinational force? Are the Government aware that as long as our little contingent confines itself to guarding the Cease fire Commission it will have the country with it, but if it is allowed to be dragged behind President Reagan in an attempt to expel Syria from the Lebanon it will have the country against it?
Baroness Young: My Lords, I thank both the noble Lord, Lord Cledwyn of Penrhos, and the noble Lord, Lord Kennet, for the way they have received this Statement? To answer the first question put by Lord Cledwyn of Penrhos on consultation with the United States, I can confirm that we were informed shortly beforehand, but, as he will understand, each multinational force contributor has the right to self-defence and to decide what measures it deems to be necessary.
It might be helpful if I were to set out once again the conditions for keeping our multinational force in the Lebanon because this answers a question put by both noble Lords. I should make clear that the presence of our contribution to the multinational force helps the Lebanese Government and the army. It reassures the Beirut public and helps to restore stability and to create conditions for reconciliation, which is what we wish to see.
We believe that our forces have been welcomed by all the communities and that they have an important role in guarding cease-fire talks. Further, I think that they demonstrate our commitment to promote peace in the Lebanon which is, of course, important for wider stability in the Middle East. It is something which has been welcomed both by moderate Arabs
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and by Israel. The fact that the Syrians are appreciative of our policies was made clear to my right honourable friend Mr. Luce on 4th December.
I have, of course, noted the concluding remarks of the noble Lord, Lord Kennet, and I should like to confirm what I have already indicated today, that we ourselves believe there should be a constructive dialogue with the Soviet Union and that is something we shall be continuing.
Lord Cledwyn of Penrhos: My Lords, may I pursue the point about consultation a step further in view of its importance, and in order that there may be no doubt about it? Is the noble Baroness saying that Her Majesty's Government were consulted by the United States about the proposed bombing but that the Government did not demur or object to this further escalation in the Lebanon? Is that the position? Is it also the case that the different parties to the MNF can, in fact, go off on adventures of their own without the agreement of the other parties? If so, that is a very serious statement.
Baroness Young: My Lords, the position is as I described it in my original answer to the noble Lord. We were informed by the United States shortly before it took action. But I must reiterate that each contributor has the right to self-defence and to decide what measures are necessary. In fact, in the case of the French retaliation we were not informed in advance. I can perhaps go on to confirm that there could be no possible use of the British forces unless the British Government wish them to be used in some way.
Lord Cledwyn of Penrhos: My Lords, is the noble Baroness saying that military aggression of the type involved in the bombing is self-defence in the terms of the understanding between the parties?
Baroness Young: My Lords, it is not for me to speak for the American Government in this particular matter. It was for the American Government to determine what they felt was right for their self-defence in the circumstances of the case.
Lord Mayhew: My Lords, does the noble Baroness agree that from the point of view of future peace keeping it is essential that the European countries at least should maintain the confidence of both sides? Will the noble Baroness reaffirm that, when the United States and Israel are engaged in hostilities with Syria and the Lebanese Moslems, the position of the United Kingdom is uncommitted to either side?
Baroness Young:My Lords, as I think I have already indicated to the noble Lord, Lord Cledwyn of Penrhos, the British contingent enjoys the confidence of both sides in this particular circumstance. On the question of consultations, I can confirm that there will be a meeting of the MNF Foreign Ministers in Brussels later this week.
Lord Mishcon: My Lords, would the noble Baroness agree that there can be no peace in Lebanon until all foreign forces have withdrawn? Will she further agree that there was a pact between the Israeli and Lebanese Governments which called for a withdrawal of Israeli forces, with which the Israeli Government have

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complied, and that that pact was subject to Syria also withdrawing? Is not Syria's failure to withdraw the cause of the present unhappy situation?
Baroness Young: My Lords, I should like to confirm that we see an urgent need for the full withdrawal of all foreign forces in Lebanon. At the time we welcomed the agreement as a commitment by Israel to the full withdrawal of her forces from Lebanon. Clearly there have been difficulties about the implementation of that. We should not object to alternative arrangements which had the agreement of all parties. We recognise the Israeli concern about security for her northern border. But what we really want to see is the withdrawal of all foreign forces from Lebanon.
Baroness Gaitskell: My Lords, in the muddled situation that we have in the Lebanon, are not the true enemies the Druze and the Syrians, and is it not really these people who have to be dealt with and not the Israelis or the Americans? It is these people, with Russia, who we think are our enemies and who are our enemies.
Baroness Young: My Lords, I should rather not be drawn down the particular path that the noble Baroness, Lady Gaitskell, has outlined. We believe that the majority of Lebanese share the objectives of President Gemayel to restore Lebanese independence and secure the withdrawal of foreign troops.
Lord Gladwyn: My Lords, rightly or wrongly the newspapers are full of rumours to the effect that, profiting apparently from the illness of President Assad, the American and Israeli Governments have come to some agreement to use force to compel the evacuation of the Lebanon by the Syrian army. While I have no reason to suppose that these reports are accurate, will the noble Baroness say that, if by any chance they are, the Government will make it clear at once that they are entirely opposed to such a dangerous policy, which could very possibly lead to an armed confrontation between the two super-powers?
Baroness Young: My Lords, I should not like to speculate on any view that the press may take now or some time in the future. Any agreements or arrangements between President Reagan and Mr. Shamir are for them. In the answers that I have given to the other questions I think I have made clear what is the policy of Her Majesty's Government.
Lord Paget of Northampton:My Lords, what we are concerned about now is surely the steps taken by our leading ally to protect its own troops. Is not our interest in that respect that it should succeed in protecting its troops? Will the Government make that point clear to them, and that this is not a carping expedition?
Baroness Young:My Lords, in my answer to the first supplementary question asked on this Statement I made it clear that each contributor to the multinational force—to which the United States is a major contributor—has the right to decide on its own
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self-defence and what measures it regards as necessary to achieve that end.
The Earl of Onslow: My Lords, can my noble friend possibly help us a little on this? Part of the instability of the present Lebanese Government is created by the 1943 agreement partitioning jobs between Sunni Moslems and Maronite Christians. The numbers in the population have changed very much since then. Can my noble friend confirm, or comment upon, whether any pressure has been put on President Gemayel by ourselves or, above all, by the American Government to make concessions to the Sunni Moslems, who I know feel threatened by the Maronite superiority in the present Lebanese Government?
Baroness Young: My Lords, as my noble friend Lord Onslow will be aware, there have been discussions in Geneva with President Gemayel on the future of Lebanon. We think that the majority of Lebanese share his objective of restoring Lebanon's independence and securing the withdrawal of foreign forces. There are differences between the parties over power sharing and institutional reform, but we believe that these need to be sorted out by the Lebanese themselves without outside interference. It is not for us to be involved in this. There has been some encouraging progress in the Geneva talks. Indeed, President Gemayel is to come here to see us in the near future with the object of discussing the reconvening of the reconciliation talks, which we must all hope will be successful.

Equal Pay (Amendment) Regulations 1983
3.56 p.m.
Debate resumed.
Baroness Seear: My Lords, I, too, should like to thank the noble Earl, Lord Gowrie, for introducing these regulations and for his explanation of the changes that have taken place in the procedural rules. There is no doubt that mark 3, which we have now arrived at in these regulations, is a very great improvement on mark 1 and an improvement on mark 2. In particular, we are very glad that the Government have seen fit in the procedural regulations to make it possible for plaintiffs to cross-examine the expert. The extraordinary proposal under the previous arrangement that an expert should give a report but should not be cross-examined by the tribunal was, I believe, contrary to all precedents as to the use of specialists in British tribunals or courts. So far so good, but I fear only so far.
One cannot but regret that the Government have not seen fit to withdraw these gamma 3 regulations which are again presented to us—and in my view gamma 3 is a rather generous marking for them. The complexity and inadequacy of the drafting, quite apart from the contents, alone justify a rewrite of the whole exercise. I should like to ask your Lordships to play the parlour game of writing down without consulting your neighbour what you think is meant by the new Section 2A:
"Where on a complaint or reference made to an industrial tribunal under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the

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tribunal shall not determine that question unless…it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned".
I am not a betting person, but if I were I should bet that no two noble Lords sitting on the same Bench would arrive at the same conclusion as to what that sentence really means.
When we recall that in an industrial tribunal there is no legal aid, and that the woman on the Clapham bus—if anyone ever travels on the thing, or, indeed, if there is one these days—is supposed to be able to interpret this kind of thing herself I think your Lordships will agree that this is not the kind of regulation which should be put on to our statute book. It seems tome that it is the greatest pity that, for constitutional reasons which I accept, we in your Lordships' House are unable to amend the regulations and to do a proper job as a revising Chamber in pointing out the inadequacies of them.
We are asked to accept not only the wording, bad though that is, but also the content of the regulations. The noble Lord, Lord McCarthy, has raised a number of points showing that the regulations are still inadequate in terms of the requirements of the European Court, let alone in terms of the requirement genuinely to introduce in this country equal pay for work of equal value. The noble Lord, Lord McCarthy, pointed out the possibility of introducing market forces in general as an argument against the case for equal pay for work of equal value, but if the acceptance of market forces were to become the general rule one would be driving a cart and horses through the whole principle of equal pay. Because women are confined to such a limited number of jobs, because they are unable to apply for many of the jobs, or are unsuited for them, very frequently there is a market forces argument that can be used. We have never accepted, upon the basis of like work or the Equal Pay Act, that the argument of market forces is by itself an adequate reason for an employer paying differently a man as against a woman. If that principle becomes enshrined, the regulations, far from taking us forward, would take us backwards in the whole application of the principle of equal pay.
Moreover, as I understand the new subsection (3), which deals with the matter of the material factor, it becomes easier for an employer to refute a case based on equal value than to refute a case based on like work, due to the difference in the word "must" in relation to the like work claim and the word "may" in relation to the equal value claim. Quite apart from whether or not that argument should be accepted, Article 1 of the directive surely makes it quite clear that it is the equal value claim which is the primary right, and that a claim based on equal value should certainly be as easy to establish as a claim based on like work. Preferably it should be easier: it should certainly not be less easy. If it is less easy to establish a claim based on equal value than one based on like work, how can the Government maintain that they are recognising the primary right of equal value? I believe that the regulation does no such thing.
Then there is the question of the tribunal being able to dispose of a case on the basis that there are no reasonable grounds for assuming that there is before it
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an equal value issue. The noble Lord, Lord McCarthy, has already dealt with a number of points in this connection, but I want to emphasise a point which I think he did not mention and which I believe was not mentioned in another place. "Reasonable grounds" presumably means that it strikes the common sense of the tribunal that it is ridiculous to go further with a case of this kind; that it is a matter of the common sense of a tribunal. But in a case based on equal value arising out of a job evaluation scheme, or concerned with the need to apply the principle of equal value, common sense will not be very much help, because common sense largely means what people accept as being reasonable in the light of ordinary practice, what most people would do. We are back to our man on the Clapham bus.
But the whole point about equal pay for work of equal value and the job evaluation schemes which will have to be used in order to implement it is that in some cases the results will be an affront to common sense, because they will be quite contrary to what in the past has been normal practice. That is what it is all about. That is why the equal value argument is a far more radical argument than anything that we have had up until now in the equal pay area. A great many of the decisions (or at any rate some of them) which will be made as a result of applying equal value will be an affront to the common sense of many people who have assumed the customary relativities in the traditional hierarchy inside an organisation, in which women appear very much lower down the line than do men. It will be thought that the situation will continue as before, but in fact it will not. The whole point about equal value is that it will reverse the pecking order at any rate in certain cases, and will not at first sight seem reasonable to a great many people.
Thus, so far from it being possible to introduce the argument about reasonableness before the case has been heard, as has been suggested, it will be more difficult, simply because the new system will bring about far more radical changes than have been brought about in the past, and it will not appear to the common sense of a tribunal that that is the way in which the matter should go.
Those are reasons—strong reasons, it seems to me—for saying that the regulation is inadequate in terms of Article 1 of the directive on equal pay and inadequate for the purpose of bringing about in this country a genuine system of equal pay for work of equal value.
It seems to me that it is a pity that the argument was not more about the matters to which I shall refer in a moment than about the details of the regulations. I do not deny that the introduction of equal pay for work of equal value is extremely complex and difficult, and will create a very great many problems. It is to that aspect that we ought to be directing our attention, accepting that it is right that we should go down this way but that it will not be at all easy. It will not be easy, first and foremost, because equal pay for equal value involves making comparisons across pay structures within the same organisation. That is very difficult to do, and it is fraught with difficulties in terms of industrial relations. That is why many of us have urged, and continue to urge, that the CAC should be

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brought into it because it has a degree of experience in handling these matters which nobody else has.
The noble Earl has told us that employers have been consulted and have said that they do not wish to have such an arrangement. I can only believe that many employers have not yet fully thought through the implications of the real application of equal pay for work of equal value. I think that they probably hope that it will just quietly go away. They may even hope that, given a regulation such as this, it will go away. But I assure your Lordships that that will not be allowed to happen.
Had I been concerned from the employers' point of view, I would have urged, first, the introduction of the use of the CAC, and, secondly, a five-year implementation period to get the scheme really right, for I do not believe that it will get right quickly, and I think that there may be very serious industrial relations problems arising from it. I expect that in the minds of many employers, and of the Government, there is a fear that the genuine introduction of equal pay for work of equal value will be inflationary. I say that because if women are given a rating equal to, or above, that of men, where previously they have been at a very much lower level, the men will, by a variety of devious means, try to recover their lost ground. That has happened in the past. I certainly do not put it past men, and the people who advise them in the trade unions, to turn a blind eye to that kind of devious attempt to recover their position.
It would help us greatly if the trade unions, which support the idea of equal pay for equal value, would say outright that they will not back any attempts to put the position into reverse when equal pay claims have been established. It would also help us greatly if the Labour Party would say that it will advise its colleagues in the trade union movement to do just that. I believe that it would make the genuine introduction of equal pay for work of equal value a great deal easier.
I should like to suggest one further point for consideration. I have a certain amount of experience in the whole area of job evaluation. I feel great apprehension at the idea of an individual job in an individual organisation taken out of context being considered by an industrial tribunal and then, perhaps, ultimately, from that tribunal, finding its way to the High Court. These are not issues that are best handled in that manner. I should like to urge—I hope that this would comply with the requirements of the directive, and it should be our purpose to see that it does—that we work in the direction of ensuring that job evaluation schemes are free of sex discrimination.
The Equal Opportunities Commission has already issued some documentation about schemes free of sex discrimination. Those schemes should be approved for a period of time. Once schemes are approved, with any conditions attached that it is agreed are appropriate, such as independent chairmen for appeals in the scheme, claims should be settled within that scheme, and only the scheme should be the subject of an appeal to the tribunal and not the individual case. If we did this, we would move much more quickly in the direction of genuine equal pay for work of equal value, and would do so in a manner that would cause far less disruption. As a by-product, we would greatly
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improve the quality of job evaluation schemes in this country.
4.12 p.m.
Baroness Platt of Writtle: My Lords, I must from the start declare my interest as chairman of the Equal Opportunities Commission, although it is not, of course, a personal or financial interest. The Equal Opportunities Commission has, as one of its duties under the Sex Discrimination Act, to keep under review the working of the Act and of the Equal Pay Act. Hence, it takes this matter very seriously. It would have been preferable if the draft regulations before us this afternoon had been in the form of a straight forward amendment to the Act so that it would have been capable of further amendment in your Lordships' House. As it is, we can only accept or reject these draft regulations.
The European Community has a long-standing commitment to the achievement of equal opportunities for men and women as laid down in Article 119 of the Treaty of Rome and subsequently updated in succeeding Council directives in 1975, 1976 and 1978. The European Court of Justice in Luxembourg gave judgment in July 1982 to the effect that the United Kingdom had failed to fulfil its obligations under the Treaty of Rome,
"by failing to introduce into its national legal system in implementation of the provisions of the Council directive of February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principles of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists, to obtain recognition of such equivalence."
This afternoon is for me an oxymoron, or what might be more easily described as the curate's egg—good in parts. The draft regulations put before us have been the subject of long negotiation between the Department of Employment and the Equal Opportunities Commission, and other institutions have also put their point of view. These negotiations were started before I became chairman of the commission by my predecessor, the noble Baroness, Lady Lockwood, and changes were made in respect of the date of implementation, the burden of proof and the matter of the existence of a job evaluation scheme not being discriminatory. For that, the commission was grateful.
The commission, however, is still very concerned about the operation of the draft regulations before the House today. Its first anxiety is that, although the burden of proof has been removed from the employee, there is still a difference in the test to be applied between applicants doing like work and for work rated as equivalent in Regulation 2(2). The commission sees no convincing grounds for the introduction of different tests and would prefer that the employer's defence remained the same for both, as it is at present in Section 1(3) of the Equal Pay Act. We are advised that the consideration of objective economic or commercial factors in accounting for differences in pay is, in fact, already a part of existing law as a result of the Employment Appeal Tribunal decision in the Jenkins v. Kingsgate case.
The commission's second objection to the regulations is directed to Regulation 3(1)2A1(a), about which lawyers are already arguing over the interpretation. I am only a lay person in this matter

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and feel rather like Alice at the Mad Hatter's tea party when,
"She felt dreadfully puzzled. The Hatter's remark seemed to have no sort of meaning in it, and yet it was certainly English. 'I don't quite understand you', she said, as politely as she could."
If lawyers are already not agreed, I feel that many applicants and small businessmen, who are potential respondents, will agree with Alice and will desperately wish, as I do, for the emergence of a new Sir Ernest Gowers, who believed in the importance of plain words. As Lord Justice Lawton said in the Clay Cross case;
"Parliament intended that industrial tribunals should provide a quick and cheap remedy for what it had decided were injustices in the employment sphere. The procedure was to be such that both employers and employees could present their cases without having to go to lawyers for help. Within a few years legalism had started to take over. It must be driven back if possible. If the wording of the relevant statutes has opened the door to legal subtleties, there is nothing the courts can do to stop what I regard as an unfortunate development. The remedy lies with Parliament".
We are concerned that Regulation 3(1) could be a hindrance to the applicant in obtaining access to the judicial process. The commission considers that industrial tribunals currently possess sufficiently wide powers to enable them to dispose of cases that are frivolous, vexatious or scandalous and therefore does not see the necessity for 3(1 )2A1(a), which could leave an applicant without right of appeal if her case was dismissed on these grounds.
The date of implementation has been brought forward to January 1984, which is an improvement, but there is no provision for applicants to claim two years' back pay, as there is under the present Act, until January 1986, a very long time after the European Court judgment in July 1982. For these reasons, members of the commission are concerned that the present draft regulations could fail to comply with European Community law requirements, although that is for the European Court itself to decide.
My right honourable friend Mr. Tom King, Secretary of State for Employment, made time to meet a delegation from the commission during a very full first week in office, for which we were grateful. At the meeting, we made these points and were disappointed that he felt compelled to adhere to the present draft regulations that had already been passed in another place. However, we then went on to discuss the attached procedural regulations that are not before your Lordships' House today but which have nevertheless been published and which are of great importance in connection with today's draft regulations.
We were very concerned that the proceedings in the industrial tribunal could be entirely dominated by the opinion of the expert, whose report at that time could not be subject to questioning by other experts nor indeed, except under certain circumstances, by the tribunal itself. As we said when we met the Secretary of State, we know of no other area of law in which the judgments of the expert witnesses are shielded from scrutiny in this way. My right honourable friend the Secretary of State listened with his customary careful attention to the various suggestions that we made for alteration of the procedural regulations so that they should pay closer regard to the principles of natural justice, and he had considerable sympathy. He
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promised to look at them again to see how they could be improved.
I am very grateful and pleased to say that my right honourable friend met our main points of dissatisfaction with the procedural regulations most generously and altered them accordingly. As my noble friend has said this afternoon, he took our representations very seriously indeed. The expert must now attend the hearing so that he may be cross-examined by the parties concerned, and they, too, now may each bring an expert of their own. He may now be required to explain any matter contained in his report and will have to incorporate in it the representations of one party on the representations of the other. They may also demand written replies from him upon which they can comment.
The material factor defence has been clarified in the procedural regulations by the removal of a double negative in Rule 8(2E). The tribunal is now also given discretion as to whether it will hear evidence upon the issue of the defence of genuine material factor whereas before it had to proceed to hear that evidence. That is a significant improvement. Most important of all, the tribunal now has the power to reject the expert's report even if the parties do not so request. It is a most important prerequisite of natural justice that the industrial tribunal, having heard all the evidence, should itself make the decision, and now the decision does lie in its hands.
In The Times last week I read that two Government departments, those of the Inland Revenue and Social Security, received awards for good, plain English and the simple attractive design of the forms that they had produced. In receiving the award on behalf of his department, my honourable friend the Minister for Social Security—himself for 20 years a schoolmaster teaching English—declared:
"It's a winner, this form. Only one person in 20 now has to come into an office for help in making their claim".
It is generally accepted that this legislation suffers from complexity of wording. There is still a chance for the department to win next year's prize for good, plain English as regards the explanatory document and associated paperwork. I hope that they will make every effort to win it.
There are also more hurdles put before the applicant in obtaining justice as a result of the regulations than there are in the present Act. The Commission feel that this will inevitably lead to protracted and costly litigation which will prove to be a drain on the resources of applicants, of employers, of tribunals and of the public generally. It is very difficult for ordinary men and women to understand, and will be a feast for lawyers—not the quick and cheap remedy for injustices in the employment sphere which Parliament intended.
We as a country, and indeed particularly the Government, are deeply committed to the European Community and intend to remain within it. The European Community has a long-standing commitment to the achievement of equal opportunities for men and women as laid down in Article 119 of the Treaty of Rome. It is important that the Government should make clear their support for that principle too—and I am glad that my noble friend did that this afternoon—and that they are not just grudgingly

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obeying the Community law. My honourable friend the Parliamentary Under-Secretary of State for Employment, in his letter to me of 24th November, when he explained the changes in the procedural regulations that the department proposed to make to meet our representations to the Secretary of State on the matter of natural justice, concluded his letter by saying:
"Finally, I should say that I accept the helpful suggestion you put to me…that in the explanatory document we should reaffirm our commitment to the principle of equal pay for work of equal value and underline our expectation that the procedures will be operated in a spirit which ensures that all receive a just hearing".
I was very grateful indeed for that statement and I hope that it is made absolutely clear to industrial tribunals in the guidance issued (as he promised) so that they have no doubt of the Government's intention. I hope then that industrial tribunals and their experts will interpret this law as fairly as possible, and will help both employee and employer to find a clear path of justice throughout their hearings.
Women today are increasingly going out to work and proving of great commercial value to their employers. Fair employers will pay them well, but they need means of redress against unfair employers. I cannot pretend that this draft order satisfies the Commission as it stands. The great improvement made by the Government in the procedural regulations is, however, a considerable step forward. I am glad that my noble friend stated quite unequivocally that the Government will now make it clear to all concerned that they wholeheartedly support the European principle of equal pay for work of equal value and, most important of all, will see that it is carried out in practice.
4.26 p.m.
Lord Denning:My Lords, when I sat in the Court of Appeal I heard most of the cases concerning equal pay for equal work which is prescribed by Article 119 of the Treaty of Rome and by a directive of the European Commission which laid down equal pay for work of equal value. Those enactments are binding on our national courts. Our national courts and tribunals must obey in the first place the treaty, and then the directives under it. We found in quite a number of cases—and one went to the European Court—that our legislation did not carry out the enactments in the treaty and in the directives. We quite clearly saw that the European Court would hold that our legislation did not conform to the treaty as it ought to have done. We foresaw what was going to be done by the European Court.
While the enactments of the treaty and the directives are reasonably clear and can be understood, our own enactments are deplorable, especially the Equal Pay Act 1970. We have suffered a large number of headaches in order to understand that statute. Its tortuosity and complexity is beyond compare. No ordinary individual can understand it. We in the Court of Appeal had the greatest difficulty. These regulations are no doubt a bona fide attempt to comply with the European Court's decision and with the directives. But they ought not to be so complex as all this. Ordinary individuals who are affected by equal pay for work of equal value ought to be able to read and understand the regulations. Not one of them would be able to do
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so. No ordinary lawyer would be able to understand them. The industrial tribunals would have the greatest difficulty and the Court of Appeal would probably be divided in opinion.
It is difficult to know what to do in this situation. I have wondered whether to give the Government credit for good intentions or to give the noble Lord, Lord McCarthy, and his colleagues credit for pointing out the tortuosity and obscurity of these regulations. I do not know upon which side to come down as regards this issue. These regulations have either got to be thrown out altogether or accepted, and, on the whole, I am not sure whether it would not be better to throw them out altogether and make those concerned think again so that we get something clear and intelligible which ordinary people and ordinary tribunals can understand.
4.29 p.m.
Baroness Lockwood: My Lords, I find myself in a very anomalous position because for over three years, as the noble Earl will appreciate, I have been pressing the Government to amend the Equal Pay Act to include equal pay for work of equal value. Now I find myself in a position where I cannot support the proposals which the Government are putting forward. I am very grateful to the Government for the changes which they have made since the first consultative document was put out, and I am equally grateful for some of the changes that have been made in the procedure regulations during the past week or so. However, I would suggest that it is no good concentrating on the procedure regulations. They are largely irrelevant until we amend the main regulations themselves.
I am very grateful to the noble and learned Lord, Lord Denning, for his forthright condemnation of the regulations as they are at present and for his request to the Government to take them back and bring forward something which is more in keeping with common sense and the general understanding of the public.
I think that there are a number of reasons why the regulations need to be changed. First, as the noble Baroness, Lady Seear, has said, European legislation provides for a primary right to equal pay for work of equal value. These proposals from the Government have hedged that right and have built in a number of obstacles. In the first place, they suggest that equal pay for work of equal value should be the third definition after the first two definitions of the present Act have been exhausted. But, more importantly, the regulations and the procedure regulations taken together provide a new set of procedures for equal value cases, and equal value cases alone.
The present procedures will continue to operate for equal pay cases under the definition of the same, or broadly similar, work or work which has been rated as equivalent under a job evaluation scheme. It seems that it would be possible to start a case under the present procedures and then to move over to a completely different set of procedures if one's case was transferred from being one of the same, or broadly similar, work to an equal value case. What kind of confusion will this bring, not only for the tribunals but for the individuals concerned?

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Then there are the differences in the proceedings for equal value cases under the new Section 2A, which gives the tribunal the power to dismiss a case without hearing the substance of the application. As other noble Lords have indicated, this is a new and additional power to the ones which the tribunals already have to warn against frivolous or vexatious cases or even to strike out a case in certain circum stances. In her remarks the noble Baroness, Lady Seear, made the point that in equal value cases we shall require a new approach to the traditional relativities. We are looking now at a completely new situation. I think that this will be particularly important in relation to this new power which the tribunals have been given.
The courts have already advised on equal pay and sex discrimination cases that a case should not he dismissed without hearing the two sides—in other words, without hearing the applicant's side and the defendant's side in case there should be defects in the defence. That applies under the present definitions of equal pay. But, under this more complicated definition of equal pay, the tribunals will have the power to dismiss a case without hearing the substance of the case. One wonders—and perhaps the noble Earl could enlighten us on this—on what grounds would an individual be able to appeal against such a dismissal of her case if she wanted to appeal before the EAT. It seems that there would be no grounds at all.
Then, as has already been indicated by noble Lords, we have the new Section 3 of the Equal Pay Act, which introduces a new material difference defence—a material factor, as it is now called, and a factor which my noble friend Lord McCarthy and the noble Baroness, Lady Seear, both indicated could nullify the effects of the equal value provisions.
I shall not go into the market forces argument in detail because I think that that has already been explained fully. However, in his remarks, the noble Earl the Minister put the emphasis on skill and scarcity of skills, whereas his colleagues in another place put the emphasis on market forces. I would suggest to him that it is possible to build the skill content into the equal value assessment. Indeed, in its consultative document in September 1982—the document which was the first contribution to this discussion on equal value—the Equal Opportunities Commission suggested that in equal value cases the material difference defence would almost disappear because the factors which, under the previous or the present definitions, might constitute a material difference—such as red circling, being a time-served apprentice, or even skill shortage, to which the noble Earl referred—would be built into the equal value equation. It is not so much that side of the question about which we need to be concerned, but we need to be concerned about the individuals, as in the case of Clay Cross, who are trying to sell their skills for a different price from that which women have traditionally been prepared to accept.
Therefore, we have this very difficult, complicated and, indeed, negative set of proceedings. These proceedings will have three consequences. First, they will defeat the object of the amendment by discouraging applications in the first place, as applicants will
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be both unsure of their rights and put off by the very complicated process to which they are subjected. Secondly, where cases proceed, they will be likely to involve complicated and expensive litigation involving appeals to the EAT, the High Court of Justice, this House and, of course, to the European Court of Justice, because Community law will be involved. The Equal Pay Directive, as well as our own amended Equal Pay Act, will be involved. If market forces are such that they can defeat the objective of our own Act, they will also defeat the objective of the Equal Pay Directive.
Thirdly, the complicated procedures will impose a further burden on the industrial tribunals. The noble Baroness, Lady Platt, referred to this and to the comments by Lord Justice Lawton in the Clay Cross case. It seems that the quick and speedy remedy which the industrial tribunals were established to mete out will be undermined by complications of this kind.
Therefore, I would hope that for all these reasons even at this late date the Government would feel prepared to take the regulations back and have another look at them. The Minister who succeeded the noble Earl as Minister of State at the Department of Employment suggested that the European Court had identified a small lacuna in our provisions. If it is only a small lacuna, the Government have constructed a very elaborate and complicated structure to bridge this small gap.
Seeing the noble Earl at the Dispatch Box reminds me, as he will probably be reminded, that we have been here before. Over three years ago, when he was at the Department of Employment and I was chairman of the Equal Opportunities Commission, I offered the advice of the Commission that our equal pay legislation did not meet European requirements. The Minister and his department disagreed. Subsequently we had the infringement proceedings against us and the judgment went against the United Kingdom Government. Recently we had a further set of infringement proceedings against the United Kingdom in relation to sex discrimination and equal pay matters. Again the judgment went against the United Kingdom. For a second time the legal advice of the Department of Employment was found to be faulty.
I suggest that if these regulations go forward we shall find, once again, that the legal advice of the Department of Employment has been seen to be faulty. I believe that these regulations can and will be challenged in the European Court. If the Government do not agree to reconsider them again today, I am afraid that they will have to have a subsequent look at them in years to come. I ask that the Government reconsider them before it is too late.
The Earl of Gowrie: My Lords, before the noble Baroness sits down—I am most grateful to her—may I point out that the Government are proceeding in the light of the full legal advice of their own Law Officers, not simply the law officers of one department?
Baroness Lockwood: My Lords, may I also include then the Law Officers as well as the Department of Employment.
4.42 p.m.
Baroness Hornsby-Smith: My Lords, I rise to support my noble friend on the Motion that he has presented to the House with his usual skill, particularly as it is a matter of great complexity, as many speakers have pointed out this afternoon. The Government have taken a more realistic approach to ensuring the introduction of equal pay than did the original decision of the EEC.
As a spinster who has worked all her life, I fully support equal pay for equal work, but it was not until I was elected to another place that I ever received equal pay. The debate today has spread a little wider than the limited basis on which both the EEC and our own regulations are based; that is, discrimination on grounds of sex. We may deplore the fact that the other considerations that come in—skill, experience and so on—are not provided for in the EEC measures, nor in our own. We are considering regulations which are based on discrimination on grounds of sex—claims by a woman against a man or by a man against a woman. There is no provision, of either authority, for a woman to challenge inequality in pay with another woman, nor for a man against a man. There is no European obligation to conduct an evaluation of two jobs where the difference in pay is genuine for a reason quite other than sex discrimination. Yet one can have "aggro" of a woman against a woman in a factory as one can have a man against a man. Anybody who thinks that does not exist is not living in the present world.
Members opposite, not least the present and former chairmen of the Equal Opportunities Commission, are seeking a judicial evaluation before the tribunal considers whether the difference in pay can be justified on other grounds. To accept this would be to turn this legislation as it exists in the EEC and in the United Kingdom on its head. Rightly or wrongly, it deals with discrimination on grounds of sex.
Your Lordships all know that thousands of pay agreements are worked out on the shop floor week by week with a variation for skills, the difficulty of the job and so on. They are worked out between the trade unionists in the factory and the employers. Indeed, the noble Baroness, Lady Seear, did not hesitate to point out that these problems would arise. To impose the procedure of a job assessment before taking a case to the tribunal would create a totally unnecessary disturbance to agreed pay structures and to industrial relations. A woman going straight to the tribunal would almost undoubtedly seek the advice and aid of her trade union. She will get sage advice about whether or not it considers that she has a case.
Job evaluation is not, and never will be, an exact science. Indeed, many Members have most frankly pointed out the problems that will arise. It is far more than the issue of sex. There are skills, long service and experience to be taken into account, and there is the shortage of certain skills and the value of somebody who can deal with one highly sophisticated piece of machinery and perhaps keep everyone else in the shop at work. That is not something one can just assess on the basis of "this man is doing a job" or "that woman is doing a job".
It is within the knowledge of everybody in this House that many United Kingdom industries are
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fighting for their lives against the fiercest competition. I have had some experience in the textile industry. I know the shop floor arrangements that are made week by week with the full agreement of the union and the employers. They have a fine record of being practically strike-free. To bedevil industries that are climbing their way back with negotiations after those shop floor negotiations and before going to the tribunal proceedings would I believe lead to chaos within stable pay structures, honourably negotiated within the factory between employers and unions.
My noble friend gave an example of someone punching a typewriter or punching a computer. The stenographer—I was one—may be faster than the chap punching the computer, but she is probably dealing with scripts that were provided for her, dictated or put on an audio machine. If the stenographer makes a mistake it will be in front of her to correct when she reads what she has typed. If a computer operator makes a mistake—many of your Lordships will have had comic bills, as I have—that can cause absolute chaos and probably requires more intense and consistent concentration.
I must give one more example of the tremendous difficulty of being too rigid. A newcomer in her mid-twenties arrived to join a team of five other people in a design department. Her skills in drawing, her skills in making a prototype, were quite comparable. But in six months three of that young lady's designs were snapped up by larger chains. She had, in short, flair far exceeding that of her companions, even though they might be years older than her. The ensuing orders enabled the firm to employ more staff. Technically, her male colleagues could have complained that she should not have her salary uplifted; but the choice of the employer was that, with three or four competitors trying to entice this brilliant young woman away, she was worth a boost in salary because of the orders that she brought in and the extra people that they would be able to employ. As the noble Baroness, Lady Seear, has pointed out, it is fraught with difficulties if we try to be absolutely rigid; because it can be for the benefit of employers and for the workers alike where flair or genius, extra effort or skills necessarily demand a differentiation. I think we have got to be wary of falling into the trap of legalistic rigidity.
On equal pay, frankly, I am far more concerned about the cheapjack operators who pay women working in their own homes an absolute pittance. Many of them, unfortunately, are immigrants who, because the average wage in their own country was £3 to £5 a week, think that £20 for doing a job for which they should probably be paid £60 is adequate recompense.
In our industries we are climbing back against enormous competition. I have seen the relationships and the day-to-day negotiations where the foreman works out the rate for this line of production of whatever it is—and particularly so in an ever-changing situation like a garment factory. I believe that my noble friend has struck the right balance in these regulations, which I fully support. I do not deny for a moment that the actual legislation, the EEC legislation and our own which followed it, is too rigid and has got to be considered at some time in the light of all the other factors which apply to equal pay, and not just

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that of sex. But for the moment, when we want to get these regulations in as early as possible in the new year, I believe the Minister has struck the right balance.
4.53 p.m.
Lord Wedderburn of Charlton:My Lords, since the European Court ruled against the United Kingdom legislation on 6th July last year, the Government have tried three times, if not four times, to get it right. On that evidence, looking back, one is bound to say—and I say it not in any necessary condemnation of the noble Earl, because the House knows that the noble Earl is deeply interested in this area—that the Government have not shown any great enthusiasm for the principle of equal value which they must now submit to and which this country is now obliged to adopt. It is a great pity that Community legislation on a matter of this sort has to go through this House and another place by way of regulation which cannot be amended. That deprives certainly this House and it may be, in certain senses, another place of any function in relation to it in terms of getting it right. I suggest to the Government in this respect that, because it is impossible to amend, the Government should pay more attention to argument today perhaps even than to votes.
If it be the case that the Equal Opportunities Commission, some of their noble friends and many different interests are still dissatisfied with this most important matter, then surely the Government should be prepared at any rate to think again on the arguments, whatever the votes may he. I accept that what is put forward now is better than the three previous versions, which (as the noble Baroness, Lady Seear, rightly said) were clear failures. Whether this is a pass or not, only the European Court will tell. I suspect that, as the noble Baroness, Lady Lockwood, has said, it will he there in not too long a time, because there are, I submit, four headings under which this legislation is defective.
The first is something on which nothing so far has been said in this debate—that is, that the new amendments say nothing about collective bargaining and collective agreements, whereas Article 4 of the directive clearly says that member states must take the necessary measures to ensure that provisions in collective agreements may be declared null and void if in conflict with the principles of equal pay. It may be said, and often is said, that this matter is dealt with by Section 3 of the existing Equal Pay Act 1970, which gives to the Central Arbitration Committee the power to nullify provisions in collective agreements if they offend the principles of equal pay.
But this was a golden opportunity for the Government to give a proper power to the CAC on this matter, more particularly because, in the case of The Queen v. The Central Arbitration Committee ex prate Hy-Mac in 1979, the Divisional Court has so confined the power of the CAC under existing legislation that the CAC cannot strike out any parts of collective agreements unless they are clearly and overtly discriminatory—and that surely is not the intention of the directive. The Government should, as the noble Baroness, Lady Seear, has said, have given a central role to the CAC; in this field. But the Government are not very fond of the CAC; it gets in the way of market
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forces that price jobs and price people into them and, more particularly, out of them. I will come to the CAC later.
The second reason why the House should reject these regulations if it had the opportunity is what I might call the absurdity of the employer's defences. It has already been explained in the debate that the employer has different defences in respect of the genuine material difference that may be proved in the case of a claimant in respect of a claim based on like work where the factor must be a material difference and a claim based now on equal value where it need be only to the effect that it may be a material difference. Why has that alteration been made to the law and is it in accordance with the directive? The first reason why it has been made, and this should be clearly said, is that it is the quid pro quo of the Government giving up what can only be called their impudent attempt to put the burden of proof on the claimant and to relieve the employer of it, which they tried to do, of course, in their early draft. Instead of doing that, and in the light of that improvement on the burden of proof, they have now put in this different defence for the equal value cases.
It is clear what the Government intend by this because the Under-Secretary for Employment, on 20th July this year, in another place said (in column 486) that the new defence would relate to the cases where the difference was—and I quote:
"due to skill shortages or other market forces".
Nothing has been said to withdraw that rationalisation or reason by the Government for these new defences.
It had already been explained to the Government judicially in the Court of Appeal in 1979 in the Clay Cross case which has already been referred to. I quote Lord Justice Lawton in a short passage which has not been put to your Lordships in this debate. Lord Justice Lawton said in that case in 1979 that the market forces argument was one in respect of which—and I quote:
"The European Court of Justice was most unlikely to evolve an exception"—
that is, a defence—
"based upon such a vague conception as economic factors or market pressures. To do so would strike at the object of the article. In the labour market women have always been in a worse position than men. Under both Article I 19"—
of the treaty—
"and the Equal Pay Act 1970 that was no longer to be so".
But under these regulations it is apparently expressly to be so.
One cannot look forward with great confidence to the ruling of the European Court on this matter. Indeed, the Government have gone very widely, as the noble Earl explained to us, in their consultation on legal questions. They recently had the incoming permanent Secretary at the Department of Employment consult Mr. Anthony Lester, QC, as has now been made public. Mr. Lester wrote in the New Law Journal on 28th October of this year as follows:
"the defence will swallow the principle of equal pay and allow the perpetuation of wage discrimination based on discriminatory market forces".
I say in passing in relation to those market forces that of course it is true that employers and men trade unionists sometimes go round the back of arrangements for equal pay. Of course, it is true; but I think it

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should be said, and I have no doubt that the noble Baroness, Lady Seear, would accept, that among those who have fought long and hard for decades have been many trade unionists in this country whose record is an honourable one in trying to achieve this particular objective.
In relation to the employer's defence of "material difference" it has been said by my noble friend Lord McCarthy that there are two bites at the cherry. It may be that there are three, if not four. This brings me to the procedures, because the argument that there is a material difference that is relevant in the claimant's case can clearly come up on the pleadings in what is called the pre-hearing assessment, which is the existing procedure. Secondly, it can come up in the new hearing under the famous Section 2A(1)(a)—the famous double negative provision—where a tribunal has to determine whether there are reasonable grounds for the complaint, it not being clear exactly what evidence is adducible at that hearing. Thirdly, it can come up at the substantive hearing before the industrial tribunal refers the question to the expert. Lastly, it can come up after the expert's report.
Why is it necessary to have all those parts of the procedure? Again, I put it to the Government that there is grave doubt in many circles whether the procedure regulations are even intra vires, whether the Act as it is proposed to be amended allows for a tribunal to determine a case on which there are reason able grounds—and, therefore, it has passed over that hurdle—but before it is referred to the expert after hearing the employer's "material difference" defence argument. And if it is not open, as the procedure regulations appear to allow, ultra vires, to the tribunal to do that, what is the point of allowing the employer to argue the case before it is referred to the expert? These are procedures which are extremely ill thought through.
Had there been a proper occasion on which to move amendments, I would have urged the noble Earl to look with us at the new procedure regulations, Regulation 7A and Regulation 8, because the noble Earl, quite candidly and frankly, put it to your Lordships that one cannot understand the new regulations which we are technically debating now without putting them into the context of the new procedures. What we are debating now is the skeleton; the new procedure regulations are the flesh and living blood. If one looks at those new procedure regulations one finds a point of departure where a party cannot call evidence on facts in relation to the expert's conclusions, and then seven qualifications, many of which qualify the other qualifications, and which show quite clearly that the Government have not gone back to the drawing board in their procedural regulations after changing the rules about cross-examination of the expert.
On procedure, too, how will these matters work in practice? Obscurity has been mentioned in the debate; and the other learned lawyer whom the Government arranged for the incoming Permanent Secretary of Employment to see was the Master of the Rolls—thereby, in my view, imperilling and risking a compromise of judicial figures with a current controversy, but nevertheless they did it—and Sir John Donaldson, said something with which I an sure most
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of your Lordships would agree. He took the opportunity, says the memorandum,
"of mentioning a different subject—his own concern with the obscurity of most labour legislation. He thought this a field where reasonable comprehensibility to the man in the street was of above-average importance".
Not only is this obscure but it also offends another principle. There is an old adage that, "justice delayed is justice denied". I have taken advice from many of those experienced in the practice of the tribunals. They tell me that the average tribunal case now takes eight to 10 weeks from the first application. But they were unanimous that under these revised procedure regulations an equal value case will take at least 26 weeks and more likely eight months or more. The reason is quite clear: it is because there are 10 if not 11 separate stages. First, there is the normal tribunal pre-hearing assessment; secondly, there is the normal attempt at conciliation by ACAS; thirdly, there is the new invitation to an adjournment, special to equal pay; fourth, there is the new preliminary hearing on whether there are reasonable grounds; fifth, there is the first hearing of the employer's defence on material difference or material factor; sixth is the new reference to the expert; seventh, the report back from the expert, which may be up to 42 days later, or more if there is the need for a new or amended report; eighth, there is the new hearing on the report; ninth, the second hearing on the defence of genuine material difference; and tenth, possibly at that hearing but possibly later, there is the substantive question, at long last, on equal value. After that comes the judgment and maybe a question of costs in certain cases, appeals and so on.
I suggest this is likely to be justice delayed and denied, at least to those 38 per cent. of applicants whom the Equal Opportunities Commission report showed last year to be unrepresented by a lawyer, trade union representative or friend in the tribunals. With that procedure, with this complexity and with these obscure regulations, for the complainants who come to a tribunal—helped as much as possible, I am sure, by the tribunal's valiantly struggling with this absurdly complex law—what hope is there for speedy and informal procedure and for a quick and cheap remedy which the tribunals are supposed to provide?
Lastly, there is a list of defects which could have been debated by amendment. For example, I am sure that the noble Baroness, Lady Seear, whom I have heard speak many times on this matter, would have wished to talk about the way in which the expert is told to go about his job. He is told to take account of effort, skill and decision, for instance—legislation by "for instance" is not a very good way of doing things but I suppose it is better than nothing. One wonders whether that is the best formula.
I turn to another, more important, matter, in my view. Those I have talked to about job evaluation always make the point that one of the ways you can get at the nub of the question is by going to the workplace and seeing what really happens. Indeed, the Industrial Relations Review and Report, a journal of some authority in these areas, on 27th September, put it like this on a previous draft of the regulations:
"It may be assumed the expert will visit the premises to see the jobs in actions but one would have expected an explicit provision allowing this to be done regardless of the parties' consent. Job evaluation involves seeing the work being carried out and it is hard

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to imagine how an expert refused access to the place of work could reach such a conclusion".
The Government may say that most employers would of course permit access. I expect they will; but have the Government forgotten the name of Grunwick? I am sure noble Lords on this side have not. What will happen when the errant employer, not devoted to the principle of equal value—if the noble Baroness who raised the point likes, perhaps in collusion with some workers—refuses access to the place of work? I ask that more particularly because (and this is a paradox of the Government's improvements) that employer can now bring along his own expert who has had access to the place of work as a witness at a later stage in the proceedings.
There is one body which does not have a place in any of the Government's proposals and that is the trade union. For all the faults of the trade union movement, I say that it has a part to play in this matter—a critical part, a part which would have been better played and more easily played, and which could have been played as a party in discussion and proceedings, if the Central Arbitration Committee had been made a central body in these procedures. Indeed, it is ironic that the noble Baroness, Lady Hornsby-Smith, spoke of the need to have regard to stable pay structures, to the general pay structure position, in regard to these complaints about equal pay and equal value.
It is interesting that in their report for 1982 the Central Arbitration Committee themselves, in paragraphs 3.11 and 3.12, pointed out that individual cases, however justified, could be a
"potential threat to the stability of the overall (pay) structure"—
unless one acknowledged—
"the wider collective issues that are at the basis of that structure".
They went on to warn that making the minimum changes necessary to remove individual discrimination could cause a considerable number of new anomalies and dissatisfactions, unless one looked at that pay structure as a whole, thereby displaying the sensible approach of the CAC to these matters.
But by insisting that the only channel for determination on equal value should be the industrial tribunal with its expert, and by attempting to relieve employers of the burden of proof and then to give them the special benefit of multiple and market forces defences, the Government have been led into amendments and procedures that are highly likely to be denounced by the European Court of Justice, which more than justify the very moderate terms of the amendment in the name of my noble friend, and I urge your Lordships to support that amendment in the Lobby.
Lord Mottistone: My Lords, before the noble Lord sits down, may I ask him whether I heard him say that he thought Grunwick was an example of experts not being allowed into a firm by the management? Was there any case of experts not being allowed into Grunwick?
Lord Wedderburn of Charlton: My Lords, I took the parallel that ACAS had certain powers to make
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recommendations in that type of situation, which they could most easily do if allowed to go into the workplace and consult everybody within the workplace. That facility was never given to ACAS in that case. It was one—only one—of the causes of the difficulty. It seems to me that a similar position might arise with the expert in this case, because he is an expert of ACAS and is appointed by the tribunal.
Lord Mottistone:My Lords, does the noble Lord really think that he can stretch wide and draw in a parallel which does not have any relevance and say that it does have some relevance, and thereby try to persuade us that the whole thing is upside down in that way?
Lord Wedderburn of Charlton: My Lords, I have obviously failed to make the point clear to the noble Lord. Let me try to do so in one sentence. If you are asking someone to do a job, to make an assessment of a situation, he ought to have the right to go in and look at it.
5.13 p. m.
Baroness Burton of Coventry: My Lords, as a layman admirer of the noble and learned Lord, Lord Denning, for a great many years, I should like to say how cheered I was to hear his remarks today and to listen to what he, with his great expertise, thought of the present business before us—a point of view which I thought was obviously held by the noble Baronesses, Lady Seear and Lady Lockwood. I should like very much to join them in that wish, I think expressed by most people in this House, that if it were possible to take these regulations away it would be a useful service to everyone.
I prepared my notes for this debate on the assumption that it would take place on 27th October. But I must say, having looked at what transpired in another place, it seemed most unlikely that the Government could expect a reasonable passage in this House, if a passage at all. The more I looked at it, the more unlikely this seemed, and obviously the Government reached a similar conclusion. As we know, the business suddenly disappeared from our Order Paper. Today, almost six weeks later, it has returned, presumably because ratification is required by 31st December.
But before moving on to that I have a bone to pick with the noble Earl, Lord Gowrie. I do not suppose that it is his fault, but he is in the unhappy position of replying for the Government today and I should like to know what he thinks about it. When I saw today's business on the Order Paper, I did what I expect most other noble Lords did. I went to the Printed Paper Office and asked for the new and current draft statutory instrument.
In my ignorance, while realising the peculiar constitutional relationship of this House with another place in so far as orders are concerned, I assumed that some way must have been found for making some alteration and I took the instrument home to study. That was a week ago. Perhaps this admission further illustrates my ignorance, but I was surprised to find no alteration at all—so much so that I came back to the Printed Paper Office the next day to ask whether they had

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made a mistake and given me the old instrument instead, as though our own Printed Paper Office would ever make such a mistake! Perhaps here I might, as it seems apt, pay a tribute to the wonderful service given to us by Mr. Fryers and his colleagues. I am now coming back to the noble Earl.
Anyway, there was no mistake. The instrument was exactly the same. What I did get were 17 pages of The Rules of Procedure, as amended. That was last Monday—a week ago. It seemed to me then, as a layman, that one needed to be at least a QC to understand what was set out in those 17 pages, so I decided not to waste my time. It is always sensible to realise one's limitations. Then, seeking sustenance from the wisdom of my noble friend Lady Seear, I produced my 17 pages. She did not have these at all. What she had evidently had to be added to what I had—and I thought that that at least moved me up to Lord Chancellor level! I hope that the noble Earl is listening, because this is important and I shall want an answer.
Today I was in the Printed Paper Office and, quite by chance, I saw Amendments to the Laws relating to Equal Pay, so I took them along to the Library. I thought that I had never seen anything like that before. But before tackling the noble Earl, I thought that I had better get my facts right, so I went back to the PPO and I asked, "Can you please tell me when this paper became available?" and they replied, "Only on Thursday or Friday of last week".
I do not think that is good enough. I think that those people who are expected to take part, and who would like to take part, in a debate should have this ready. I do not wish to accuse the noble Earl, but I think that this was produced only because the Government were hounded by the Printed Paper Office, who had been inundated by inquiries as to whether there was any information. Perhaps the noble Earl would comment on that.
Leaving those difficult matters for those experienced in the legal profession, I decided that it was sensible to stick to what I know, or at least to what I personally had prepared. In particular today, apart from the point which I have just raised, I have three questions for the Minister and if he can set my fears at rest as we go along that will at least be some measure of progress. They are three very simple questions. I shall not be long and I shall soon come to them.
Thirty-six years ago seems a long time and it is, of course, a long time. Yet in 1947 I wrote a pamphlet entitled What is she worth? Apparently, by 1983 we have not yet found the answer. I want to say straight away, as I think is obvious, that I do not think a great deal of the amendment to the regulations that we are discussing today and in this—as must have been obvious to the noble Earl, Lord Gowrie—I am certainly not alone. I think he has had one lukewarm appreciation, one semi-lukewarm and the rest of us are against. My feeling was summed up admirably in another place on 20th July by the Member who said that, if one considered the procedures set out in these regulations, their sole object appeared to be to deter the maximum number of applicants from seeking remedy, and to provide the greatest possible resistance to those who persisted. The Government must know
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that many people feel that the suggested revision makes it even harder to claim equal pay than did the original Act.
If we go back to 1975, the Act was hailed as a landmark. It was to close differentials between men and women doing similar work. But this did not happen. Only last year, in 1982, as the House is well aware, the European Court declared it to be inadequate. Is it inadequate? How justified are those who state that this amendment will make it even harder to claim equal pay than did the original Act? And what are the reasons for this attitude?
First, and speaking generally, women are not now getting equal pay without having to put up a fight. Many fewer applications are being made. I expect the House knows that these fell from 1,742 in 1976 to 39 in 1982. I understand that only two claims were upheld last year. Could we be told whether the remaining 37 failed or were not heard? That is the first question which I ask the Minister today.
The Under-Secretary of State had a stormy passage (if "passage" be the correct word) in another place when bringing in this amendment. Members seemed to object to it as much as do we in this House. The whole statutory instrument was described as legal gobbledegook, which neither the Minister nor Members could understand, much less any would-be claimant. If he would allow me to say so, in much better language that is what the noble and learned Lord, Lord Denning, implied today.
Mr. Alan Clark, the Under-Secretary of State for Employment, spoke of criticisms made by the Equal Opportunities Commission. Included in those criticisms was the fear that too much power was being given to industrial tribunals when judging equality cases. As the House is aware, tribunals at present can either rule in favor of an equal pay claim or reject it, but now it is proposed to give them a third option: namely, to rule that there are no reasonable grounds for determining the question. Several noble Lords who have spoken today have mentioned this point. It arises in Clause 3. It was argued at considerable length in another place, where Members felt that tribunals already have powers to deal with trivial, frivolous or vexatious cases. Could the Minister inform the House: where are the guidelines to determine what are and what are not "reasonable grounds"? Are there any? If not, surely the tribunals have a basis that becomes unchallengeable. That is the second question which I leave with the noble Earl.
I have a third question before moving on to a final point. I read in Hansard of another place for 20th July last about independent experts. They arise in this same Clause 3. Perhaps I might ask three detailed questions on this aspect. First, what weight will be given by the tribunal to an expert's report? Secondly, is the Equal Opportunities Commission correct in its belief that an equal pay applicant will not have the right to cross-examine the expert about the report or to call expert evidence of her own? It was felt in another place that this was far from clear. Thirdly, is there to be an opportunity for the claimant to challenge the reasoning against her case?
In conclusion, the more I studied the debate in another place the more unhappy I became. Those

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qualified in such matters felt it was entirely wrong to proceed by way of secondary legislation in a matter so complex as this. I believe that to be true and that there are many issues here which this House, too, would wish to debate. But what I believe to be even more serious is the contention made in another place that the Government, far from succeeding in their stated objective of bringing our law into line with that of the European Court of Justice, have failed to do so, with the result that we shall face further action from the court. We have heard that today from speakers in this House.
In introducing the Motion, the noble Earl, Lord Gowrie, was quite convinced that this would not be the case, but Mr. Hugo Young, writing in the Sunday Times on 24th July, said of these measures:
"In bare form, they comply with the European Court's judgment. But in practice this is rendered almost null by the small print".
Well, what is she worth? Going back those 36 years I see that my last sentence was:
"The point at issue is the problem of translating the political equality of the vote—gained after the first world war—into social and economic equality, which must be the next stage".
How old-fashioned and how true!
I was always of the opinion that we could not just let these regulations go through without some obvious protestation, whatever the constitutional issues involved, so we on these Benches shall support the amendment moved by the noble Lord, Lord McCarthy.
5.26 p.m.
Baroness Gardner of Parkes: My Lords, I find myself in a very difficult position today. I speak for many women and women's organisations who are not at all happy about the amendment of the regulations, the Motion which is before us today. I am pleased the Minister said that the Government are fully committed to this principle, but I do not believe the regulations bear out that commitment.
I am, perhaps, unusual in that I sit as a member of an industrial tribunal. I believe that very few Members of your Lordships' House are members of industrial tribunals. I was not allowed to sit as a member of an industrial tribunal for quite a long while after I was granted my peerage. The reason for the delay was that investigations had to be made into whether it was in order for me to do so. It took so long to get an answer that I feel I must have been the first test case.
For nine years I have sat as a lay member of an industrial tribunal. I am well aware of the complexities of the cases which come before us. I am also well aware of the fact that during those nine years I have heard only one case brought on the grounds of sex discrimination. At the conclusion of that case the representative of a major company in this country said, "We'll never have this worry again. We have reorganised our work structure so that there is no basis of comparison now". Sure enough, this is what has happened. Throughout most industries there has, I believe, been job segregation. The noble Baroness, Lady Burton of Coventry, referred to the very small number of sex discrimination cases which have been heard during the
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last year. The reason, no doubt, is that people who otherwise would have wished their cases to be considered have found themselves so re-classified or so reorganised within departments as to have no basis upon which they could successfully bring a case under the present regulations.
As the noble and learned Lord, Lord Denning, said, this will be an extremely difficult matter in legal terms. As I am sure all Members of your Lordships' House know, two lay members are appointed to industrial tribunals one from the trade union side and the other from the CBI. The chairman is always an independent and legally qualified person, of considerable standing. However, according to the noble and learned Lord, Lord Denning, somebody even more brilliant would be required to be able to determine the finer points of these cases. This causes me great concern. The lay members have only their chairman to look to for guidance on legal points. The lay members are there to assess the case in common sense terms and according to the facts.
The noble Baroness, Lady Burton of Coventry, asked what weight would be attached to expert evidence. I have no doubt that a great deal more weight would be attached to expert evidence if the expert had been allowed access to the property (a point raised by the noble Lord, Lord Wedderburn of Charlton) because the tribunal would consider that the employer was trying to hide something if he did not allow access to the expert. I do not consider that that is a point worth worrying about.
A great deal was achieved earlier this year when a number of the women's organisations met with the then Parliamentary Under-Secretary of State for Employment to discuss changes in this amendment. I was delighted that as a result of that meeting—a direct result, but as a result of other pressures applied, too, I am sure, through other women's groups and the Equal Opportunities Commission—the onus of proving the case was removed from the woman. That is an absolutely vital point. Had the onus remained on the woman to prove the case, it would have been almost hopeless. I cannot see how any woman could ever have won, because it would have been so difficult and she would not have had access to all the necessary documentation and facts. The onus of proof now being on the employer, that is a most valuable change from a woman's point of view.
The change was made also to provide that if there was sex discrimination in a job evaluation scheme a woman covered by such a scheme could still claim under the equal value provisions. The third point I thought was good was that all this was to come into force in January next. I am much less happy about the fact that any claims for compensation do not appear to be possibly backdated before January 1984. That is an unsatisfactory element, and it is a point that has been made by a number of speakers. I would also mention to my noble friend the Minister that when it comes to appointing experts I hope he will have an equal number of men and women among them, and thus set a good example in terms of having no sex discrimination there.
It is very important that guidelines of a clear and simple nature be produced. The complexity of this

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regulation has been made clear, but every person who considers bringing a case looks for a simple handbook to follow in learning how to bring their case and follow the procedure, especially if they are bringing a case for themselves. I would say to noble Lords here present who are members of the legal profession and who have represented such cases that I often think that cases in which there is no representation get the best hearing and the fairest hearing. Quite often, the panel of three find that the legal arguments going backwards and forwards between the two respective counsel can become very tedious. It almost reaches the point where they are overlooking the human being who is bringing the case and whose facts and situations should be heard. I do not see any difficulty as far as being unrepresented goes, provided there are excellent guidelines and procedure books available.
I was interested in the comment of the noble Lord, Lord Wedderburn of Charlton, that an estimated 26 weeks will elapse before a case can be covered. Our tribunal is a particularly efficient or rapid service tribunal, and we expect to have cases through in about four weeks at the present time. Our estimate is that the new procedure will take 17 weeks. The slight simplification in the procedural regulations today might reduce that 17 weeks, but it will still take four times as long as the present case which comes before a tribunal, so it is still a very lengthy procedure.
In respect of the phrase "material factor", those of us sitting on industrial tribunals recently underwent a training session at which we were addressed by a professor of law who made a great point out of the phrase "material factor". The word "factor", he said, meant something entirely different from a "material difference"; it was much wider and much looser, and could he much more harmful to the applicant. Although great comment has been made about "material difference", no one seems to have laid the same emphasis on the word "factor" which I see in the regulations and which the professor of law thought was so important.
I would also ask my noble friend the Minister—and this point has not come through quite so clearly to me in studying the document—whether it will remain necessary to have a man working somewhere in the company in order to bring a case. At the training session I mentioned we were told also that if there was no man working anywhere within the company one would still not be able to bring a case. I should like my noble friend to say whether or not that has been changed.
I must make it clear to your Lordships' House that women are still very anxious about this amendment and about the regulations, and they are also very disappointed that the main order has not been changed. I flew back from Paris specifically to take part in the last debate. It was a rather hazardous journey because an industrial dispute had cancelled my British Airways flight and I was made to queue for one and a half hours to get a "no show" ticket with Air France. I arrived in your Lordships' House just in time to discover that the debate has been cancelled. In fact, I thought that that was not too bad because it meant that the Government were taking the matter back to reconsider it. So I am very disappointed that the regulations have not been changed.
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Although I accept my noble friend's goodwill on the point that he believes in complying with European law, it would be very sad indeed if time passes and we find that that is not so and Britain is taken once more to the European Court and loses again. That would be most unfortunate, and I know that many other people feel concern about that point.
Having given my views on both sides of this matter, I feel that I cannot support the amendment of the noble Lord, Lord McCarthy. But it will take some very convincing arguments from my noble friend the Minister to cause me to support the Government on this matter.
5.36 p.m.
Lord Houghton of Sowerby: My Lords, the noble Lord, Lord Mottistone, and myself are the only two laymen in this debate. We have heard from the women and we have heard from my two visiting noble friends on this side of the House—the noble professors Lords McCarthy and Wedderburn of Charlton. They both have not been content to floor the Minister but they have driven him into the ground. We have heard also from the noble and learned Lord, Lord Denning, who has surely shown that the English language can be used to express principles and ideas, provisions and regulations in terms which people can understand.
If I may say so with respect to the noble and learned Lord, Lord Denning, the trouble about many of his judgments was that people understood them and agreed with them. It was only the lawyers who disputed them. The noble and learned Lord has cause to feel aggrieved at what this House has done to some of his judgments—but he is here with us tonight to play his part in overthrowing your Lordships' House.
The noble Earl the Minister said that the Government were fully committed to the principle of equal pay for equal work. Right! The noble Earl said the Government were fully committed to the principle of equal pay for work of equal value. Right! He then went on to say that the Government were fully committed to obeying the directives of the European Community. He added that he believed our legislation of 1970 and 1975 did in fact do that and was a little surprised to find that the European Court decided otherwise. Nevertheless, the noble Earl swallowed his disappointment and said that the Government are committed to complying with the judgment of the European Court. What, then, are we arguing about?
Surely all that stands between us are the words to be used and the provisions to be made in complying with the judgment of the European Court. That is all there is to it. That may be difficult and it may be complicated but it is not insuperable. We have passed the stage in this debate where the Minister can be further affected by the weight of argument; I believe he can only be impressed now by the volume of dissent. That is where the two laymen in this debate can perhaps add a little influence to the weight of argument that has already been imposed upon the Minister.
I am one of the few survivors of the signatories of the equal pay agreement of the Civil Service of 25 to 27 years ago. It was so simple then. In this vast public service of nearly 1 million people we found it possible to introduce equal pay on the basis of equal work.

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Admittedly, of course, in the organisation and grading and structure of a public service you have common grades with men and women with common duties, common lists for promotion. It was perhaps the A, B, C of equal pay. When we met difficulties, as in the case of the Post Office, we seemed to face them in simple terms. The women telephonists were not required to work at night. We said to them, "If you want equal pay you must work at night, whether your mothers or your husbands like it or not, and whether the wives of the male telephonists on duty at night like it or not. You must work at night. We will not impose it upon you because it is not in your existing conditions of service, but if you do it you will get equal pay and if you do not you will not. It is as simple as that. And for the future we will recruit on the basis that you work at night". I believe that is the last I ever heard of any real trouble in applying the principle of equal pay.
But in the public services there are no dirty tricks departments; they are all honourable men, and difficulties are overcome by negotiation. Surely most of the problems in industry, complex as many of them are, are overcome by negotiation, complying with the principles which have a superior writ in the field of employment. As I see it, the complications of this situation have arisen from adopting the principle of equal pay for work of equal value. Then you have to bring in assessment and rely on experts to advise you, and in examining the nature of the work done, evaluating it, in the jargon of the regulations, it is not only desirable, or perhaps necessary, to look at what is, but why it is, and should it or could it be different?
I think probably in industry it is possible to come across a good deal of contrived discrimination, contrived changes of work which favor the discrimination between men and women. Therefore, I think it is desirable to have in the evaluation process an examination of whether the premises upon which the differential in the pattern or processes of work which justified the discrimination are in fact justified. This may be a nuisance to an employer, but I think he has to be willing to defend—as, indeed, he is given an opportunity of doing—the differences in work processes as between the men and the women upon which he relies for the differences in pay.
I do not think that, in applying the principle of equal pay for work of equal value, any job evaluation which discriminates on the ground of sex can rest upon premises which are not justifiable. I think that is the essence of the matter. What the Minister has to satisfy the House about is whether that principle, among others, is firmly entrenched in the combination of the legislation and the regulations. The Minister cannot really feel satisfied about forcing these regulations through the House tonight in face of so much bewilderment as to what they mean, criticism of what noble Lords think they mean, and disappointment at what some noble Lords think they do not mean. In those circumstances the Government should be prepared to take them away and have another go.
That, I am sure, is the wish of the House, because those who may support the Government in the Lobby on these regulations surely cannot feel happy about them, they cannot feel convinced that this does what
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should be done and they understand is to be done. Goodness me, anybody who has spent his life reading the income tax Acts makes claim to a certain understanding of legislative complexity, but here one has only to see the regulations and really one wonders what words mean.
The Minister, I thought too briefly, in introducing the regulations, set about the job of explanation; he probably thought it was better to wait to hear it all and then deal with it at the end, so I think he has that task to come. If he is going to convince the House that these regulations should be passed tonight, then he has to convince us more than we are convinced at present that they are understood to do what we believe they should do, and nothing short of that can possibly give satisfaction. I hope, therefore, that the noble Earl the Minister will accede to what I believe is the will of the House. A little time may be lost, but better to get it right, even if we have another go, than do something which is inadequate and proves to be inadequate in the course of its application.
I do not think I have any more to say. I cannot vote for these regulations, and it is obvious that noble Lords on both sides of the House will not be able to do so either. If there is so little between us, if there is in fact nothing between us, is it not nonsense to go on with regulations which we are not satisfied apply what is agreed between us? That is my difficulty. If the Minister says, "I am in favor of this, I am in favor of that, we are fully committed to that, we are complying with the judgment of the Court of Europe", and yet when he produces the paper which does so he meets with all this difficulty, does he not want to overcome it somehow; does he not want to explain it or to replace it?
The Earl of Gowrie: My Lords, I am most grateful to the noble Lord for giving way. The fact of the matter is a little bit simpler than the noble Lord is describing. The Government thought that the legislation was fully in conformity; it was found not to be. They introduced proposals which were found unsatisfactory by various representations and bodies. They went away, as we are again being appealed to do, and thought again. They brought back proposals which have been widely welcomed by the bodies consulted though, understandably perhaps, they would like some other ones. All the weight of the Government's legal advice is that it is now in full conformity with the law as defined by the European Court. This is not really quite such a complexity as the noble Lord is making out.
Lord Houghton of Sowerby: Well, my Lords, I will not detain the House any further. It is obvious that the Minister has something more to say. I think I have made my point. I can only conclude by reinforcing the appeal I have just made to him. This House is noted for reaching agreement where accommodation is possible. I think that the attempt should be made, because it will be a great pity if this important addition to the regulations is issued in face of the discontent, and indeed positive dissent, of so many people who believe they understand them, who are not satisfied with what they read, and who are entitled to have their wishes met, especially if there is no real grievance to be overcome, no real difference to be overcome between the Minister and the rest of us.
5.50 p.m.
Lord Mottistone: My Lords, as always it is a privilege to follow the noble Lord, Lord Houghton of Sowerby, and I am so pleased. I had not spotted that he and I are the only lay contributors to this debate. There are other features your Lordships will see on which we are surprisingly well agreed, except that, having heard all the arguments and my noble friend's introductory remarks, as well as those he has just made, although the new regulations obviously are not satisfactory in several respects, they do—and I take my noble friend's word for it—legally meet the requirements of the European Court. Therefore, it would seem that a possible way through this is—and I strongly agree with the examples given by the noble and learned Lord, Lord Denning, that the actual wording is so abstruse, and has become more abstruse as it has been amended—that surely there could be an opening for clearing it up. Perhaps the Government could take advantage of the system of legislating by regulation. Many noble Lords opposite have objected to this, as I have for much the same reason when I was sitting on the Opposition Benches. But the system of legislation by regulation has the advantage that it can be further amended quite simply. Therefore, perhaps my noble friend will listen to the general theme of the debate and say to himself, "I got the message from all sides of the House that further amendments are necessary, but this has to be brought into force by 1st January 1984, so there is not time to amend it now. I will give full consideration to amending it thereafter".
If that is the case, he could go ahead with these regulations, which are all right so far as they go, and tell us that he will have another look at rewording them so that they make sense to the common layman. That is the key feature. If they are legal, fine, although I know that noble Lords opposite believe that they do not meet the European Court's requirements. The Government do. However, we are all agreed that, even if the Government are right, the actual wording—and I would go so far as to say the Equal Opportunities Act itself—is so unclear that the whole legislation requires reconsideration to put it in terms that ordinary people can understand. That is something that the Government could undertake, because it is ordinary people who have to understand it.
Having said that, I am concerned, as my noble friend is aware because we have exchanged correspondence, that there is still inadequate definition of what is "equal value", even if one accepts that Section 1 of the Equal Pay Act, 1970 must be tightened to meet the court ruling. Perhaps the pamphlet produced by the noble Baroness, Lady Burton, in 1947 gave a definition of "equal value". If so, perhaps she could give it to my noble friend so that he may learn from that. Loose definition and the reliance on experienced experts within the tribunal, like my noble friend Lady Gardner of Parkes, and in support of it, as is provided in the regulations, is perhaps acceptable if the law itself is sufficiently broad to allow for all the vagaries of real life employment situations. However, if the law must be tightened, as we are told by the European Court, then it must, but it can become unfair to some parties to potential disputes if the definition of "equal value" is not tightened in parallel. If it is not, I suggest that that is not good enough.
922
Here I tend to follow the same lines as the noble Lord, Lord Houghton of Sowerby, as the other layman. The problem that the European Court ruling has caused, remind me of difficulties that we experienced when introducing job evaluation for the staff of the Distributive Industry Training Board in the mid-1970s. Happily, both the employers' and the employees' side of the special committee that was set up to do this worked well together and readily obtained agreement on practically all the jobs. However, there were one or two on which there was great difficulty. I remember thinking. with regard to those job evaluations which were exceptionally difficult to fit fairly into the framework of our agreed joint evaluation system, "If only we did not have to start from here". However, these were not cases which involved any discrimination between the sexes. Indeed, we never had any difficulties of sex discrimination. I believe this was because we started the formation of the DITB's staff from scratch with the firm intention of making men and women eligible for each and every job. That is the key to the difficulty before us. Organisations starting from scratch with a deliberate policy of equal opportunity, or those which have introduced such a policy, do not have the problems of equal opportunity that others have. It is interesting that this very point was made by the noble Lord, Lord Houghton of Sowerby, and, if I now continue with my speech as I have prepared it, I go on to say, "I suspect, for example, that sex discrimination is not now a problem in the Civil Service because for many years it has adjusted to a policy of equal opportunities for women". That is exactly what the noble Lord, Lord Houghton, said just before I started my speech.
There are, however, many sectors of industry where discrimination on many grounds, including that of sex, has been normal personnel policy until very recently. Often the representatives of the workforce are even keener than the management to continue discrimination. Perhaps the noble Lord, Lord Wedderburn of Charlton, will agree with me on that. I was rather depressed to hear my noble friend Lady Gardner say that this is being continued by having a deliberate policy of job segregation. That seems to be a move backwards of the worst possible sort. It is not unfair to say that companies and other organisations which have not had a deliberate policy of equal opportunity will take a lot of time to get used to it, particularly if they do not have both sides of industry working towards it. It has been my experience that when this sort of situation occurs it can take up to 15 years, or half a generation, for attitudes to change.
There must be an impulse from the top to make sure that they do change. It is sad to realise that that is something the legislation of the past 15 years or so has not managed to achieve. In the meantime, one has to do one's best in adjusting the law where necessary. Thus, although I have my misgivings over the precise wording of the regulations, I accept that the Government are doing their best, so far as British law writing practices permit, gently to adjust to the needs of the times. I therefore propose to support my noble friend and not support the amendment in the name of the noble Lord, Lord McCarthy.
5.59 p.m.
The Earl of Gowrie: My Lords, this has been an extremely interesting debate; one of the most interesting I have heard in your Lordships' House. The difficulty is that all of us, wherever we sit in this House, tend to be swimming in rather unknown waters with this kind of legislation. As he has done so often throughout such a distinguished career, the noble and learned Lord, Lord Denning, put his finger on the dilemma. He was kind enough to accept that the Government's intentions on equal opportunities for women were good and worthy. Noble Lords on all sides of the House have been kind enough to echo the noble and learned Lord, Lord Denning, in that, and have also been kind to me in respect of my personal commitment in this area. As I said on another occasion in your Lordships' House, I appear at this Dispatch Box only by courtesy of the support of a full-time professional in the form of my wife. Otherwise, I should find it extremely difficult economically to work here. I certainly have an interest in this field of achievement and activity.
The noble and learned Lord, Lord Denning, while patting us on the back for our intentions, was worried about the complexity of the regulations. This worry has been echoed by almost every speaker in the debate, even those who, like my noble friends Lady Hornsby-Smith and Lord Mottistone—and even, though perhaps with more modifications, Lady Gardner of Parkes—have wanted to give the Government the benefit of the doubt. These complexities are not because the Government are trying to rush the regulations through, or because they have not had sufficient time to think them through. As I am sure the noble and learned Lord, Lord Denning, will recognise, the difficulty is that apparent simplicity can often mask real difficulty. In any case, the very concept of equal pay for work of equal value is simple only on the very surface. We may all think we know what it means, but it is clear from the enormous amount of discussion and consultation in which the Government have engaged that not everyone takes the same view as to what it may mean in practice.
This fact was echoed by my noble friend Lord Mottistone when he asked that its meaning be drawn rather more precisely. When I said that it was my view that the existing Act covered the European concept and the attitude of the European Court (which it is now clear I was wrong in thinking) what I meant was that we felt that our Act was drawn in terms of our legislation to give a fairly precise and narrow meaning as to what equal pay meant—a meaning that could be easily interpreted by courts and tribunals. But we found that we were wrong. The European Court took another view.
This very concept of equal pay for work of equal value is a very complex one in practice, as I believe the noble Baroness, Lady Seear, and others acknowledged. The noble Baroness acknowledged that whichever way the Government drew up the regulations there were bound to be difficulties and complexities in them when translated into practice. Against this background it has been the lot of Parliament to try to create a well-defined right which can be enforced with reasonable certainty and consistency. We accept that this effort
924
as led to complexity, but in our defence we would say that this complexity is inherent in the very right which we are seeking to give in response to the ruling of the European Court.
The noble Baroness, Lady Burton of Coventry, also expressed her dissatisfaction on these grounds of complexity. I say to her that of course it is difficult to lay down regulations that can be precisely defined. We will expect to see a body of case law emerging. Tribunals will need to judge the circumstances of individual cases, and in time case law will emerge. Where the rights of individuals are concerned, in any case, applicants will be able to appeal on any points of law to the Employment Appeals Tribunal.
We are also working on what I would call a child's guide to these regulations. I, too, am a lay person, and am much in need of a child's guide to most legislation. In preparing its revised guide and leaflet for employers and employees, the Department of Employment will have very much in mind the need to make clear and simple the admittedly complex provisions of the amended regulations.
The noble Baroness, Lady Seear, is an experienced and skilled old hand in parliamentary tactics. I say to her that it is possible to take almost any piece of legislation, read out one or other of its provisions and ask people to provide an immediate gloss on it. We have to accept that in spite of all that we feel about plain English and the work of the late Sir Ernest Gowers, parliamentary drafting is necessarily complex. It has grown up for successive Governments, therefore, to try to issue accompanying guides for ordinary people which do not have the force of the legislation but which steer nine cases out of ten in the right direction.
I have dealt, at least in a preliminary way, with what I think has been the substantive objection made tonight—the complexity of the regulations. It is a complexity which, as I said in my opening remarks, is really conditioned by the problems of bringing British law in line with European law. Now may I come to some of the particular difficulties which have been raised and put to me? The noble Lord, Lord McCarthy, raised two issues in particular. He asked how the power in Regulation 3 to throw out a case where there are no reasonable grounds for finding equal value fits with the pre-hearing assessment already provided. As he himself said, the pre-hearing assessment provided by the procedural regulations is no more than a warning to the applicant that to continue may bring an award of costs against him. The new power to throw out the case is in recognition of the fact that to allow a hopeless case to continue will be expensive and time-consuming for all concerned. I stress that it is only the hopeless case that will be excluded by this regulation. If there is any doubt, it must be resolved in the applicant's favor and the case will proceed in the normal way.
The noble Baroness, Lady Burton of Coventry, asked how many cases were heard by a tribunal in 1982. The answer—and it supports what I have just said—is that 39 cases were completed last year. In all, 13 were heard by tribunals; and two of these were decided in favor of the applicant. The remainder, or

925
26, were withdrawn by the applicant or were settled as a result of conciliation without reaching a tribunal hearing. I am sure that noble Lords and the noble Baroness will recognise that this is the best and most sensible way. We can be too legalistic about these matters. Tribunals will continue in most cases to help settle matters without recourse to legal or further legal procedures. I am sure that we should all wish that to be the case.
To return to the noble Lord, Lord McCarthy, he also referred to the new and wider defence of "a material factor". He seemed convinced that this would be bound to perpetuate sex discrimination in pay. As I thought I had made clear in my opening remarks, the defence is drafted in such a way that the employer can never succeed with an argument which rests on there being a difference of sex. After all, that sexual discriminatory element is what we are really debating tonight. In the case of Jenkins v. Kingsgate, which the noble Lord quoted, the European Court made it clear that European law acknowledges an employer's right to take account of non-discriminatory economic factors when settling pay. We, of course, agree with that and recognise the force of it. It would help no one if women should find themselves priced out of jobs by legislation which admitted claims not tainted with matters of sex discrimination.
It has never been suggested that the existing material difference defence allowed an employer to argue matters grounded in sex, whether directly or indirectly, and so I fail to see why the new test is open to that charge. All the new test does is to widen the scope of the arguments open to the employer. In devising the test we have had regard to Article 1 of the equal pay directive, which defines equal pay in terms of the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
The noble Baroness, Lady Seear, thought that it would be easier for the employer to use the material factor defence in an equal value case than in a like work case. That appears to be so at first sight, but in fact it is not so. In a like work case there is normally little room for a defence based on market forces, principally because like work is being done and the job in question is therefore not being done in differing economic circumstances. The very essence of equal pay for work of equal value is that comparison between different jobs to which differing economic circumstances apply is in fact possible. Because of that, and contrary to the noble Baroness's suggestion, it is important that employers should be able to argue that market forces account for the pay differential between the two jobs provided—and again I emphasise this—that there is no direct or indirect discrimination on the grounds of sex.
I am very grateful for the speech made by my noble friend Lady Platt of Writtle, who I think acknowledged that the Government had really gone to very considerable lengths to try to meet some of the objections made and the cases put to them. I believe that one reason for anxiety tonight has been imperfect recognition that we have already gone away and thought again about this question—and not merely within our own enclave, so to say, but in full consultation with nearly all of the interested bodies involved.
926
My noble friend also said that the case of Jenkins v. Kingsgate establishes that economic factors can be a defence for the employer under existing law, and of course that is so in relation to the particular facts to which the case applied. Nevertheless, our view is that the case does not mean that the employer would be able to use the wider economic factor defence in other circumstances—the other circumstances which we want to cover, which we must cover, in equal value cases. Our new provision gives wider opportunities to bring claims to equal pay with wider implications for pay structures and for jobs. The wider defence protects employers from ill-founded claims which are not based on sex discrimination. As I said in my opening remarks—and this, too, is a reason for some of the complexity of the regulations—we must protect employers from ill-considered actions of that kind.
The noble Baroness, Lady Lockwood, who again was kind enough to pay some tribute to the meetings that we had together when I was the Minister directly involved in these issues, asked me what grounds of appeal would there be from a tribunal's decision to throw out a claim. As I said earlier, there would be an appeal to the Employment Appeals Tribunal on the basis that the original tribunal had reached a determination which was contrary to the evidence, or where there was insufficient evidence.
I believe that this is the stage at which to reiterate to the noble Baroness, Lady Burton, who appeared cautious as to whether she was satisfied by my mention of these points in my opening statement, that we have now allowed the parties the right to cross-examine the expert and to bring their own expert evidence. I hope that from that it will be apparent that the expert can be challenged and that his report is simply evidence on the question of the value of the jobs at issue. It is for the tribunals to decide what weight to attach to all the evidence, and ultimately to decide the issue. As I have just said in response to the noble Baroness, Lady Lockwood, the applicant can go on from there to the employment appeals tribunal on a point of law.
I come to the speech of the noble Lord, Lord Wedderburn of Charlton. How it took me back to several summers ago when the noble Lord and occupied much of your Lordships' time together debating industrial relations matters. The noble Lord said that the regulations say nothing about collective agreements. It is true that the regulations do nothing to amend the exisiting provisions dealing with discriminatory collective agreements, but it was not our purpose to deal with that issue. Our concern, the concern of the regulations, was solely to repair the breach in our compliance with European law, which was made known to us at the earliest opportunity by the European Court of Justice. Our concern was not to repair any other breaches which may or may not exist in the legislation. There are ordinary, approved and time-honoured ways of doing that. If there are defects in the rest of the law, we can of course look at them in a different context. It would not be appropriate to do so simply to bring our legislation into line with the European Court's ruling.
The noble Lord, Lord Wedderburn, has again made much play with complexity, but this time not so much

927
complexity of the wording, but of the procedure, suggesting that there are too many stages in the procedures. I believe that the noble Lord exaggerates the number of stages. He said that in some instances there will be two stages, whereas there will be only one. Indeed, most cases will go through some of the stages only because there will be no application for a pre-hearing assessment or no material factor defence. Again, I refer the noble Lord to the answer that I gave to the noble Baroness, Lady Burton, in respect of our experience in 1982.
Finally, I wish to turn to the remarks on equal value made by my noble friend Lady Gardner of Parkes. Comparisons on equal value can be made between employees employed by the same employer or associated employer of the same establishment, or one where the same terms and conditions of employment apply. That is, of course. the same as applies at present under the Equal Pay Act.
As I said in opening, this will be a difficult area until a volume of case law has been built up, but this evening our aim has been solely to implement the European Court's judgment and to have regard to our need, which we fully acknowledge, to comply with European law. I honestly believe that we have achieved that aim. It has been our wish to do so. We have the greatest goodwill towards the European Court in respect of the matter. Every consultation has been held. We have amended our regulations in very considerable detail in response to anxieties that have been expressed. We have consulted the Law Officers of the Crown as to whether we are now in line with the European Court. It is their full advice that we are. I hope that noble Lords will not throw this difficult issue further into doubt by following the noble Lord, Lord McCarthy, into the Lobby tonight.
Baroness Lockwood: My Lords, before the noble Earl sits down, will he remove a misapprehension that appears to prevail among some members of your Lordships' House—namely, that there is a time constraint of 1st January for this regulation to get through? I appreciate fully that it is the Government's own reaction to the European judgment. But will he assure the House that we are under no compulsion from Europe to get the regulation through?
The Earl of Gowrie: My Lords, as I said in my opening remarks, Europe wants us to do this as soon as possible and the European Communities Act suggests that we come in line through this process of regulation in order that there shall not be undue delay.
6.21 p.m.
Lord McCarthy: My Lords, we have had a very distinguished, long debate. I do not wish to delay the House unduly. I think we can argue, on this side, that we have had the balance of the argument. We have certainly had the balance of the numbers. What we have been arguing can be summarised under a series of heads. We have been saying that this regulation is a miracle of complexity and obscurity and that simple men, and even non-simple men, cannot understand it. That is what the noble and learned Lord, Lord
928
Denning, said, as did the noble Lord, Lord Houghton, and many others. We have said that it is procedurally unfair and unbalanced. That is what, as I understand it, the noble Baroness, Lady Platt, said, and also what the noble Baroness, Lady Gardner of Parkes, said. It is especially so, I say, in view of what the noble Lord, Lord Wedderburn, called the double defence and what I call the a priori pre-hearing pre-hearing. We have said that it is of very considerable and unnecessary procedural length and will produce delay. It has also been said that there is now very considerable delay in hearing equal pay cases. Many Members of the House have made that point.
We have said that it is out with the EEC directive, particularly Article 1 and also Article 2. We have said that because of the material factor that is not a material difference, which allows the all round market defence, as stated in another place, it is therefore outside the EEC directive. We have also said that it does not refer to collective bargaining and that it rules out any productive role for the CAC. We have stated all these six or seven arguments as to how this regulation is unfair, discriminatory, complex and outside what we are asked to do by the EEC.
What has the noble Earl said? He told the noble Lord, Lord Denning, if I understood him, that these complexities were inherent and unimproveable unless we so narrowed the rights of equal opportunities that we were in a position where we were constantly challenged by the EEC. The House has to decide whether it accepts that. We do not accept it.
The noble Earl has promised us a child's guide to the future. But it cannot be a child's guide because it has to help the Master of the Rolls, the EAT and the industrial tribunals. They have to find their way through this extraordinarily complex piece of machinery. It will be a very adult child who can make head or tail of it. He told me that the pre-hearing pre-hearing is going to add to the existing pre-hearing, which makes it even longer. I repeat, "Why do we need it". What does it do that the pre-hearing does not do? And if it does something, why cannot one appeal against it? This is an unprecedented thing to put into a statute.
The noble Earl told me again that the material factor that is not a material difference will—he admitted it—widen the area of defence, but it will not let in sex discrimination. He did not tell me why it would not let in sex discrimination. He asked me to hope. The House must decide whether it can rely on that hope. He told the noble Baroness, Lady Platt, that there had been wide consultations on the regulation and that therefore we should accept it. The trouble is that most of the consultation produced a large number of groups, individuals and institutions who did not like the regulation. A large part of the criticisms remain valid because they have not been taken into account.
I would argue that virtually all the criticisms that have been mounted in this long debate have not been answered. So what are we asking the House to do? Let me first say what we are not asking the House to do. This regulation was passed by the Lower House. It is not our policy to invite the House to cancel, defy or reject regulations of this kind which are passed by the Lower House. What we are asking the House to do is something that we understand is quite normal and

929
customary practice—that is, to express a view. The objective of that view, if the House agrees with us, is, I suggest, that the Government should take some notice of that view and that they should take the regulation away. Of course, there are a wide range of things that they can do with the regulation. It is not for me to say exactly what they should do at this time of night. There are parts of the regulation that they could just drop—the pre-hearing pre-hearing. There are parts of the regulation that they could rewrite—the material factor that is not a material difference. They might decide to put something in. They might decide, indeed, to introduce a Bill if that is the way that they want to see it.
We are not saying how it should be done. We are saying that there are an overwhelming weight of thought and argument and, I believe, votes in this House to say that this regulation, as it is, will not do and will simply result in us coming back yet again, if not this year, then next year, or the year after, because the European Court has someone come before it to show that the regulation does not conform.
6.27 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 108, Not-Contents, 104.

DIVISION NO. 1

CONTENTS

Allen of Fallowfield, L.

Gladwyn, L.

Annan, L.

Glenamara, L.

Ardwick, L.

Graham of Edmonton, L.

Attlee, E.

Hale, L.

Aylestone, L.

Hampton, L.

Banks, L.

Harris of Greenwich, L.

Barnett, L.

Hatch of Lusby, L.

Beswick, L.

Houghton of Sowerby, L.

Birk, B.

Howie of Troon, L.

Bishopston, L.

Irving of Dartford, L.

Blease, L.

Jacques, L.

Boston of Faversham, L.

Jeger, B.

Briginshaw, L.

Jenkins of Putney, L.

Brimelow, L.

John-Mackie, L.

Brockway, L.

Kaldor, L.

Brooks of Tremorfa, L.

Kennet, L.

Bruce of Donington, L.

Kilmarnock, L.

Burton of Coventry, B.

Kirkhill, L.

Byers, L.

Leatherland, L.

Carmichael of Kelvingrove, L.

Llewelyn-Davies of Haste, B.

Cledwyn of Penrhos, L.

Lloyd of Hampstead, L.

Collison, L.

Lloyd of Kilgerran, L.

Cooper of Stockton Heath, L.

Lockwood, B.

Darling of Hillsborough, L.

McCarthy, L.

Darwen, L.

McGregor of Durris, L.

David, B.

McIntosh of Haringey, L.

Davies of Penrhys, L.

McNair, L.

Dean of Beswick, L.

Mayhew, L.

Denington, B.

Milner of Leeds, L.

Denning, L.

Mishcon, L.

Diamond, L.

Molloy, L.

Donaldson of Kingsbridge, L.

Oram, L.

Donnet of Balgay, L.

Peart, L.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Plant, L.

Falkender, B.

Ponsonby of Shulbrede, L. [Teller.]

Fisher of Rednal, B.

Foot, L.

Prys-Davies, L.

Gallacher, L.

Raglan, L.

Gardiner, L.

Rea, L.

930

Roberthall, L.

Stone, L.

Ross of Marnock, L.

Strabolgi, L.

Seear, B.

Taylor of Blackburn, L.

Sefton of Garston, L.

Tordoff, L.

Segal, L.

Underhill, L.

Serota, B.

Wallace of Coslany, L.

Shackleton, L.

Wedderburn of Charlton, L.

Shaughnessy, L.

Wells-Pestell, L.

Shinwell, L.

Whaddon, L.

Soper, L.

Wigoder, L.

Stallard, L.

Wilson of Langside, L.

Stamp, L.

Wilson of Rievaulx, L.

Stewart of Alvechurch, B.

Wootton of Abinger, B.

Stewart of Fulham, L.

Young of Dartington, L.

Stoddart of Swindon, L. [Teller.]

NOT-CONTENTS

Ailsa, M.

Long, V.

Allerton, L.

Lucas of Chilworth, L.

Atholl, D.

Lyell, L.

Auckland, L.

McAlpine of Moffat, L.

Avon, E.

Mackay of Clashfern, L.

Bellwin, L.

Macleod of Borve, B.

Bessborough, E.

Mansfield, E.

Broadbridge, L.

Margadale, L.

Caithness, E.

Maude of Stratford-upon-Avon, L.

Campbell of Alloway, L.

Campbell of Croy, L.

Melville, V.

Cathcart, E.

Merrivale, L.

Cockfield, L.

Milverton, L.

Coleraine, L.

Molson, L.

Constantine of Stanmore, L.

Monson, L.

Cork and Orrery, E.

Mottistone, L.

Craigavon, V.

Mountevans, L.

Croft, L.

Mowbray and Stourton, L

Daventry, V.

Nugent of Guilford, L.

Davidson, V.

Onslow, E.

Denham, L. [Teller.]

Orkney, E.

Drumalbyn, L.

Orr-Ewing, L.

Dundee, E.

Pender, L.

Ebbisham, L.

Peyton of Yeovil, L.

Elles, B.

Portland, D.

Elton, L.

Reigate, L.

Fanshawe of Richmond, L.

Renton, L.

Fortescue, E.

Rodney, L.

Fraser of Kilmorack, L.

Romney, E.

Gainford, L.

Rugby, L.

Glanusk, L.

St. Davids, V.

Gowrie, E.

Saint Oswald, L.

Gray of Contin, L.

Sandford, L.

Gridley, L.

Sempill, Ly.

Grimston of Westbury, L.

Shannon, E.

Haig, E.

Skelmersdale, L.

Hailsham of Saint Marylebone, L.

Spens, L.

Strathcarron, L.

Halsbury, E.

Strathcona and Mount Royal, L.

Hampden, V.

Harvington, L.

Swansea, L.

Hawke, L.

Swinfen, L.

Home of the Hirsel, L.

Swinton, E. [Teller.]

Homsby-Smith, B.

Teynham, L.

Hylton-Foster, B.

Trefgarne, L.

Inglewood, L.

Trumpington, B.

Kaberry of Adel, L.

Tryon, L.

Kilmany, L.

Vaizey, L.

Kinloss, Ly.

Vaux of Harrowden, L.

Kinnaird, L.

Vivian, L.

Lane-Fox, B.

Whitelaw, V.

Lauderdale, E.

Wise, L.

Lawrence, L.

Young, B.

London, Bp.

Resolved in the affirmative, and amendment agreed to accordingly.
On Question, Motion, as amended, agreed to.

Matrimonial and Family Proceedings Bill [H.L.]
6.35 p.m.
The Lord Chancellor: 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 Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD NUGENT OF GUILDFORD in the Chair.]
Clause 1 [Bar on petitions for divorce within one year of marriage]:
Lord Denning Lord Denning moved Amendment No. 1:
Page 2, line 4, leave out ("For").
The noble and learned Lord said: I beg to move Amendment No. 1. My amendment is very much connected with Amendments Nos. 2 to 5. It might be convenient if they were all taken together.
The Deputy Chairman of Committees: Yes, they can be debated together, but will be voted on separately.
Lord Denning: In those circumstances I shall speak to Amendments Nos. 2 to 5 as well.
Amendment No. 2: Page 2, line 7, leave out from ("obtained)") to end of line 14 and insert ("shall be repealed.").
Amendment No. 3: Page 2, leave out lines 9 to 14 and insert—
"Restriction on petitions for divorce within two years of marriage.
3.—(1) Subject to subsection (2) below, no petition for divorce shall be presented to the court before the expiration of the period of two years from the date of the marriage (hereinafter in this section referred to as "the specified period").
(2) A judge of the court may, on an application made to him allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent; but in determining the application the judge shall have regard to the interests of any child of the family and to the question whether there is reasonable probability of a reconciliation between the parties during the specified period.
(3) Applications for the presentation of a petition for divorce within the specified period shall be heard and determined by a Judge otherwise than in open court.
(4) If it appears to the court, at the hearing of a petition for divorce presented in pursuance of leave granted under subsection (2) above, that the leave was obtained by the petitioner by any mispresentation or concealment of the nature of the case, the court may—

(a) dismiss the petition, without prejudice to any petition which may be brought after the expiration of the specified period upon the same facts, or substantially the same facts, as those proved in support of the dismissed petition; or

(b) if it grants a decree, direct that no application to make the decree absolute shall be made during the specified period.

(5) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which occurred before the expiration of the specified period. ".").
Amendment No. 4: Page 2, line 11, leave out ("one year") and insert ("two years").
Amendment No. 5
After Clause 2, insert the following new clause:
("Application to court for financial orders.
.In subsection (4) of section 23 of the Matrimonial Causes Act 1973 after the words "from time to time" there shall be inserted the following words "and shall be exercisable on the application either of a party to the marriage, or in the case of a child over the age of sixteen, by the child".").
The existing law is that a petition for divorce cannot be presented within the first three years except in cases of
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exceptional hardship and exceptional depravity. On Second Reading it was quite clear that everyone agreed that that provision should be repealed. The one question for consideration this evening is what should take its place. I would like to suggest that there be no time limit at all, that a person can present a petition for divorce if the marriage has irretrievably broken down, as it might do within three months, six months or a year of the marriage. In making that suggestion I think I have the great support of the Scottish law and the Scottish Law Commission. The law in Scotland is that if there is an irretrievable breakdown of marriage, the petition can be launched within the three years or at any time after the marriage.
I should like to say as a matter of general principle that it is important that the laws of Scotland and England should be uniform on this matter. I know that, under the Act of 1707, Scotland had its own separate legal system and separate laws. But by judicial decision and legislation the two countries have come more and more together. For example, in regard to homicide and murder, Scotland, 100 years ago, had the defence of diminished responsibility. We followed Scotland's example just a few years back. Suicide was a crime in England until a few years ago—again, we followed Scotland in that respect.
As a matter of general principle, if these two countries remain separate it is easy enough for a couple who live and dwell in England to know that they must go to the divorce court in England and wait three years or whatever the period may be. But a couple married and living in Scotland may, if there is an irretrievable breakdown, go to the courts at once. I ask the question, what is to happen when an Englishman marries a Scotswoman, or vice versa, and the marriage irretrievably breaks down—which court are they to go to? Or, if one of them is living in Scotland and the other in England, which court are they to go to? To answer that question involves very complicated research into the Domicile and Matrimonial Proceedings Act 1973, because now a wife can have a separate domicile from her husband and does, and a person can live in Scotland and still have a domicile in England.
There are many complexities in the case of an Englishman married to a Scotswoman, and there ought to be none. Therefore, my first point is: remove all differences between England and Scotland in this matter. Marriage is being brought together. Long ago we did away with the smithy at Gretna Green. The Scottish law on marriage is uniform with ours. When we introduced the irretrievable breakdown of marriage as a ground for divorce, Scotland followed us. This is about the only matter of substantive law where there is a difference between England and Scotland. So my first point is that England and Scotland should be the same, because Scotland has tried it out.
In its report the Law Commission has drawn particular attention to the good working of the Scottish system, where there is no time limit. It says that only a very few marriages break down in the first two or three years. In my experience they break down only in extreme cases when the husband goes off with another spouse or the wife goes off with another spouse and perhaps has another child by him; surely the innocent spouse ought to be able to get a divorce. If they have

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to wait for three years, it only delays the divorce, it does not save the marriage. To wait for three years, two years, or even one year does not save a marriage; it only delays it. The Scottish experience shows that. Therefore, I would say that we should follow the Scottish experience, because that has been shown to be good, working well and apportions justice between the parties.
I should like to say how valuable are the reports of the Law Commission in showing all the arguments, pro and con. The only argument in favor of one year is that it is a provision which helps to stabilise marriage and gives the parties a better idea of the permanence of marriage. I do not think that that is legitimate or a good argument in the least. When people marry they do not contemplate separation. The Scottish experience shows this. This one year is simply something and nothing.
Perhaps I can tell the Committee how the original three years came into being. Before Sir Alan Herbert's Act of 1937 divorce could be granted only if there had been adultery. Noble Lords may not remember, but I do, the collusive divorces prior to that Act where, if the marriage had broken down, one of the parties would go to a hotel and give a faked hotel bill as proof of adultery when, in fact, there had been none. Then Sir Alan Herbert introduced his Bill giving cruelty and desertion as grounds for divorce.
It was at that stage that everyone thought that divorce should not be made too easy and so the three-year period was introduced. That is how that provision came into being. Now we have got rid of all those provisions. They have been replaced by a new principle—the irretrievable breakdown of marriage. That old three-year limitation has gone in logic completely, and it seems to me that that applies equally to two years or even to one year. Therefore, I should like to suggest that we simply repeal that old, out-of-date provision, and put no new limitation in its place, not even a limitation of one year. I recognise the force of what the Law Commission has said, but I do not think that we should have even that one year. I think we should leave it, and at the same time bring the law of Scotland and the law of England together. I beg to move.
Lord Elwyn-Jones: The noble and learned Lord, Lord Denning, has suggested—and I think helpfully—that we should discuss together (but, of course, they will have to be divided upon separately) Amendments Nos. 1 to 5, which it falls to us to consider. The noble and learned Lord has greatly emphasised the complexities which will arise if the law of Scotland is different from that of England and Wales. Unhappily, that conflict has arisen frequently in the past in the realms of crime, family law, civil law and in many other ways. Somehow the amity between the two nations and peoples has survived, and I have little doubt that it will survive again if we have a difference in this important field of the Matrimonial and Family Proceedings Bill.
We have here a difference of opinion, and I suspect that there will be no great feeling of dogmatic conviction on any side. One view is that there should be no restriction whatever in terms of time; that is to say, there could be proceedings for a divorce within
934
weeks or even days of the marriage taking place, and all would be well, all would be happy. The other view which the Bill takes, which I confess I take and which the Law Commission took, is that there ought at least to be some interval before the plunge into divorce takes place. The majority of marriages are between the fairly young, and perhaps it is a conviction and a weakness of old age which seems to think that a little waiting time would be very good. It is certainly my view, and it was the view of the Law Commission, that there should be a reasonable interval in order to decide whether or not the marriage has irretrievably broken down, and that there has not just been a quarrel or a crisis about this or that difference. I, personally, would have thought that a year was a reasonable interval in which to enable the parties to decide whether that is so one way or the other.
The noble Lord, Lord Robertson of Oakridge, moved towards a suggestion of two years. That is twice as long as one year, but I should have thought that the conclusion of the commission and of the provisions in the Bill was satisfactory. No great difference of principle arises between one year and two years. It is just a judgment—I hope a sensible one—of how long the time should be.
Amendment No.3, in the name of the right reverend Prelate the Bishop of Rochester, again proposes a two-year period, but then maintains what has been almost universally condemned—certainly by the judiciary and elsewhere—that if a party wants to petition for divorce within those two years, the husband or the wife can do so if he or she can show "exceptional hardship or depravity". The strongly expressed view has been that such applications, even if made in closed court, would only increase the mischief between the parties. To do so in closed court would certainly not eliminate the mischief, the bitterness and humiliation which could arise if those issues are to be fought again, which could well prejudice any reason able settlement between the parties about financial provisions and arrangements for custody of and access to the children. Therefore, my view, which I express in regard to that matter in a somewhat dogmatic way, is that that would be a retrograde step and contrary to experience in the courts and elsewhere. We have no whip on in this debate; the vote is a free vote, and accordingly I support Clause 1 as it stands.
The Lord Bishop of London: I rise to support Amendments Nos. I and 2, in the name of the noble and learned Lord, Lord Denning. I much regretted that I could not be present for the Second Reading, but I had to be in Jamaica for the centenary of the Province of the Church of West Indies. However, I have read the debate carefully and can appreciate the difficulties which a three-year time bar has created for the administration of justice. I must admit that I find the arguments in favor of the one-year time bar less than convincing.
The Lord Chancellor: I am so sorry; I was consulting the learned Clerk on a point of order. I apologise for interrupting the right reverend Prelate. It was very rude of me, but I had to know what to do next.
The Lord Bishop of London: If I may, I shall continue. I thank the Lord Chancellor. I find the arguments in favor of a one-year time bar less than convincing, and certainly not such as to convince me that there are reasons why the Scottish practice should not be adopted here.
I agree with what the noble Baroness, Lady Macleod of Borve, and the noble Lady, Lady Saltoun, said about the effect on the understanding of marriage which the reduction in the period of the time bar might have on the expectation of marriage when it is undertaken and on the willingness to work for the success of a marriage. I remind your Lordships that that willingness is necessary in all marriages, and not just in certain marriages which are difficult. I must confess to a certain sense of disappointment on reading the debate that comparatively little was said about this aspect of the matter. Much was said about the administration of justice, which I accept and appreciate, but little was said about the effect upon public opinion of what is proposed in the Bill. However, if the three-year time bar is not to be retained it would seem to me much better to have no time bar at all. That would resolve the judicial difficulties which are pleaded as a reason for its reduction. But it would also avoid giving the impression that one year is an adequate time in which a couple can and should judge whether their marriage is to be a success. With all respect to the noble and learned Lord, Lord Elwyn-Jones, I think there is a great difference between one year and two or three.
I hope that we all here desire to encourage the stability of marriage. I do not believe that the introduction of a one-year time bar would do that, but rather the reverse. Putting into people's minds the notion that within the first year the marriage must show all the signs of a lasting relationship and if it does not it can be ended forthwith, can only undermine this essential and God-given institution. Two years is a lot better than one. It is difficult to say why. but I maintain that two years is better not merely in degree but in kind. The noble and learned Lord, Lord Elwyn-Jones, used the phrase "a reasonable interval". I would suggest from my not inconsiderable pastoral experience of dealing with marriage problems and with education for marriage that a reasonable interval might be two years. I do not think it could be one year. It takes that time to get used to being married, however good a marriage is.
In his opening speech on the Second Reading the noble and learned Lord the Lord Chancellor spoke of the Scottish practice and said:
"the Scots would not be particularly complimented by the implied criticism that they are less zealous than the English for the Christian religion and doctrine, the stability of marriage or the sanctity of family life".—[Official Report, 21/11/83; col. 33.]
I quote those words in my own defence now as saying that in pleading for the abolition of a time bar I do not believe that I am in any way undermining the institution of marriage, but rather the reverse. The noble and learned Lord then went on to point out that the Scots have facts on their side as illustrated by the graph on page 56 of the Law Commission Report.
When I come later in his speech to his arguments in favor of the time bar I find what he says far less convincing. He says:
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"a reduced time bar will not in fact impose intolerable hardship and is unlikely to operate at all, except in a relatively insignificant minority of cases".
If it is only for an insignificant minority of cases, why do we need it? He goes on to draw attention to the fact that the Commission originally sounded a rather uncertain note in its consultation paper, and he says:
"I believe with their final report that an absolute bar for one year is the right rule for England and Wales. Otherwise I must say at once that I would get rid of it altogether and conform to the Scottish practice".—[cols. 33–34.].
I find it hard to see convincing reasons why we should not conform to the Scottish practice, and I find the arguments in favor of the Scottish practice by the noble and learned Lord the Lord Chancellor much more convincing. I hope that he might accept the force of his own argument in favor of Scotland and give a lead to your Lordships in supporting this amendment.
Baroness Lockwood: On Second Reading there was great concern in all parts of your Lordships' House not to diminish marriage as an institution, nor to do anything that would encourage the break-up of marriage. I think the one-year bar in itself diminishes the institution of marriage. I do not think it gives the parties a sufficiently long time to work out the marriage and to make sure that the marriage will continue. But it is difficult for us to determine just how long is required to make a successful marriage. The marriage itself and the two parties involved should be the determining factors. We should concentrate on the quality of the marriage. Therefore, in that sense I support the amendment in the name of the noble and learned Lord, Lord Denning. This puts the onus and responsibility on individuals to ensure that their marriage will continue.
I say to those noble Lords who feel that a time bar should be imposed on the institution of divorce that, whatever the time bar, it does nothing to discourage the break-up of marriage itself. In the few exceptional cases which occur in the early stages of marriage, I think it would be much better if those individuals could have a clean break rather than that we should impose upon them a bar of any period. I support the first amendment.
Lord Robertson of Oakridge: I rise to put the case for a two-year time bar. I enter your Lordships' discussions with considerable trepidation. I find much in the Bill to welcome, and I accept that it is largely a tidying-up operation. I would not have spoken at all in Committee had it not been that a number of organisations have expressed concern to me, and much of this concern stems from the proposal to reduce the time bar to one year.
At the Second Reading debate your Lordships heard the doubts of the Church of England expressed by the right reverend Prelate the Lord Bishop of Rochester. I have heard from the Baptist Union who are of the opinion that the one-year time bar is too short. They say that in the early days of marriage there are difficultues created by learning to live together. In their view, a lengthening of the time would encourage couples to try reconciliation rather than go for the easy way out of dissolving the partnership. The Responsible Society and Care Campaigns have expressed to me the same view.

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The National Council of Women of Great Britain have stated to me that they consider that—and I quote:
"A longer time than a year is desirable to give couples the chance to adjust to each other, resolve differences and reach a fair compromise on the matters in dispute".
The Mothers' Union are also in favor of a two-year time bar, an absolute time bar of two years. Indeed, 50 per cent. of their members are in favor of three years and the Mothers' Union have expressed their view that the existence of a time restriction helps protect those who marry from doing so casually or without due consideration.
This brings me to my own reason for supporting a two-year time bar which is based on the word "commitment", which I would explain as follows. In the field of human relations, with the possible exception of conceiving a child, marriage is the greatest commitment that one can make. That being so—and this I say with the utmost respect to your Lordships—I wonder whether sometimes we tackle the problem of divorce from the wrong end. Once a marriage has started on the wrong foot, there is often little that can be done, certainly by the law. It is what happens before the marriage that matters. For this reason, I have always felt that the key to a happy and lasting marriage is the degree of commitment given by the two people concerned to each other at the outset, having considered the implications of what is involved. The question therefore is whether this Bill, and this clause, in particular, is likely to help or to hinder commitment.
May I say that I accept what the noble and learned Lord the Lord Chancellor said in the Second Reading debate about the effects of the Bill having been exaggerated and its contents distorted. When the leading article in a Church newspaper said that the Bill—and I quote:
"makes possible divorce after one year of marriage"
it was making a gross over-simplification. Nevertheless, I believe that that is just what many people will think. Rightly or wrongly, couples will enter marriage believing that if it does not work they can always call it off after a year and try again with someone else. The amendment moved by the noble and learned Lord. Lord Denning, would not be helpful in this respect.
Therefore, at a time when we should be doing all we can to help people getting married to deepen their commitment to the marriage, I believe that the reduction of the time bar to one year, or, indeed, its abolition, would have a psychological effect in the opposite direction. I would therefore prefer to see a two-year bar on petitions if only to encourage couples to stop and think before marriage about the step that they are taking and to consider the degree of commitment which they will need to develop.
Furthermore, a two-year bar would be consistent with the view taken by Parliament that a two-year separation constitutes a prima facie case of breakdown. I wonder whether, if we have a time bar that is less than two years, we shall not get a great many cases under the first two grounds of the Matrimonial Causes Act 1973, adultery and what we might call impossible behaviour. In the context of a promise to live together and to love each other for life,
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two years does not seem an unreasonable period to wait before taking steps to undo that promise.
7.5 p.m.
The Lord Bishop of Rochester: In supporting Amendment No. 3, I speak with even greater hesitation than I did on the Second Reading debate. In that debate, I expressed the hope that we would look in Committee at some of the alternative options that the Law Commission themselves considered before recommending a one-year bar with no exceptions. I am therefore very glad that we are now looking at four of those options simultaneously. I would remind your Lordships again that the Law Commission themselves said in their report:
"There is an obvious danger that any move which would appear to make divorce easier to obtain would be seen as eroding the stability and dignity of marriage"
and that I was not alone in suggesting that the reduction of the time restriction to one year does just that.
Speakers on both sides of this House, while in general they welcome the Bill, have raised doubts about a one-year bar. The noble Lord, Lord Robertson, has referred to the views expressed by the Mothers' Union to the noble and learned Lord the Lord Chancellor nearly a year ago. Those views are echoed by many social workers and marriage guidance councillors who are often involved before any lawyers come on the scene. Indeed, the noble and learned Lord, Lord Denning, in speaking the other day of the importance of reconciliation and conciliation said that the right procedure before the parties go to a solicitor is for them both to go to a marriage guidance councillor. I would remind your Lordships that the Booth Committee have already said:
"Moreover, there is evidence that conciliation can lead to reconciliation, sometimes in apparently unpromising cases".
For these reasons, I presume to ask the Committee to consider this amendment, the effect of which would be to re-enact Section 3 of the Matrimonial Causes Act 1973 with a two-year bar instead of a three-year bar and with the addition of subsection (3) which provides for applications to be heard by a judge in Chambers, as I understand has been the custom for several years.
This amendment offers some relief in the first year as well as the second, while the proposed absolute bar does not. I believe that we all accept that there are cases of extreme need which require immediate relief. The present rule provides for this; the new clause does not; my amendment does. I submit that this is a less harsh procedure than that which the Government are proposing. We have been told by the noble and learned Lord, Lord Scarman, and others that the present procedure is open to abuse and that it is an embarrassment to the judges. If that is so, then surely it must be possible for new guidelines on exceptions to be issued—which was one of the Law Commission's options—or for new rules to be drawn up for the courts.
The Bill has been described as a lawyers' Bill and not a social workers' Bill. I believe that many Roman Catholic priests, Free Church Ministers and Anglican clergymen feel the same. The Law Commission may consider this Bill to be a tidying up of the existing law; distinguished judges may consider it a good Bill which

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will relieve hardship; but there are many people of all religious beliefs and of none who have serious anxieties lest the reduction of the time bar to one year will further undermine the public sense of the value placed on marriage in the law.
It is because I believe that, in its content and its procedure, law must do all that it can to underline the seriousness of the marriage contract and encourage people to enter marriages with this in mind, that I ask the Committee to think again about the proposed one-year bar, if we must legislate now rather than waiting for the Booth Committee report or for the Government proposals for family courts.
I acknowledge at once that I may not have got the wording of this amendment right. But, given any assurance that the Government will think again before Report stage, I would withdraw my amendment at once. Meanwhile, I hope that the noble and learned Lord the Lord Chancellor will do me the courtesy, as the longest-serving Member of these Benches and one who has had 44 years of pastoral ministry, of believing that I understand as well as any lawyer the misery and unhappiness which are caused by all divorce proceedings.
Baroness MacLeod of Borve: May I very briefly add a word? The noble and learned Lord, Lord Denning, was very persuasive about trying to make the Scottish law the same as the English law. I was married to a Scotsman but I am a Sassenach and half French. Therefore I do not feel I can go all the way with him on those grounds only, and I am afraid I do not go very far with his argument either. As I tried to say, very inadequately, on Second Reading, I have done a lot of homework. During this last weekend I have seen young people of one's children's ages—not necessarily very young still, but they know what is happening in the world—and I asked them how they feel. Every single one said that he or she thought it would debase marriage still further if we allowed young people or newly-weds of whatever age to take divorce proceedings at any time that they so wished. They all felt, oddly enough—as I, very much older, also felt and tried v to say on Second Reading—that a couple should not enter marriage knowing that if they had quarrels or if there were problems they need not necessarily fight on to try to make the marriage work, but could go round the corner to the divorce court within a year.
It is all making it very much too easy. I am sure that all of us in your Lordships' Chamber value marriage. Some of us may have had the good fortune to have had happy marriages. On the other hand we all know, from our own experience, that there are many people who are unhappy in marriage. But under two years, I feel, would be too short a time for any young couple or newly married couple to get used to each other. I should like to support the noble Lord, Lord Robertson of Oakridge, in his Amendment No. 4.
Lord Mishcon: How right it is that this should be made a completely free vote, with members of your Lordships' Committee anxious to do as justly, as reasonably and as mercifully as they can with a very difficult social problem. If one wanted to be persuaded of the rectitude of that course, one has seen a very distinguished former Master of the Rolls differ from an
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equally distinguished former Lord Chancellor in the shape of my noble and learned friend; and one has even seen a right reverend Prelate differing from an equally right reverend Prelate. So it is a judgment that each one of us has got to take.
I suppose one ought to start off logically by deciding whether or not the present law needs to be amended or indeed repealed. I shall not take a lot of time in regard to that, because this was debated on Second Reading and I believe your Lordships will be convinced, if the right reverend Prelate the Lord Bishop of Rochester will forgive me for saying so. by the way in which everyone seemed to realise that the present law was both impossible, and indeed harmful, to administer.
As a humble legal practitioner, may I repeat to your Lordships in, I promise, somewhat different words what I tried briefly to say at Second Reading? That is, that you will find that a lawyer for the petitioner endeavouring to obtain leave to file a petition within the three years has, as a matter of professional duty, almost to ask his client: "Is that the worst you can say about your spouse? If so, the court will not find this to be exceptional hardship or exceptional depravity. Can you not search in your memory for something a little more distressing, harmful, cruel and horrible to say about your spouse?—because otherwise I must tell you that you have no chance of succeeding".
Apart from that, we asked ourselves the question as to what, in hardship, is exceptional and what, in depravity, is exceptional. We found that that was an impossible question for us, as lay members of your Lordships' Chamber, to answer. How difficult therefore it must also be for the judges. So one came to the conclusion that the present law is not a good law. Then the question arose: is this the time to alter it? I ventured to express the opinion that this was not the time to alterit. Possibly I was expressing a minority view in saying that at a time before we knew anything constructive about conciliation procedures and courts, before we knew what was going to happen to Bristol, for example, and before we knew what the recommendations of the Law Commission (now considering the matter) would be on the grounds for divorce, and before we had anything other than an interim report from the Booth Committee. This was not the time to alter the law.
Your Lordships may feel that that is a view which is not going to find favor in this Committee, and so I move from there to say this. If you do not find it favourable to wait and you do decide that the law ought to be altered or repealed, then it is a question of deciding upon the period. Your Lordships may feel that three years, if we are altering the law, is too long. It is my respectful opinion that one year is too short; and my opinion, most definitely, is that to have no period at all—and I say this with the utmost deference to the noble and learned Lord, Lord Denning, because I know he will forgive me if I say it with all humility—is, from the legal practitioner's point of view, a very, very harmful provision.
I would assure your Lordships that there are cases where it is possible for the lawyer, for the marriage guidance clinic, for the parson and even perhaps for the family friend, the family doctor and the sensible mother-in-law—and such a person does exist—to

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point out that, "In any event, my dear, I know you may be disillusioned after your honeymoon to come back to the humdrum life that does exist by way of contrast after a honeymoon but, before you can file a petition, you know you have to wait for a certain period. It cannot do any harm, can it? Go back and try to make a success of things". The lawyer plays his part in this. It is his first professional duty, as I understand it, to try to see whether there is not a chance of reconciliation. But if there has been a bitter quarrel and a petition can be filed tomorrow, the wayward young wife or the wayward young husband will say: "No, please, I have come to you for a divorce. Can you file the petition tomorrow?—because, if you can, please do it." Once that is done the harm is done too.
So it is a question, in my humble submission, of "No" to no period at all and "No" to three years. Then comes the question: should it be one or two years? I go instinctively for the longer period, to give the opportunity for second thoughts. I would ask your Lordships to bear in mind, with respect, that we are thinking in the main of young couples. They have not had a great experience of life and they have not had a great experience of compromise perhaps, or of the give-and-take which makes up marriage—marriage. So let all of us who are rather more adult than the people we are thinking of give ourselves the opportunity of saving marriages instead of destroying marriages within a too-short period of time. That is why 1 find myself, if we have to legislate now—but I hope I have made my view plain about that—supporting the two-year period which was so eloquently dealt with by the noble Lord, Lord Robertson.
Lord Monson: Although I was here for only part of our Second Reading debate on this Bill, I subsequently read from cover to cover the Hansard which reported on that deabte. Although, as always, I found the arguments of the noble and learned Lord the Lord Chancellor powerful and persuasive, I am bound to say that I was far more convinced by those who opposed what we might call the one-year rule and nothing I have heard this afternoon in our deliberations has caused me to change my mind.
Indeed, my attitude has been reinforced by the quite amazing unanimity among people outside your Lordships' House of widely varying ages and social backgrounds with whom I have discussed this matter: and here my findings accord entirely with those of the noble Baroness, Lady Macleod. All of them were worried at the implications of the state appearing to say to young people, "Very well, you can give marriage a go for one year and, if it does not work out, you can pack it in at the end of 12 months".
Of course, that is not what the state is actually saying to people, but that is the impression given to people who do not take the time or the trouble to analyse legislation, or even to analyse newspaper reports thoroughly—and that, after all, includes most people. In other words, the one-year rule appears to be a psychological blunder, however logical it may appear to members of the legal profession—or to some members, because the noble Lord, Lord Mishcon, agrees with me on this.
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Of the various alternatives I prefer that of the noble Lord, Lord Robertson of Oakridge, or possibly that of the right reverend Prelate. But if neither of those should be acceptable to the Committee, I would prefer no time bar at all to a one-year time bar.
The Lord Bishop of Norwich: I apologise for being so late in coming into your Lordships' House, but responsible tasks in my diocese made it necessary for me not to be here earlier. I should like to take up one word which the noble and learned Lord the Lord Chancellor used on Second Reading, because I believe it to be particularly apposite tonight and I am encouraged by what the noble Lord, Lord Mishcon, said to make this point.
The noble and learned Lord on the Woolsack said that, although it may not deter marriage it defers marriage, and he made some play at Second Reading, at column 33 of the Official Report, on the deterrence and the deferment. I should like at this late stage of this part of the debate to suggest that we ought to support either the noble Lord opposite, or my fellow Prelate the Bishop and the noble Lord, Lord Mishcon, in pressing for at least a two-year period.
This is not in any sense a wrecking amendment. Obviously, we would not after Second Reading be party to a wrecking amendment. But it is, at least, a gentle, small and modest attempt to strike a blow for young marriage and for the idealists who have recently set out on marriage. When all is said and done, even in the Old Testament, as your Lordships know, the young soldier was let off his national service in the first year of his marriage, so that he might bed down—yes, that will do—with his young wife for that first year, and we should do no less than that.
Therefore, before the noble and learned Lord on the Woolsack replies to these amendments, we should just say that it is one of our tasks and duties in this historic House to maintain the Christian emphasis on marriage.
In no way can we call a one-year period a Christian marriage. I would not use the word "laughable"—if I can think of a better word to use I will use it—but it is totally opposite to the Christian view of marriage. Your Lordships will remember that we are not simply concerned with Christian marriage in our nation, because marriage is a creation ordinance from the early dawn of time. We are concerned, therefore, with marriage as an institution, whether for Christians or for people who feel towards the stability, happiness and joy of Christian marriage. Therefore, though we strike but a very small blow for the idealism of marriage, let us at least vote not to wit but to conscience on the matter of at least a two-year period.
Baroness Ewart-Biggs: May I very briefly support one aspect of what my noble friend Lady Lockwood said? I feel that there has been a lot of talk about marriage being debased, but in the end it is only the two partners to a marriage who can debase it. After all, what will eventually keep those two partners together is either their love for each other, or, if they are not so lucky and as time goes on, it will be the discipline which they exert. It is a matter of how the law can best help them exert that discipline, and I feel that any time bar—and I do not mind how long it is—could well deflect them from exerting that discipline of concen-

943
tration and effort to keep their marriage together. Therefore, as it is they, those two human beings, who are either going to honour marriage or debase it, they should be given all possible help to exert and focus on the concentration of keeping it together; and no time bar is, possibly, the way in which they will best be helped.
The Lord Chancellor: I think it is time that I said something. First, I am afraid that I must speak a little longer than I would have liked. I apologise again, but this is virtually a Second Reading debate on Part I of the Bill. First, what are we discussing? I do not believe that a single Member who has so far spoken has even got to the beginning of what we are discussing. We are discussing, first, whether we are going to substitute an absolute bar of time for a discretionary bar in certain circumstances which exist. Nobody has said that, but that is the basic fact that we have been discussing. Obviously, if we are going to discuss an absolute bar instead of a discretionary bar, we must have a shorter period rather than a longer period. Let us get that absolutely plain.
Secondly, we are not discussing one year, two years or three years for divorce. That has nothing whatever to do with it. The period which we are discussing is the period before you present a petition and not the period in which you get a divorce. The principal Act, which nobody has yet referred to, indicates that after a decree nisi there might have to be a six months' delay, anyhow, and of course there are other ancillary matters which have to be discussed. So that those who want a two-year period are really arguing for a three-year absolute period and not for anything else. That is what they have to face and none of them has faced it.
I begin by reminding the House not of what I said, but of what the noble and learned Lord, Lord Scarman, said when he spoke on Second Reading, because I think he said something with experience that we ought to remember. He said that unless the recommendations of the Law Commission are demonstrably wrong, they should be supported as being the product of detailed consultation and careful consideration. I start from that premise.
We are not discussing conciliation. I must tell the Bishops that we are dealing now with a discretionary bar which has existed since 1937. My noble and learned friend Lord Denning reminded us of that. So we have had nearly 50 years of this provision and it is wholly unworkable. It is conceptually disgraceful, because it suggests that there is an acceptable degree of depravity along with which judges can work. It is unworkable, because, there being no acceptable and normal degree of depravity, each judge applies his own idea of what is exceptional. Therefore, it is incapable of just or consistent application and it has, as a matter of fact, been proved to have deleterious effects.
I want to remind the House of something, and I want to remind, in particular, the Bishops, to whom I am afraid I am going to say some harsh words. I am going to say harsh words as a Christian and I am going to say harsh words as a member of the Church of England. The only Bishop with whom I agreed was the Bishop of London and I hope he will forgive me for
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saying that: if not, he will probably excommunicate me for saying it.
First, we heard a remarkable speech during Second Reading from the noble Lady, Lady Saltoun. Her father, whom I remember, was a Scot. The noble Lady lives in Scotland. She wants to impose on the English a law which the Scots have never been prepared to bear. I rather suspect that my noble friend Lady Macleod of Borve, although she is a crypto-Englishwoman, carries with her the experience of a Scottish title, too. I do not myself believe that the Scottish law must necessarily be in harmony with the English law. Nobody has ever suggested that it should, but it is an advantage, as the noble and learned Lord, Lord Denning, said. However, the point about the Scottish law is that it has proved beyond any possibility of doubt that the time bar makes no difference to the divorce rate. If only the Bishops would read the report of the Law Commission, they would find that that is so, but they do not appear to be interested. As I must put on record—
The Lord Bishop of Norwich: After making that statement, would the noble and learned Lord comment on the leader in the Daily Telegraph of Thursday last, which quoted what the noble and learned Lord said when he was a learned and wise member of the Opposition Bench in another place? The noble and learned Lord then,
"confined himself to the sage observation that if divorces were made easier they would become more numerous".
The Daily Telegraph continued:
"He has been fully justified by events in this action of productivity".
Would not the noble and learned Lord agree that, as he is now speaking to an amendment concerning the lengthening from one year to two or more years, he is not correct when he states that making divorce easier does not in fact make more of them?
The Lord Chancellor: I shall comment, although I was trying to present a coherent argument. I hope that the right reverend Prelate will not intervene too often. The Daily Telegraph was quite wrong. I did not confine myself to the alleged sage remark. It was one of very many remarks that I made. I thought the conclusion they arrived at was ridiculous. So I have commented rather briefly on the right reverend Prelate's intervention.
I wish to say something about conciliation because it seems to worry a certain number of people. I do not know, but I cannot imagine anything less likely to make two young people come together again than to say that what one of them is determined to try to do he cannot possibly do. I can say, with some experience of attempting to save marriages (as has the noble Lord, Lord Mishcon) that the first thing to do is to ask them to try to see whether or not they can make a go of it and come back to one another. The wise mother-in-law, or whoever it may be, will do that, but, if one tries to put them into the straitjacket of the law, they will go ahead with greater determination. As for the idea which the noble Lady, Lady Saltoun, put forward, that two passionate young people about to engage in marriage would solemnly say to one another, "If it doesn't do we can get out of it after a year", it shows

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a misunderstanding of the young which I personally regard as totally incredible.
I just want to remind your Lordships—this is why I have to spend a little time upon it—of what the Law Commission in fact said. I am afraid it involves me in one or two quotations. I make no apology for this because the right reverend Prelate the Bishop of Norwich does not appear to have taken it in. This is what the Law Commission said in their report, after they had had the fullest consultations, except that in these consultations the Church of England did not surface at all, although the other major denominations did. They said:
"This proposition"—
the one they were putting forward and which is now in the Bill—
"was overwhelmingly endorsed by the great majority of those who wrote to us, several with distressing experiences of both marital breakdown and applying for leave to petition in the first three years of marriage. A few commentators, however, thought the present system operated satisfactorily. The most vigorous criticisms of the present rule were directed at the need to establish exceptional hardship on the part of the petitioner or exceptional depravity on the part of the respondent in order to obtain leave to petition for divorce within the first three years of marriage. The effect of this provision is said to be to encourage, if not actually to require, the petitioner to make the most unpleasant allegations possible about his or her spouse in order to make out a convincing case. Both practitioners and others who responded to the Working Paper wrote of the embarrassment of having to 'wash one's dirty linen in public;' and the prospect of judicial scrutiny of such sensitive matters was seen as degrading. Thus, although the present law of divorce is designed to minimise 'bitterness, distress and humiliation', it seems that the making of the allegations thought to be necessary to ensure that leave is given often causes considerable bitterness, distress and humiliation, even to the extent of jeopardising any reasonable settlement between the parties about financial provision and arrangements for custody of and access to children. As if this were not bad enough, it appears that the distasteful process of applying for leave, coupled with its unpredictable outcome, is such that practitioners sometimes advise clients against it, suggesting either that they seek some other less distressing form of relief or simply wait until the three years have expired when the more neutral fact of separation can, perhaps, be relied upon. We were particularly troubled to note that such advice is apparently sometimes given even in what would appear to be extreme cases of hardship or depravity which should be allowed to proceed to an early divorce. Thus, it seems to us, the system has been turned against itself."
Then they quoted from Lord Justice Ormrod. I must say to the right reverend Prelates, as they sit there, that we lawyers are the social workers. We have had to fight this battle again and again and again during our lives. We do think that we know what we are talking about. This is what Lord Justice Ormrod said about the existing law. I claim in addition both the noble and learned Lord, Lord Denning, and what the noble and learned Lord, Lord Scarman, said on Second Reading.
"The principal difficulty lies in knowing what standards to use in assessing exceptional hardship and what is meant by the phrase exceptional depravity. Both involve value judgments of an unusually subjective character…moreover, standards in society in these matters are not stable and are subject to considerable changes over comparatively short periods of time;…the change in the basis of divorce from the matrimonial offence to irretrievable breakdown with the expectation of relatively easy divorce may have increased the hardship involved in waiting for the specified period to elapse". "The fourth criticism"—
here I am quoting again The Royal Commission—
"of the present provision concerns the way in which it is used and to what effect. As we have seen, the permitted exceptions to the rule are not always taken advantage of and, where they are, it seems that making an application for leave to present a petition is capable of producing considerable and suffering. The response to the
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Working Paper has confirmed us in our view that the main achievement of the restriction is to defer rather than to deter divorce".
That is not my phrase but the phrase of the Law Commission which the right reverend Prelates chose to quote.
"Further comment as to effectiveness, however, begs the question of what effect the restriction is intended to have. This is a matter which we will consider below".
If the right reverend Prelate will turn to page 55, which is the page before the graph to which I drew attention on Second Reading, he will read this. I think that we ought to take it into account:
"If it be accepted that the main effect of the present restriction is to delay rather than prevent divorce, it would follow that the restriction only preserves, for an arbitrary period of time, the legal bond between some couples whose marriage has in fact irretrievably broken down. The restriction cannot compel them to live together, but it can and does prevent them from creating a new legally recognised relationship. This (it may be said) is tantamount to imposing a penalty for having made a mistaken choice of partner: and the penalty may in some cases be severe—for example, a wife deserted soon after marriage might wish to re-marry and have children; a wait of three years could make child-bearing difficult or dangerous for the mother and imperil the health of her child. Such cases undoubtedly involve hardship, but possibly not such as would qualify as 'exceptional' for the purposes of an application for leave to present a petition within three years from the date of the marriage".
Then follows the graph, and this is the relevance—and the only relevance from the point of view of this side of the argument—of the Scottish experience, which shows quite conclusively that not one single marriage, so far as one can judge from figures, has been saved by the imposition of the time bar which is so dear to the heart of the right reverend Prelate.
Having said that, it seems to me that one comes back again to the experience of the Law Commission about which such careful consultation took place. Supposing a young woman finds herself married to a person who, without her knowledge, is a paedophiliac and under charge of a serious sexual offence; or who is a homosexual? Supposing a young man finds himself—as only too often he has done in the past—married without his knowledge to a woman pregnant but with a child who is not his own? Supposing one party to the marriage without informing the other—and, alas, how common this is—is suffering from syphilis, gonorrhoea, AIDS, or herpes? I know of a case—but I will not give the name because he would be known to most of your Lordships—of a man who married a young woman who, on the honeymoon, told him that she had only married him because she wanted to remain the mistress of an French aristocrat and was using his name as a cover for her continuing to do so. I can think of a woman who was a prostitute and who married in order to prevent herself being deported. Those are the kind of cases with which lawyers have to deal.
The right reverend Prelate asks me to respect his position on the Bench as a person who has been in the ministry for 44 years. I have been a lawyer and a communicant of the Church of England a great deal longer than that, and I think that I know what I am talking about when I am talking about this subject. It is the situation we are faced with after not quite 50 years—between 40 years and 50 years—of this particular restriction. I say, therefore, that the worst of all possible worlds is the amendment proposed by the right reverend Prelate the Bishop of Rochester. That

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amendment retains exceptional depravity and exceptional hardship. It imposes a bar which precisely retains the very features of the law which have been declared to be intolerable by the Law Commission after nearly 50 years' experience. That is what the right reverend Prelate is proposing to do.
If the right reverend Prelate will not listen to me and if he will not listen to the Law Commission, and if he does not care about the experience of the legal profession, then—and I have given him notice that I was going to say this—let the right reverend Prelate ask himself who said this:
"Then spake Jesus to the multitude, and to his disciples, saying, 'The scribes and the Pharisees sit in Moses' seat: all therefore whatsoever they bid you observe, that observe and do; but do not ye after their works: for they say, and do not. For they bind heavy burdens and grievous to be borne, and lay them on men's shoulders; but they themselves will not move them with one of their fingers'."
And who said this?
"Woe unto you also, ye lawyers!"—
and he did not mean practitioners of the law when he said that; he meant people who were using the law as an instrument for purposes for which the instrument of law was not appropriate. He said:
"Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers".
The right reverend Prelate can disregard the Law Commission if he likes, but he cannot disregard the words of the founder of our holy religion. I told him that I was going to speak as a Christian, and I am speaking as a Christian. I must say that the worst of all possible worlds is created by the amendment of the right reverend Prelate the Bishop of Rochester.
So far as concerns the difference between two years and one, I have only this to say. The one year was, after profound consultation by the Law Commission, chosen as better than two for the reasons which they set out. It was not in order to save marriages, because the Law Commission had already decided that it could not be done that way. It was done in order to put down a marker about the importance which the state of England attaches to the institution of marriage. It was to say that there are cases where the institution of marriage is being abused at the moment.
Lord Mishcon: I am sure that the noble and learned Lord the Lord Chancellor will pardon me if I interrupt his flow as one who does not claim a monopoly of wisdom in these matters for my profession. Since we so often get divorce cases and marriage breakdowns after the marriages have broken down, the Church and others who work in different religions get them before they break down. Before the noble and learned Lord goes on, as he has quoted other portions, will he please quote paragraph 2.14 of the Law Commission's report? I am referring to the last three sentences of that paragraph, on the reasons why the Commission went for a period?
7.47 p.m.
The Lord Chancellor: I certainly will. Paragraph 2.14 states:
"We have already referred to the question of what policy is intended to be advanced by a restriction on the availability of divorce in the early years of marriage. It is appropriate here to
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comment further on this question. It is perhaps a little simplistic to think of measuring the effectiveness of the restriction solely, for example, in terms of the number of marriages saved, as the underlying objective is more subtle: it is to shape an attitude of mind. That is not to say, however, that there is no merit in the direct effect on particular individuals. There will no doubt be some cases in which a restriction on divorce is an obstacle which causes re-consideration of the decision to divorce, with the result that the marriage is preserved. Equally a restriction can be regarded as a valuable restraint on hasty re-marriage—a view which a number of commentators voiced strongly. On this view there is still some force in the opinion we expressed in 1966 that a restriction 'is a useful safeguard against irresponsible or trial marriages and a valuable external buttress to the stability of marriages during the difficult early years'.".
In fact, they came to the conclusion, after taking that fully into account, that a year's delay with an absolute bar in place of a discretionary bar was the best solution to what is admittedly a difficult problem. They went on to say that such evidence as they had—which was based on a very long period of Scottish experience—showed that, statistically at any rate, there was not one single particle of evidence that even one marriage was saved by the additional bar.
I am sorry to have spoken strongly, but I feel strongly about this matter. I myself am quite sure that your Lordships' Committee would be making a grievous error if it failed to back the Law Commission in what is a relatively small change. But, on the same side, I must say without any hesitation whatever that if I had to choose between the noble and learned Lord, Lord Denning, and the right reverend Prelate the Bishop of London, on the one hand, and a two-year period of absolute bar, on the other, or the right reverend Prelate's return to "exceptional depravity" or "exceptional hardship", then I would choose the noble and learned Lord, Lord Denning, every day of the week.
Having said that, I agree with the remarks of the two noble Baronesses opposite. I think they got it exactly right so far as the psychology of the matter is concerned. I can only say that I have tried in good conscience, believing as much as anyone and as much as the right reverend Prelates in the stability of marriage, to do the best I can in advising the Committee both as a Christian and as a man.
The Lord Bishop of London: Before the noble and learned Lord sits down I feel constrained to ask him one question. He has quoted holy Scripture and the words of Our Lord. He has not quoted the words of Our Lord about marriage and divorce. Is he aware that for those of us who sit on these Benches we, as all Christians in our society do, face the great problem and agony of trying on the one hand to be faithful to what Our Lord says while at the same time trying on the other hand to be as compassionate and realistic about the needs of people as they are. Will the noble and learned Lord not, misguided as he may think some of my brother Prelates are, give them the credit for trying to live within that agony?
The Lord Chancellor: We must all try and live within that agony. The right reverend Prelate makes a perfectly fair point. I have always had a very strong respect for, and temptation to agree with, what I understand to be the Roman Catholic view of marriage. They have holy Scripture very largely on their side. I did not quote it because it was not relevant

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to the argument. What I have been saying has been about the secular status of marriage and not about the sacrament of marriage as it is practised in the Christian Church. I have always had a very great respect for the Roman Catholic view of marriage, which is very largely supported by the three Gospels, and is that it is in fact indissoluble and when you talk about divorce you are talking about an impossibility. I can understand that. But the Church of England has abandoned that; it was very largely responsible for the change in the law in 1969—the part of my speech that the right reverend Prelate the Bishop of Norwich quoted from the Daily Telegraph—by suggesting that irretrievable breakdown was a thing which ought to dissolve civil marriage. Once you have accepted that, you must accept the consequences.
The Church is perfectly entitled to preach, although it does not in the case of the Church of England, that you cannot have divorce because marriage is indissoluble. Then you are faced with a whole set of problems about nullity and other things which we do not have to face. But once you have got off that standpoint and recognised that marriages have to be dissolved from time to time on the grounds of irretrievable breakdown, then I do not think you can have it both ways.
The right reverend Prelate asks me to quote the Scripture. I have not got it with me, but I had it in mind all along, but it is based on a view of marriage which is different from that which the state is bound to impose and which the state deliberately imposed as a result of the Church pamphlet Putting Asunder. I personally feel very strongly that the view of marriage thus discussed, that it is in fact indissoluble, is in fact wrong. But this is not the argument today. What we are asking today is whether, assuming the dissolubility of marriage on the basis of irretrievable breakdown, you should have a discretionary bar or an absolute bar, and, if you are going to abandon the discretionary bar for what period of time the absolute bar should be imposed, assuming that the absolute bar for one year will take at least 18 months and it may be two years to complete. That is what we are arguing about. Of course I do not dispute the good faith of the right reverend Prelates, or either of them who have spoken. I do hope they will give me a little credit for having good faith too.
The Lord Bishop of Norwich: Before the noble and learned Lord sits down, may I, with some nervousness, correct him on one point of fact, when he said, with all the majesty which his position means the nation gives to him, that the Church of England has departed from the standard of marriage set out by Our Lord? May I remind the noble and learned Lord that the text of Canon B.30 has not been rescinded, is the position the Church of England stands to, and says with the greatest clarity:
"The Church of England affirms, according to our Lord's teaching, that marriage is in its nature a union permanent and life-long, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity."
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At the end of that canon the Lord Chancellor will know that the Church is in fact agonising on how it can stand firm to the ideal of Christian marriage set out in its canon while at the same time with compassion it can care for those who have fallen short of that. But the standard remains firm.
The Lord Chancellor: I thought I had made it clear on Second Reading that I agreed with that standard. I did also say on Second Reading, and I hope the right reverend Prelate will take this to heart too, that the Church has every right to legislate for its own communicants. All Churches claim that right and they have all got it. What they have not got the right to do is to impose their views about marriage on the kind of marriages which the state has to celebrate. We have to celebrate the second, third, fourth and fifth marriages, we have to celebrate marriages between Jews and atheists, we have to celebrate marriages between Quakers and Presbyterians and Methodists, all of whom have different views of marriage from that of the right reverend Prelate. The suggestion behind the right reverend Prelate was that I was trying to suppress something. I promise the Committee that I am not trying to suppress anything. I say, as I said on Second Reading, that the Church has every right to legislate for its own communicants, but we can have only one law of marriage in England and Wales, even if it is not to be the same as Scotland, and it must cover all the types of marriage that we have to celebrate.
Lord Denning: There is very little I would say now, except that I should like, if I may, to commend the attitude taken by the Bishops of the Church of England here. It seems to me that the right reverend Prelate the Bishop of Rochester had a really good point in keeping, if you please, the case of divorce, in the case of exceptional hardship or exceptional depravity, from the very beginning of the marriage when it has irretrievably broken down. My noble and learned friend the Lord Chancellor has given those graphic illustrations of the wife who is pregnant by another man, and the party who has syphilis. I have had cases where the wife has gone off immediately after the honeymoon and gone back to a former lover. I have had cases where the husband, after being on honeymoon, has gone off to he a homosexual within a few weeks of the marriage. In those cases I always gave leave to proceed at once with the petition of divorce well within the one year. Those are the very sort of cases which the right reverend Prelate is saying must be preserved.
I agree they must be preserved, but you do not preserve those cases as exceptional cases by making a one-year absolute bar or a two-year absolute bar. What we are contesting is not only the discretionary cases. This is to be an absolute bar even in those extreme cases for the whole of a year, or two years, as the case may be. It is the absolute bar which I suggest is not really to be commended by this Committee. And if you are not having an absolute bar you ought to have a discretionary one. I would simply say I would prefer no bar at all, because that leaves scope for those cases where there is irretrievable breakdown of the marriage to be remedied at once. With all respect to those who think otherwise, the taking away of this one year, or imposing an absolute bar, is wrong, because if

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there is no bar at all then people will not think, "Well, we can always get a divorce after a year". They have not thought that before. They will realise there is no time limit at all, but when the marriage has irretrievably broken down. In cases such as I have put and those other cases we are dealing with they can plead for a divorce at once without waiting for an absolute bar of one year. I would still press my amendment to do away with any time bar altogether but let the divorce go forward when there is an irretrievable breakdown of marriage.
7.59 p.m.
On Question, Whether the said amendment (No.1) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 63.

DIVISION NO. 2

CONTENTS

Aylestone, L.

London, Bp.

Carmichael of Kelvingrove, L.

McGregor of Durris, L.

Cork and Orrery, E.

McNair, L.

Craigavon, V.

Masham of Ilton, B.

David, B.

Melville, V.

Dean of Beswick, L.

Merrivale, L.

Denning, L. [Teller.]

Monson, L.

Ewart-Biggs, B.

Norwich, Bp.

Foot, L.

Ponsonby of Shulbrede, L.

Glenamara, L.

Raglan, L.

Hacking, L.

Renton, L.

Hale, L.

Roskill, L.

Halsbury, E.

Seear, B.

Irving of Dartford, L.

Stoddart of Swindon, L.

Jeger, B.

Thomas of Swynnerton, L.

Killearn, L.

Tweeddale, M.

Kilmarnock, L.

Underhill, L.

Kinloss, Ly.

Wells-Pestell, L.

Llewelyn-Davies of Hastoe, B.

Winterbottom, L.

Lockwood, B. [Teller.]

Young of Dartington, L.

NOT-CONTENTS

Ailsa, M.

John-Mackie, L.

Avon, E.

Kaberry of Adel, L.

Bellwin, L.

King of Wartnaby, L.

Belstead, L.

Lane-Fox, B.

Beswick, L.

Lauderdale, E.

Bishopston, L.

Long, V.

Blease, L.

Lucas of Chilworth, L.

Campbell of Alloway, L.

Lyell, L.

Cledwyn of Penrhos, L.

Mackay of Clashfern, L.

Coleraine, L.

Macleod of Borve, B.

Crathorne, L.

Mansfield, E.

Croft, L.

Marley, L.

De La Warr, E.

Maude of Stratford-upon-Avon, L.

Denham, L. [Teller.]

Drumalbyn, L.

Mishcon, L.

Elwyn-Jones, L.

Mottistone, L.

Fanshawe of Richmond, L.

Murton of Lindisfarne, L

Fortescue, E.

Pender, L.

Gardiner, L.

Peyton of Yeovil, L.

Glanusk, L.

Portland, D.

Glenarthur, L.

Prys-Davies, L.

Gowrie, E.

Robertson of Oakridge, L.

Gray of Contin, L.

Rodney, L.

Gridley, L.

Ross of Marnock, L.

Grimston of Westbury, L.

Skelmersdale, L.

Haig, E.

Swinton, E. [Teller.]

Hailsham of Saint Marylebone, L.

Trefgarne, L.

Trumpington, B.

Harvington, L.

Vaux of Harrowden, L.

Hawke, L.

Whitelaw, V.

Hornsby-Smith, B.

Wise, L.

Hylton-Foster, B.

Young, B.

Inglewood, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.8 p.m.
[Amendment No. 2 not moved.]
The Lord Bishop of Rochester The Lord Bishop of Rochester had given notice of his intention to move amendment No. 3:
[Printed earlier: Col. 931.]
The right reverend Prelate said: I remain unconvinced that this is the right moment to legislate, but in order to support the noble Lord, Lord Robertson of Oakridge, I shall not move this amendment.
[Amendment No. 3 not moved: Col. 931.]
Lord Robertson of Oakridge Lord Robertson of Oakridge move amendment No. 4—
[Printed earlier.]
The noble Lord said: I move amendment No. 4—
Lord Denham: We have probably reached a moment when we should—
Noble Lords: No.
Lord Denham: I am sorry. This amendment has already been discussed, has it? In that case, if there is to be a Division, of course we have time to take it.
Lord Robertson of Oakridge: Clearly I am persuaded by the noble and learned Lord the Lord Chancellor, but I must weigh against that the eloquent speeches of support from noble Lords on all sides and the opinion of organisations in the pastoral field. May I just say that we are legislating for vulnerable people, who are subject to tremendous pressures from the media and other sources which portray—
Noble Lords: Order!
Lord Robertson of Oakridge: I beg your Lordships' pardon. I beg to move.
8.10 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 32: Not-Contents, 66.

DIVISION NO.3

CONTENTS

Aylestone, L.

Lauderdale, E.

Beswick, L. [Teller.]

London, Bp.

Bishopstone, L.

Macloed of Borve, B.

Chichester, Bp.

Mishcon, L.

Cledwyn of Penrhos, L.

Monson, L.

Coleraine, L.

Norfolk, D.

Coventry, Bp.

Norwich, Bp.

Croft, L.

Pender, L.

Fortescue, E.

Prys-Davies, L.

Gardiner, L.

Robertson of Oakridge, L. [Teller.]

Glanusk, L.

Harvington, L.

Rochester, Bp.

Hawke, L.

Rodney, L.

Home of the Hirsel, L.

Thomas of Swynnerton, L.

Hylton-Foster, B.

Wells-Pestell, L.

Inglewood, L.

Wise, L.

Irving of Dartford, L.

953

NOT-CONTENTS

Ailsa, M.

Llewelyn-Davies of Hastoe, B.

Bellwin, L.

Lockwood, B.

Belstead, L.

Long, V.

Blease, L.

Lucas of Chilworth, L.

Campbell of Alloway, L.

Lyell, L.

Carmichael of Kelvingrove, L.

McGregor of Durris, L.

Cockfield, L.

Mackay of Clashfern, L.

Craigavon, V.

McNair, L.

Crathorne, L.

Mansfield, E.

David, B.

Marley, L.

Denham, L. [Teller.]

Maude of Stratford-upon-Avon, L.

Denning, L.

Drumalbyn, L.

Melville, V.

Elwyn-Jones, L.

Merrivale, L.

Ewart-Biggs, B.

Mottistone, L.

Fanshawe of Richmond, L.

Murton of Lindisfarne, L.

Foot, L.

Peyton of Yeovil, L.

Glenamara L.

Ponsonby of Shulbrede, L.

Glenarthur, L.

Portland, D.

Gowrie, E.

Raglan, L.

Gray of Contin, L.

Renton, L.

Gridley, L.

Roskill, L.

Grimston of Westbury, L.

Seear, B.

Haig, E.

Skelmersdale, L.

Hailsham of Saint Marylebone, L.

Stoddart of Swindon, L.

Swinton, E. [Teller.]

Hale, L.

Trefgarne, L.

Hornsby-Smith, B.

Trumpington, B.

Jeger, B.

Tweeddale, M.

Kaberry of Adel, L.

Underhill, L.

Killearn, L.

Vaux of Harrowden, L.

King of Wartnaby, L.

Whitelaw, V.

Lane-Fox, B.

Winterbottom, L.

Lawrence, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.17 p.m.
Lord Glenarthur: I think it might be a convenient moment to break for dinner on this Bill until a quarter-past nine. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Fosdyke Bridge Bill [H.L.]
8.18 p.m.
Lord Lucas of Chilworth: My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to repeal restrictions contained in an Act of 1870 which determine the type of bridge to be maintained and built at Fosdyke on the River Welland in Lincolnshire. Passage of this Bill will permit the Department of Transport to come forward with proposals under the Highways Act 1980 for a new bridge at Fosdyke. The Bill does not authorise the new bridge, but in repealing four sections of the 1870 Act is an essential piece of preparation in the department's planning of a new bridge.
The A.17 trunk road is an important part of the department's national network. It connects East Anglia, and particularly Norfolk, with Lincolnshire, the East Midlands and the A.1. It crosses the River Welland at Fosdyke by means of a swing bridge. That bridge is now 72 years old. The bridge is narrow, to the extent that it must be controlled by traffic lights, so
954
that it serves only one direction of traffic at a time. It is on a poor alignment with respect to the road approaching it from either side, mainly because it was built alongside an earlier bridge. So there are some rather tight corners to turn where the approach roads meet the bridge. Also, it is in poor condition, and consulting engineers advise that it should be replaced. For the moment it is quite safe, but that will be decreasingly the case without significant expenditure on an overhaul.
The bridge is unsuitable for modern traffic. Indeed, last summer the department was obliged to issue a press notice warning drivers of likely congestion at the bridge. Replacement is the obvious answer, and my right honourable friend has included such a scheme in the road programme which was published in September, in Cmnd. 9059.
There is a snag. The department inherited the bridge and the restrictions governing it when the road was taken into the trunk road network in 1946. The restrictions are embodied in the Fosdyke Bridge Transfer Act 1870, and, in particular. in Section 25 of that Act. Section 25 states:
"In repairing and maintaining Fosdyke Bridge, the justices or the county surveyor or any other person acting on behalf of the inhabitants of the said parts of Holland"—
now, perhaps less picturesquely, that would be my right honourable friend the Secretary of State for Transport since the road has been trunked—
"shall maintain a middle waterway not less than twenty-seven feet in the clear, and if the said bridge shall be rebuilt"—
which it was, in 1911—
"then a middle waterway not less than thirty feet in the clear, together with an opening or openings of waterway on each side thereof not less than eighty feet, and the centre of the bridge shall be so constructed and maintained as to open at the top for the purpose of permitting vessels trading to and from the town of Spalding to pass through without striking any mast; and the said justices shall at all times employ and shall remunerate one or more fit person or persons to open the said bridge for the purpose of permitting vessels to pass through the same, and to close the said bridge after the passing of the vessels".
Just as the 1911 bridge had to be built as an opening bridge so, under present law, must any replacement for that bridge. That is just not sensible. The river traffic on the Welland which the 1870 Act sought to protect has disappeared above Fosdyke. Investigations by the department reveal that the last vessel,
"trading to and from the town of Spalding",
left that port in 1947.I further understand that the local highway authority has since built over the river a bridge which now landlocks the town. There is, I understand, an operational wharf to the seaward side of the Fosdyke Bridge, but this is unaffected by the present proposal.
The river traffic protected by the 1870 Act no longer exists. But like many other waterways the River Welland is used by a variety of leisure craft. This is an increasingly important use of inland waterways, and the Government welcome the sensible use of water space for recreational purposes, though they are conscious of the need for a balance among the various interests in and around the waterways.
In the present case it is fairly clear that the bulk of the leisure traffic on the Welland would be unaffected by this Bill and the subsequent building of a fixed

955
bridge. Over the last few years the present bridge has opened only very rarely, the great majority of river traffic passing beneath without requiring a bridge opening. However, it is important that all interests should have the right of comment on proposals for the new bridge. That can happen only when the department publishes in draft the Section 106 order, which will contain details of the new bridge.
As to the effects on road traffic, I understand that there is local concern at the delays which now occur at Fosdyke because of the inadequacy of the present bridge. We are in the course of spending significant sums on improving the A.17. Late last year we opened a by-pass for Heckington, in Lincolnshire, costing nearly £3 million, and a new stretch of road nearly seven miles long from King's Lynn westward towards Fosdyke. In addition, there are a further five schemes, costing in total over £21 million, which we hope to start over the next few years. They are in the current programme. There is also the proposal for the bridge at Fosdyke, which would cost just over £2 million. To enable that proposal to play its part in our general policy of improving the capacity and safety of the A.17, we need to repeal the restrictions on the type of replacement bridge that we may build. These restrictions are now unnecessary.
I now turn specifically to the Bill before your Lordships. It has two clauses. The first of these contains the repeal of four sections of the 1870 Act concerned with the replacement of the bridge. The sections are as follows. First, there is Section 25, which I earlier read out. Then there is Section 29, which requires the bridgeowner—now, as I have explained, the Secretary of State—in his proposals for rebuilding to submit plans of the new bridge for the approval of the Board of Trade. Section 30 requires the exhibition of lights on or near the bridge during rebuilding, as required or approved by the Board of Trade. Section 32 concerns the recovery of costs of any Board of Trade survey of any bridge constructed in the stead of the bridge then existing.
I think that I have adequately explained why Section 25 should be repealed. The three other sections—Sections 29, 30 and 32—protect the position of the Board of Trade in the event of rebuilding the bridge. Those sections of the 1870 Act are redundant and need to be repealed because the Secretary of State is now, and will remain, the highway authority for the bridge, and now also exercises those powers of the Board of Trade which the sections protect. In promoting a new bridge the Secretary of State for Transport would have to satisfy himself as to the plans of the new bridge and as to the exhibition of lights, as he would do for any other bridge that he proposes to construct over navigable waters. There is no need for a specific requirement. The Bill's second clause contains its citation.
Although the department's proposals for a new bridge lie beyond the scope of the present Bill, it may be for your Lordships' convenience if I explain what are the department's intentions in this regard. My right honourable friend the Secretary of State will promote an order under Section 106 of the Highways Act 1980 describing in detail the proposed new bridge, and he will publish the order in draft for public comment. In
956
the event of opposition from those with a direct interest in the proposal there would be an independent public inquiry into it, since Section 106 attracts the provisions of Schedule 1 to the 1980 Act. There will thus be the opportunity for public consideration when the design of the new bridge has been developed in detail.
To set that course of events in train we need the repeal of those sections of the 1870 Act which I mentioned earlier. That will enable the department to provide at Fosdyke a bridge adequate to modern needs.
Finally, I should tell your Lordships that my department has undertaken extensive advertisement of the present Bill, and I understand that no petitions have been entered against it. My Lords. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord Lucas of Chilworth.)
8.30 p.m.
Lord Underhill: My Lords, I am grateful to the Minister for explaining the Bill in detail. This certainly gives those such as myself a much better understanding than hitherto of what is intended by the Bill. Although it is a few years since I was in the Spalding area and travelled over the bridge, I recognise the importance of its replacement. The Minister has made clear that, in recent years, there has been really no commercial traffic at all.
I should like to ask whether there is the possibility of any commercial firm taking advantage of the 1981 Section 36 provision for grants to be made for facilities to assist persons who wish to use the waterway for commercial use. If that is a possibility, one should not overlook the potential of a bridge with a waterway in the middle. I take it from what the Minister says that the matter is completely open and that the type of bridge has not been determined. If it has already been determined in the mind of the Department, the issue of Section 36 grants becomes very important. The House would not wish to approve a measure that may be determined on cost if it will prohibit commercial use of the waterway.
It is important to know whether there are any concerns that are likely in the future to wish to use Section 36 grants. Once a lower bridge—a fixed bridge—is built, there is no possibility of doing that. Has the Minister any idea of what would be the cost of not having a fixed bridge in relation to the £2 million which he says is estimated by the Department. I take his reference to the order being published means that, if necessary. there will be proper planning consideration and that all the organisations concerned will be able to put their point of view. The Minister said that the Government had published the terms of the present Bill. Has there been any direct consultation with the local authorities in the area? Has there been any direct consultation with commercial and other users of the river?
8.33 p.m.
Lord Wise: My Lords, I am grateful for the opportunity to speak in support of this small Bill. It is a measure of some importance to the communications of East Anglia. I think, if my memory is correct, that

957
I made my maiden speech in your Lordships' House in February 1969. Again, if I recollect correctly, I think I stressed that, in my opinion, improvements to the A.47, continuing to the A.17, were of equal importance to East Anglia as improvements to the A. 11. I stressed that with the expansion of the port of King's Lynn and the other eastern ports and the considerable industrial development taking place in Norfolk at that time, together with the ever-increasing volume of holiday traffic, a modern east-west route to the northern part of the region was essential.
I appreciate that since that time much has been done to improve East Anglia's road links with the rest of the country. The improvements to the A.12 and the A.45 have been most useful, and we now have, not the A.11, but that wonderful motorway the M.11, which I find most useful in journeying to your Lordships' House. However, I also use and frequently travel along the A.17. I have to confess that I still become bad-tempered and frustrated every time that I do so. There is a fair amount of work still to be done on it. Travelling to Norfolk one feels as though one is coming to a remote corner. This is especially true when travelling from the Midlands because it is such a twisty, twirling and shocking road.
The population of East Anglia is growing rapidly and industrial development, much of it light industrial development, is taking place. We deserve good roads. They are an absolute necessity. The A.17 is our main road to the Midlands and to the A.1 and from there to the North of England. The main obstacle in Norfolk has been removed by the bypassing of King's Lynn, Swaffham and Dereham. This constitutes a welcome reduction in the time taken on journeys either way. Recently the stretch of road to the west of King's Lynn has been improved tremendously. Two or three villages have been by-passed. I think that my noble friend said that seven miles of new road is being constructed. I was most interested to hear of the other improvements planned for this road in the road programme. I hope that they will be carried out quickly because it seems a long time since I first asked for them in 1969.
Obviously, improvement or, better still, replacement of the bridge at Fosdyke is an essential part of this programme of improvements. The A.17 is a busy road. I suppose that it is surprising to think of congestion in the middle of the Fens. But this bridge causes considerable congestion especially in the summer when the road carries much visitor and holiday traffic. In fact, it is busy all the year round with all types of traffic, much of it heavy duty lorries. It is a bottleneck. So far as I can see, there is no easy route for diverting the traffic around the bridge. I suppose that one would need to make a detour by Spalding, but that is a long way round. I would not like to estimate the number of miles, but I do not imagine that the townsfolk would welcome more traffic being sent their way. They would probably be calling very quickly for a bypass to be constructed.
It is difficult to see that widening the present bridge would serve much purpose because it is old. It would probably be more expensive to do this than to replace it completely. In fact, complete replacement seems the only sensible solution. I understand from the speech of my noble friend that the department is inhibited
958
from proceeding by the outdated and unnecessary restrictions contained in the 1870 Act. The noble Lord, Lord Underhill, was concerned about the commercial traffic that may need to use this waterway. I would not have thought that that fear arises. I cannot see much commercial traffic of any size wanting to use it.
Obviously, the building of a new bridge could cause inconvenience to the occasional yachtsman who wants to pass underneath it. Being a yachtsman myself, I can appreciate this. But in all probability the bridge would be high enough—at least I hope that it would be—to enable small sailing dinghies to pass underneath without any problem. Against this, we have to balance the needs of East Anglia and the thousands of drivers who use this road daily. I suggest that the advantages to them greatly outweigh the disadvantages to the occasional yachtsman. There is simply no comparison. I wish strongly to support the Bill, and I hope that your Lordships give it a Second Reading.
8.38 p.m.
Lord McNair: My Lords, I have come very late to this problem. In fact, when I came up today I did not even know we were debating the Bill, but I have received some information from the locality of the Fosdyke Bridge. I should like to put some points of view. Whenever we talk about a bridge, we are balancing the interests of two groups of people—the people who go over the bridge and those who go under it. The noble Lord, Lord Wise, devoted most of his speech to the former group. I do not dispute that the bridge apparently needs to be replaced and that many motorists need to use it. We are not suggesting that it should be done away with. However, my information does not entirely accord with that of the noble Lord the Minister on the use of the river at present.
I wonder whether the noble Lord can tell me something or, if necessary, write to me about the question of dredging. If the new fixed bridge is high enough to permit a dredger to pass underneath it, then I imagine that any other normal river traffic would also be able to pass underneath. Certainly I imagine that sailing dinghies will not require as much clearance as a dredger.
I was born in the Fens although I do not live there now. However, I understand that silting up is a constant problem. I am told that the banks are maintained with stone from beyond the bridge so that dredgers must be able to pass underneath the bridge. That is the first and probably the most important point that I want to make. I am also told that fertiliser reaches Fosdyke from the east, from seaward. So it would equally seem necessary that the bridge should permit the passage of whatever boats are involved. Clearly if they are barges they will not need very much clearance. I am told—and this may be a vanishing activity—that there are still fishermen who pass under the bridge on their way to their fishing grounds. It would he a pity if that activity were to be stopped. But again I imagine that if the bridge will permit a dredger to pass underneath it, then it will also permit a normal fishing boat.
Pleasure craft have been referred to by, I think, both noble Lords who have spoken previously. Clearly any bridge that will permit a dredger will also be all right

959
for those craft. I do not want to detain the House. However, I should be very pleased if the Minister would consider these points and feed them, if necessary, to those people who will be concerned with the preparation of the Section 106 order of which he has told us.
8.42 p.m.
Lord Lucas of Chilworth: My Lords, I am most grateful to the noble Lord, Lord Underhill, my noble friend Lord Wise and the noble Lord, Lord McNair, for taking an interest in this small but very important Bill. I do not have anything further to add to what I said when introducing the Bill. However, I shall answer as many questions as I can because we appear to have ample time this evening. Perhaps your Lordships will bear with me if I am a little long winded. Those noble Lords who will be returning for the Committee stage will be some little while yet.
The noble Lord, Lord Underhill, asked me a number of questions. He specifically asked me about the position as regards Section 36 grants. I can confirm that that matter is completely open. It would probably be a matter for debate in the event of there being a public inquiry. However, we know of no concerns such as those of which the noble Lord spoke. That answer will probably also apply to the matter raised by the noble Lord, Lord McNair, who spoke about commercial shipping and the fertiliser trade. Apart from a small boatyard up-river of the bridge—that is somewhere about five or six miles from Fosdyke Bridge towards Spalding—there is no commercial activity. The existing wharf shown on any map has been derelict for some years. However, the boatyard has a thriving business in small craft, but the number of times that the bridge has been opened during the last four years is as follows; in 1979 it was opened six times; in 1980 it was opened 21 times—we do not quite know why the number shot up then—in 1981 it fell back to seven times and in 1982 it was opened six times. Not one of those openings was for commercial craft. The waterway gives certain rights for commercial craft but none for pleasure craft. So if these openings were for pleasure craft going to the boatyard, it would seem unlikely that the boatyard would be seriously disadvantaged in the event of any subsequent bridge being too low or in any other way prohibiting the passage of those six vessels.
On the other hand there is a wharf on the seaward side of the bridge which is busy and which I understand has had quite a lot of money spent on it. Their concern, as expressed to the department, is that, in the building of a new bridge access from the road must not be impaired in any way. That again is a matter that would come out in the consultation process that would follow a draft order.
The noble Lord, Lord Underhill, also asked about the bridge being a fixed bridge. I do not wish to be negative about this matter, which was also referred to by the noble Lord, Lord McNair, who spoke about a "new" bridge. I do not know what the new bridge will be, because the design has not yet been put in hand. It would seem sensible, in the light of what I have said, for it to be a fixed bridge. The difference in cost is something between £1·9 million for a fixed bridge and
960
£2·2 million for an opening, lifting bridge. That is the capital cost involved at 1983 prices. There is, however, the additional cost of maintaining an opening bridge. That is reckoned to be, in capital terms, something like £39,000.
Consultations have taken place already both with the River Users' Association and with the local authorities. Perhaps I should add that the navigation authority for the River Welland is the Anglian Water Authority. Upstream of the bridge the Welland is designated as a recreational waterway and it is the Anglian Water Authority Act 1977 that gives them the powers to improve moorings and the river bed, and to levy charges and so on.
Downstream the pilotage authority is Boston/Spalding and they have indicated that they do not oppose this Bill. So there need be no confusion in the minds of noble Lords that anybody is being denied anything to which they have a right. Certainly the light craft interests, to which my noble friend referred, will have an opportunity of making their feelings abundantly clear when the draft order is laid.
My noble friend Lord Wise spoke about the time element. He will recall that I said in my opening remarks that there are five schemes currently in the road programme totalling £21 million. This represents, therefore, a continuing process of improvement to the road. I think my noble friend also asked about the timing of the bridge. One would anticipate, standing here shortly before Christmas 1983, that 1987 might not be an unreasonable time to realise this new bridge.
I think that I have answered all the questions which have been raised by noble Lords. If I have missed anything, noble Lords may be quite assured that I shall write to them. Indeed, if, on reflection, they have any further questions, I shall, of course, be very pleased to deal with them.
The real purpose of this Bill is to prepare the ground for proceeding with a sensible piece of modernisation of an important road. Although it carries some 10,000 vehicles a day, about 2,000 of which are heavy goods vehicles, we are also not unmindful of the half dozen vessels that pass underneath the bridge. This is an important development. If, indeed, my noble friend, who has such knowledge of this part of the country, has any great interest in the old bridge or has any contact with the Industrial Archaeological Society, my right honourable friend will be very happy to receive offers for the old bridge when it is taken away. On that basis, I beg to move that the Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Lord Lyell: My Lords, I beg to move that the House do now adjourn during pleasure until 9.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.52 to 9.10 p.m.]

Matrimonial and Family Proceedings Bill [H.L.]
9.12 p.m.
House again in Committee on Clause 1.
Clause 1 agreed to.
Clause 2 agreed to.
(Amendment No. 5 not moved.]
Clause 3 [Orders for financial relief after divorce, etc.]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 6:
Page 3, line 18, leave out ("while a minor").
The noble and learned Lord said: When I spoke to the last amendment I made the foolish observation that I did not think that it was a matter that called for dogma and that I, myself, did not propose to make any dogmatic statement. My goodness, what a mistake that was! I was plunged into dogma and wondered where the Welsh Congregationalists came into it. Happily, there is nobody listening; so may I go on like this? We are now fortunately in an amendment free, I hope, from dogma, but it would be an exaggeration to say that there is no room for a difference in opinion.
The matter arises out of the provisions of Part II dealing with financial relief in matrimonial proceedings and in paragraph (2) (a) of the new Clause 25, your Lordships will see that it is provided that:
"It shall be the duty of the court in deciding whether to exercise its powers",—
under the relevant financial provisions—
"and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen".
The effect of Amendments Nos. 6 and 7 is to require, in effect, that consideration should be given to the welfare of the child of the marriage up to the age of 21. The reason for this amendment is to meet the criticism (which has been expressed by various bodies that have been particularly concerned with the protection of the interests of children) that it failed to meet the situation of the children, many of whom go on to college and university—to full-time education. They are still dependent on the family provision, many of them at any rate, and on contributions from the family; and I feel—and it is felt by those who have written to me about this matter—that the consideration that is given to the welfare of the children of the marriage should include consideration of the position of those who are in full-time education.
That is why we have proposed the amendment to raise the age from 18 to 21. I do not know that I need elaborate upon the argument a great deal. It will affect quite a large number of young people, if I may so describe them, at university, and not only at university but undergoing training in various technical and other institutions where the training often, if not always, in the cases that we are concerned with, goes up to the age of 21. I beg to move.
Lord Donaldson of Kingsbridge: I should like to support this amendment, having two grandchildren of
962
18 who go to university—luckily without divorced parents. I can see how important it would be if the parents were divorced that their education should not be risked by all assistance being cut off at the age of 18.
The Lord Chancellor: At Second Reading the noble and learned Lord pointed out that many children remain dependent on their parents beyond the age of 18 for educational, medical and other reasons. Of course, in the majority of cases the children will cease to be dependent on their parents on leaving school at the age of 16, or shortly thereafter. These two first matters are dealt with in the principal Act in Section 29(2)(a) and Section 29(2)(b), but I think it possible—and I hope that I say this with due diffidence—that the noble and learned Lord has omitted to read Section 29(3), where the matter is already dealt with in the principal Act. Section 29(3) reads as follows:
"Subsection (1) above",
which I think we can ignore,
"and paragraph (b) of subsection (2),"
which limits the period to the child's eighteenth birthday,
"shall not apply in the case of a child, if it appears to the court that—

(a) the child is, or will be, or if an order were made without complying with either or both of those provisions would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or

(b) there are special circumstances which justify the making of an order without complying with either or both of those provisions.

I am not at the moment able to see why that does not completely cover the point which the noble and learned Lord has made and which the noble Lord, Lord Donaldson, has also made. I will, having regard to what he has said, look again at the matter, but my provisional view at the moment—and I think there is no difference between us about the facts and other circumstances—is that the amendment is unnecessary.
Lord Foot: Before the noble and learned Lord withdraws the amendment, as I imagine he is about to do, may I just make this observation? It is well known to those who practise in this field that there is a power in the court to award maintenance in favor of children who are undergoing higher education above the age of 18. That I fully understand; but it does not seem to me to be a full answer to the noble and learned Lord's contention, for this reason: that what Section 25 provides is that, in considering the matter of maintenance, first consideration shall be given to the welfare of any child of the family who has, under the amendment of the noble and learned Lord, not attained the age of 21.
If the noble and learned Lord the Lord Chancellor was right in saying that this amendment was unnecessary, I suggest that it is not really quite right because you would actually have three categories of children. You would have those who were under the age of 18, to whom special attention must be given; you would then have the category of children between the ages of 18 and 21 who were undergoing a course of education, who would not acquire that special consideration which is required for a child under 18; and, apart from

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that, you would have the child over 21 who did not come into the picture at all. So, when the noble and learned Lord is considering this matter, would he give thought to whether indeed it is right to say that the statute he has quoted is a sufficient answer to the noble and learned Lord on the Opposition Bench?
The Lord Chancellor: Of course, I will do exactly that, but I would go on to say that my own feeling is that, in the ordinary case, when a child has reached the age of 18, rightly or wrongly—at the time I thought wrongly, but irreversibly—Parliament having made the age of majority 18, I rather doubt whether the child's interests should any longer have the same priority as we would all tend to give it in its period of pupilage before the age of 18. But obviously the existing Act does deal with the situation which I think the noble and learned Lord had in mind.
I think his amendment is defective because, if we are going beyond the age of 18, there are factors other than education we have to take into account. For instance, take a child suffering from Down's Syndrome, for whom continued provision would plainly be justifiable, that is clearly covered, I think, by Section 29 of the principal Act. It is not covered by the amendment.
What I promise to do is to look at it again in the light of what has been said, without commitment on either side. I do not think there is any difference of principle between us and one wants to do the right thing. There are really two questions to be considered: first, whether after 18 the child should have the same priority as it
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has in pupilage; and, secondly, whether the educational factor is the only one to be considered.
Lord Elwyn-Jones: I am much obliged to the noble and learned Lord for his obviously sympathetic response to the amendment. I emphasised the educational aspect, but I see no reason why it should not apply also to the Down's Syndrome case of the dependent child of the marriage who should at least be protected and provided for until the age of 21.
What troubles me—and I am grateful for the intervention of the noble Lord, Lord Foot—is that the court dealing with divorce matters will be governed primarily by the Matrimonial and Family Proceedings Act, as it will ultimately become, and, as it stands, the first consideration is to be,
"given to the welfare while a minor of any child of the family who has not attained the age of eighteen".
I can visualise a good deal of difficult argument if an endeavour is made to protect the position of the full-time dependent student by reference to another Act of Parliament.
But I also will examine the other legislation to which the noble and learned Lord has referred and we must come back to this matter again. In view of the assurance of the noble and learned Lord, and in the light of my expectation that I shall return to this—if I may say so without threat—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 7 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 8:
Page 3, line 24, after ("shall") insert ("not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded but shall").
The noble Lord said: I believe that we are coming to a very important matter in this Bill. It is one upon which the Law Reform Commission had quite a bit to say and it is one which was adverted to on Second Reading with some amount of emphasis so far as some Members of your Lordships' House were concerned. It is the issue of how far conduct should come into the question of the award of financial provision, whether by way of maintenance or capital provision, in divorce proceedings.
If your Lordships will permit me, I should like to quote from the Law Commission's report of 14th December 1981: on page 13, paragraph 37, the Law Commission state as follows:
"We adhere to the view expressed by us in the Discussion Paper that the courts as now constituted cannot reasonably be expected to apportion responsibility for breakdown in any save exceptional cases. This is because (in the words of Ormrod J.)"—
and these words were in the very well-known 1973 case of Wachtel v. Wachtel—
" 'the forensic process is reasonably well adapted to determining in broad terms the share of responsibility of each party for an accident on the road or at work because the issues are relatively confined in scope, but it is much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown cannot be properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more the shares will, in most cases, approach equality' ".
The quotation from Mr. Justice Ormrod ends there and the Commission continue:
"It seems to us (and our view was endorsed by the majority of professional and academic commentators on the Discussion Paper) that it would be quite wrong to require the court to hear the parties' mutual recriminations at enormous expense to the individuals involved (or, if they have legal aid, to the taxpayer) in those cases where such findings as the court could make would have little effect on the order made".
The Law Commission goon to discuss the matter, but their discussion is wholly on the basis that conduct is not capable of being dealt with adequately and that in matrimonial cases it is not advantageous, unless public opinion and the question of a feeling of justice make it absolutely essential, for the court to inquire into it.
At Second Reading the noble and learned Lord the Lord Chancellor thought that he had adopted this principle and had got the matter right. He quoted the Law Commission report and felt that the matter had been adequately dealt with if one used the Law Commission's word "inequitable". However, it must be remembered that this is not a case where the Law Commission drew up the Bill for our consideration. We were considering a draft of the words which the Law Commission thought ought to be employed in an Act of Parliament. The wording in the Bill could be very misleading and, as I tried to say at Second Reading but not to the entire satisfaction of the noble and learned Lord the Lord Chancellor, it could create difficulty, in my view, for the legal practitioner and very substantially increase the cost of divorce cases.
I ought to say in parenthesis that in the course of these remarks I am speaking to Amendments Nos. 11, 29 and 32.
Page 4, line 7, leave out paragraph (g).
Page 8, line 24, at end insert ("not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded but shall").
Page 9, line 7, leave out paragraph (g).
What the Bill says at paragraph (g) at the top of page 4 is that the matters to which the court shall have regard shall include:
"the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".
As a legal practitioner I can say that if that paragraph were read to any client in an average matrimonial case—in which unfortunately there is considerable bitterness, as a rule, until the passage of time heals the bitterness and more civilised conduct can be hoped for—the reaction of that client, whether it be the husband or the wife, would be, "I can tell you about my husband's—or my wife's—conduct and in my view it would be quite inequitable for the court not to have regard to it". This means that the legal practitioner on instructions would have to bring in conduct and argue before the court that it would be inequitable to disregard conduct. I have no doubt that the adversary on the other side would tell whoever was pleading before the court that it would be quite equitable to disregard that conduct.
I submit that the wording of the Bill has got the matter wrong and creates grave doubts as to how it should be construed. I submit to your Lordships that the view of the courts as to what might be inequitable or equitable to exclude would differ from judge to judge. Therefore, it is our duty to be more precise. I hope your Lordships' Committee will consider that in this amendment we have got it about right. We dispose of paragraph (g) as being a. matter to which the court shall have regard, since we ask for the deletion of paragraph (g) in Amendment No.11 and we insert instead at line 24, after the word "shall", these words:
"not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded but shall".
So there have to be "exceptional circumstances", and then the legal practitioner can say to the client. "There is nothing exceptional in what you have said; this is the sort of thing one hears of in all matrimonial cases, and the court will not accept this as some exceptional matter".
We ought to be quite specific that we are trying to keep conduct out of cases as much as we possibly can, because all of us know that in 90 per cent. of cases—I go as high as that—it is six of one and half a dozen of another, if one knew the whole story.
Apart from that, going into the question of conduct and arguing whether it is equitable or inequitable to go into ordinary matters of conduct and not exceptional conduct merely increases the bitterness between the parties. In many cases, where the children are old enough to understand what is happening, it is clearly

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upsetting to the children of the marriage, who have quite enough to put up with knowing that father and mother are going to separate. I beg to move.
9.36 p.m.
Lord Denning: I should like to support this amendment. I was engaged in the case of Wachtel v. wachtel, in which we had to consider how far conduct should be taken into consideration in these matters. We have long memories of cases in which for day after day we heard trifling evidence of cruelty on each side—one staying out late and the other using abusive words. It went on for days and days, and all at the expense of legal aid! This occurred not only in cruelty cases but also in many others. It was a scandal to the law, the way in which, in divorce cases, conduct had to be taken into account.
It was because of that that Lord Justice Ormrod said what he did: that we should have an end to all those mutual recriminations in such cases. In the case of Wachtel v. wachtel the whole court said that conduct should not be regarded except when it was obvious and gross. That has been a catchword which went too far; so much so that if the conduct of a wife was appalling, it was still disregarded and the husband was, if I may say so, very aggrieved. I may tell the Committee of a letter which I received, and which may amuse your Lordships, after we had decided against the husband:
"Dear Sir, You are a disgrace to all mankind: to let whores break up homes and expect us chaps to keep them. They rob us of what we work for and put us on the street. I only hope that you have the same trouble as us. So do us all a favour—take a Rolls and run right off Beachy Head and don't come back".
That is what a husband wrote when the courts were disregarding conduct altogether; when a wife who had gone off with another man would nevertheless get, while living with him, pretty well the same maintenance and access to the children as a woman who was innocent. No, conduct must be taken into account in such cases as that.
But how can it be done? I feel the same nervousness as the noble Lord, Lord Mishcon, does about the wording as it stands in this Bill—just deciding whether or not the matter is inequitable. It seems to me that that opens the door to all those mutual recriminations and long inquiries which we had in the past. It seems that the way to get back on the right course is simply to use the words:
"not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded",
for it seems to me that this amendment catches exactly what we sought to lay down in wachtel v. Wachtel but which has been misunderstood by other courts. I would support the amendment.
Lord McGregor of Durris: I wish to state to the Committee a layman's argument in favor of this amendment. It is of vital importance to the community and to the general law that the law regulating family relationships should be respected, and it will not be respected unless it is regarded as fair. And to be regarded as fair it must be understood. I
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think, from what the noble Lord, Lord Mishcon, said, it is clear that the amendment will be far more easily understood by ordinary folk than the phrase in the Bill as it stands.
We face really three groups of people who are anxious about this point in the Bill. The first are those who fear, as the noble and learned Lord, Lord Denning, has said, that we may be taken back to the squalor of the inquests on the pathology of marriages; there are those who fear that we may be taken back to a situation in which conduct may be used as a fine upon the guilty parties to a marriage; and there are those who fear that under the present law men are suffering because of the absence of a consideration of conduct. I submit to the Committee that for ordinary folk there must be a touch of conduct, because there are certain circumstances in which people will feel moral outrage if conduct is not regarded. But most people regard those as exceptional circumstances. I think that the amendment as phrased meets those needs of public understanding and respect for the family law which are not to be found in the Bill as unamended.
The Earl of Halsbury: I wonder whether the noble Lord, Lord Mishcon, could explain a difficulty I have with the drafting of this amendment. We have heard much of the difficulty of construing "exceptional hardship" and "exceptional depravity" due to lack of any standard of normal hardship or normal depravity. How far does that difficulty not arise in the use of the word "exceptional" in this amendment? Presumably in contrast to "exceptional circumstances as would render it inequitable" would stand "normal circumstances as would render it equitable". Does not that involve the same sort of difficulty, and, if not, can the noble Lord explain?
Lord Mishcon: I think there is a difference between adjectives that define hardship and adjectives that define depravity—which were the two contexts in which we were judging the word "exceptional"—and circumstances which one states to be exceptional. They are out of the ordinary and that is something that the layman, and the judge, if I may say so with respect, would understand. Our difficulty in regard to the other context was to know when hardship becomes exceptional hardship, when depravity can be tolerated as being perfectly all right and when it becomes exceptional. I do not think the difficulties apply in the same way to this amendment when you ally it to the word "circumstances".
Lord Coleraine: Nevertheless, I think the layman who is looking at the clause is going to ask why the circumstances should be exceptional. If there are circumstances which render it inequitable, why should those circumstances be exceptional? I understand "exception" as meaning very much out of the ordinary. I have in mind the case we have heard of many times before, the young girl who marries a rich man and walks off and takes a share of his fortune. I do not think that in a layman's use of the word that would be called an "exceptional" case: it is a fairly ordinary one. If an ordinary case is inequitable there is no need for the word "exceptional".
Lord Foot: I took the view when I was considering this part of the Bill that the best course was to strike out all reference to conduct. That would mean deleting paragraph (g) on page 4 and putting nothing in its place. I still adhere to that view. However, I am bound to say that I think it unlikely that the Committee would be prepared to accept so draconian an amendment as that and is likely to prefer the amendment moved by the noble Lord, which would, as it were, take up an intermediate position between striking out "conduct" altogether and trying to improve upon the wording of the Bill as it stands. I think that there are evident objections to the wording of paragraph (g), which have been admirably expressed by the noble and learned Lord, Lord Denning.
There are two faults in the present wording. It tends to bring back all those concepts of blame and fault which everyone apparently agrees are manifestly unwanted and it does that without giving any guidance as to what cases fall within the definition of "inequitable" and which do not. Therefore, it seems that the words suffer from every conceivable defect. Nevertheless, it must be borne in mind that this is based on the recommendations of the Law Commission and we must give due regard to that.
My view of the point as it was put by the Law Commission is that this is possibly one of the weakest parts of its recommendations. The noble Lord, Lord Mishcon, has quoted extensively from the beginning of its observations on this matter of conduct. I should like to give two further quotations; from the beginning of paragraph 38 and from paragraph 39 which contains the recommendations. The beginning of paragraph 38 states:
"The second issue relates to the question of identifying these exceptional cases in which the court can not only identify responsibility for the breakdown of the marriage but should also allow that assessment to influence the financial orders that are to be made."
Paragraph 39, which gives the Commission's proposals and recommendations, says:
"We would accordingly propose to preserve a reference to the conduct of the parties as one of the specified list of circumstances to which the court should have regard in those cases where it would be inequitable to do otherwise. Any further elaboration can, in our view, best be left to case law development."
That recommendation seems to suffer from two major defects. The first is that it gives no indication as to how the court is to identify inequitable cases—to use that shorthand—without embarking upon an inquiry into the whole history of the marriage. As the noble Lord, Lord Mishcon, pointed out, how can one tell whether the conduct of a party is conduct that it would be inequitable to disregard unless one has enquired into the conduct itself? If one once embarks upon that process, what is to stop an inquiry into the whole history of the marriage with all that that involves? The second defect in the reasoning is that there are likely, inevitably, to be the widest possible variations between the decisions of different courts as to what constitutes conduct which it would be inequitable to disregard.
Therefore, I do not think that the present wording will do, but I am nevertheless faced with the question whether the amendment proposed by the noble Lord
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is an improvement. I do not think it is good enough but I do think it is better. It is better, first, because it is expressed in this way: it proposes that the general rule should be that you shall not have regard to conduct. It goes on to say that that general rule should be excepted from only in the event of the court finding that there are exceptional circumstances. I agree with what the noble Lord said about the different effect of "exceptional" used in that context as compared with when it is used in connection with depravity and hardship.
The other point of merit in the noble Lord's amendment is that it provides that conduct shall be considered only in exceptional circumstances. I do not think that that is the best that we can achieve. I think that it would be better to delete the reference to conduct altogether, but I have to recognise that the noble Lord's amendment, together with the deletion of the paragraph, is much more likely to commend itself to the Committee than is my simple proposal for the deletion of the paragraph. I am not particularly enthusiastic about it but am nevertheless a supporter of the noble Lord's amendment and would commend it to the House.
9.51 p.m.
The Lord Chancellor: I do not rightly know either whether there is any difference of principle between us or whether the noble Lord, Lord Mishcon, realises quite the effect and the rather radical approach of his amendment, which he seemed to speak of as if it was simply a question of clarification, which it is certainly not.
The first question is, should conduct be considered at all? That was the question raised by the noble Lord, Lord Foot. I think it would outrage public opinion if conduct, either by the man or the woman, were not to be taken into account. It so happens that I had a letter from a Member of Parliament this very morning which included a letter by a lady who was the aunt of the husband. This is what she wrote:
"On 30th September she deserted my nephew, committed adultery and the same night went to live with another man. This man had money to burn and had bought a house and furnished it in which to take her. She is still working full-time. He is also working full-time at the bank, so that there is no home life for the children. No one worries about money or pleasures and yet she can still under the divorce laws demand half of everything, including my nephew's house, which will mean his taking up a mortgage for £20,000, payment of interest thereon and reducing his standard of living. So she gets away scot-free and proposes to give the new fellow the £20,000 to enable him to sell the house he provided for her to buy a much larger house, so the £20,000 will never come back to my nephew or his children. I think this is extremely unfair".
That letter happens to relate to a wife's misconduct.
I know less than the noble Lord, Lord Mishcon. Perhaps it has been forgotten. but many years ago he was actually a practitioner. But my curious experience—such as it is—is that, when it is a question of misconduct, on the whole, I think, men behave rather worse than women. I may be wrong about that. I think one must be even-handed between the two. I have known men knock their wives about and drive them to divorce or desertion. I have known men undermine their wives' health to the extent that they can no longer earn their living. I can think of a case of a woman who worked for me as a part-time secretary.

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She had one breast sawn off for cancer. She had forgiven her husband for adultery about three times. But he went off for another piece of fluff and left her without a penny.
Is it all right to say that conduct does not enter into all these things? I do not agree with the noble Lord, Lord Foot. I think there is a difference here between us. I think that there is something to discuss about principle. I think that conduct must enter into it, and I believe that it would outrage the conscience of mankind if it did not.
I must keep on saying to the Committee, because I think that it is in danger of forgetting it, that we are concerned here only with an amendment to a principal Act. The Act says that conduct shall enter into it. Upon that broad statement of the Act there arrived the case of wachtel. I think that that was a very great advance, if my noble and learned friend Lord Roskill will allow me to say so. I see him sitting there—though not my noble and learned friend Lord Denning, who spoke earlier. My noble and learned friend Lord Roskill was also a party to the decision. That said in effect that we cannot go back to the awful business of who threw a plate of soup at the other on the third day of the marriage. It was degrading, it was hopeless, and it did not help us to decide anything.
So the noble and learned Lord, Lord Denning, invented the phrase—he is a great master of phrase—that conduct shall be disregarded unless it was gross and obvious. Anyone who understands law and judges knows that that was a piece of judicial rhetoric. But for a time it caused great confusion because people tried to apply it literally. Since when a number of cases have arisen, after wachtel. I shall give the names of some of them: Armstrong, Martin, Kokosinski, Evans and Robinson. They have all really shown that the courts have settled down to a state in which they disregard conduct unless it would he inequitable to disregard it.
That, curiously enough, is what the Bill says, and it is what the Law Commission in effect reported, though of course the noble Lord, Lord Mishcon, was quite right in saying that they did not draft the legislation. I hesitate to read, indeed I do not think that I shall read, paragraphs 36 and 37 of the report. But that is what the commission said, and on the whole it said what we have put into the Bill, assuming that the parliamentary draftsman has done his duty all right: and I think that he probably has.
Following that situation, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, prefer to paragraph (g) the amendment which they have proposed. I say respectfully to the noble Lord, Lord McGregor of Durris, that, whatever else it does, it does not make the situation any plainer—and I say it with respect also to the noble Lord, Lord Mishcon—because it destroys with one fell swoop all the case law that has taken place since Wachtel, since it is no longer applicable.
What the amendment does is to have a very peculiar effect. It directs the court not to have regard to the conduct of each of the parties unless in the opinion of the court a condition is satisfied. The condition is the existence of "exceptional circumstances", and they must be such to make it inequitable for the conduct of
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each of the parties to be disregarded. However, by virtue of the amendment, were it carried, the reason for taking conduct into account would not therefore be the nature of the conduct, which it is at the moment, but the existence of circumstances—whatever that may mean—which would make it inequitable to disregard the conduct. Contrast that with the Bill as it stands, contrast it with paragraph (g), which makes the nature of the conduct the decisive factor. Surely that is right.
Furthermore, the effect of the amendment is not to make conduct itself exceptional although that might be difficult to define. It is that some circumstances, apparently external to the conduct, should be exceptional but nonetheless circumstances relating to the conduct. Once the court is satisfied of the existence of the relevant circumstances, it might have regard to any conduct, any trivial matters. It is not easy to see what is meant by exceptional circumstances. But since they must be circumstances such as to make it inequitable to disregard the conduct, they must be in some way related to the conduct. It appears that exceptional circumstances must be the continuing effect of the conduct though not the conduct itself.
Moreover, the way in which the amendment is drafted requires that the exceptional circumstances must be in existence at the time when the court has regard to all the circumstances of the case. Thus, the amendment creates obscurity. It creates obscurity because it will be for the tribunal in each case to decide whether, at the time the court is considering all the circumstances of the case, exceptional circumstances exist. The present current authorities on when regard should be had to conduct of the parties would provide no guidance any longer to the courts. These authorities direct the courts to have regard to conduct when it is such that it would offend a reasonable person's sense of justice to ignore it. That is a very different test to that which would be introduced by the amendment since the effect of the amendment might be to leave conduct out of account for practical purposes. But a good many litigants wish the court to have regard to the other spouse's conduct. The amendment would inevitably give rise to a considerable amount of litigation until the appellate courts had once more established in a number of decisions what exceptional circumstances render it inequitable to disregard conduct.
I believe that the noble Lord's amendment would introduce greater obscurity. Of course, I understand that there are people who think that conduct should not enter into maintenance at all, but I have known cases and I have quoted one that happened to be on my table when I entered the office this morning. My own sense is that the public as a whole would be astonished to hear that conduct should not enter into it. I doubt very much, if we were to talk across the table less publicly, whether the noble Lord, Lord Mishcon, and I would differ very much about individual cases. I am sure that we would not agree with the noble Lord, Lord Foot, that conduct should be disregarded altogether. I doubt whether I should be entirely persuaded by the noble and learned Lord, Lord Denning, that this is as plain a matter as he seemed to think. I will, of course, having regard to what has been said, have the whole of this debate looked into to see

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whether I want to change my mind, but I do not think that this improves the Bill.
If I may point it out, the Law Commission treated conduct and how you phrase the way it should influence decisions under the heading of X, which I suppose is Roman for 10, to two intractable problems. That is in paragraphs 36 and 37. It comes to the conclusion that it should unless it was inequitable; that conduct should only be used as a factor in maintenance when it was inequitable not to do so. I think that this is what we have done in the Bill in paragraph (g) as it stands. But no one is infallible. As said in A Thousand and One Nights, "Allah is all-knowing". But I shall have it reviewed. I suspect that there is no real difference of principle between us. I suspect that the parliamentary draftsman has succeeded in hitting on a better form of words than those requested in the amendment.
Lord Elwyn-Jones: While not agreeing with the noble Lord, Lord Foot, that conduct should never be regarded and that it should always be disregarded, we are nevertheless seeking to avoid the appalling situation with which we are so familiar and have all suffered where conduct comes inevitably to be regarded as the awful inquest into every detail of the matrimonial relationship. I remember one occasion, during a case of this type, appearing for the wife of a gentleman who alleged as an act of cruelty that his wife required him to empty the grate, bring in the coal and the firewood and clean the oven from time to time. I remember the learned judge asking me, "Do you do that, Mr. Elwyn-Jones?" I said, "Constantly, my Lord" and the judge said, "So do I". We won that case.
However, to be serious, the position of the Law Commission on this matter is somewhat interesting. The word "exceptional" comes from their own report. I ask the noble and learned Lord to look at paragraph 38 of the Law Commission report, where it states:
"The second issue relates to the question of identifying those exceptional cases in which the court can not only identify responsibility for the breakdown of the marriage, but should also allow that assessment to influence the financial orders that are to be made".
The amendment, therefore, prefaces consideration of the problem by requiring at the very beginning of Section 25 that there shall be inserted that the court shall:
"not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded".
That creates an entirely different emphasis, in our submission, from that in the present draft of the Bill which lists paragraph (g) as one of the matters to which the court shall have regard. So it becomes, in the light of that approach to the matter, an automatic duty of the court to consider all those items in paragraphs (a), (b), (c), (d), (e) and (f) and then the conduct of each of the parties. So the conduct of each of the parties is immediately subjected to microscopic and, indeed, magnifying glass examination; whereas it could be made clear at the very beginning of the consideration of the matters to which the court ought to have regard in making the financial provisions that consideration of the conduct of the parties should be exceptional.
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I hope, therefore, that the noble and learned Lord will look at the matter again. We are aiming at the same thing up to a considerable point, but what we want to avoid is the appalling list of allegations of cruelty. I do not wish to add any macabre examples to what could be said or, indeed, trivial examples of the kind which I mentioned which really turned divorce proceedings in that type of case, with that type of expectation of proof, into a most odious conflict which ended all possibility of any conciliation, least of all reconciliation.
The Lord Chancellor: I am very reluctant to address the Committee again. I really do not think that there is an issue of principle between me and the noble and learned Lord. I must tell him, if only to amuse him, that he was reading from a different document from the one that I was reading from. Our Bill is founded on Law Commission report 112. I was referring to paragraphs 36 to 39 of that report. I will just read paragraph 39 and ask the noble and learned Lord to compare it with paragraph (g). It says:
"We would accordingly propose to preserve a reference to the conduct of the parties as one of the specified list of circumstances to which the court should have regard in those cases where it would be inequitable to do otherwise. Any further elaboration can, in our view, best be left to case law development".
That is what I accept and that is what the Bill does.
Lord Elwyn-Jones: If the noble and learned Lord will allow me to say so, I was in fact reading from the same document, but from the earlier paragraph.
The Lord Chancellor: I think I still prefer paragraph 39, where they come to a conclusion. However, I shall of course refer this matter back to those who advise me on such things. I really do not think that there is any difference of principle between us. I think we would probably decide the same cases in the same way, whatever form of words we used.
Lord Mishcon: I do not think it would be appropriate to divide the Committee at this hour. In view of what the noble and learned Lord has said, that he is well apprised of the goal at which we aim and that he himself is aiming at the same goal, if he could only find himself somewhere with our team in scoring the eventual goal I am sure the Committee would be satisfied. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne):The next amendment is Amendment No. 9, but perhaps I should inform the Committee that if it is agreed to it will not be possible for me to call Amendment No. 10.
10.17 p.m.
Lord Foot Lord Foot moved Amendment No. 9:
Page 3, line 29, leave out from ("future") to end of line 33.
The noble Lord said: I was trying to absorb the words we have just heard, as to the effect of my amendment upon Amendment No. 10, but I think I understand it. Perhaps I may explain the purpose of my amendment. Under the law as it stands at the

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moment, Section 25(2) of the 1973 Act, as set out in Clause 3 of the Bill, reads as follows:
"As regards the exercise of the powers of the court under section 23(1)(a), (b), or (c), 24 or 24A above in relation to a party to the marriage, the court shall in particular have regard to the following matters—
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future".
There the paragraph comes to an end. Under the Bill, what is proposed is that there should be added to that paragraph the following qualification:
"including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire".
My submission is that those words are both unnecessary and, indeed, undesirable. As it stands today, the existing section already requires that the court shall have regard, not simply to a party's earnings or to what the party has earned in the past, but to the party's earning capacity: and not only the earning capacity at the moment when the decision is made, but the party's earning capacity now or in the foreseeable future. In other words, the present law requires that the court shall have regard to the earning potential of the party concerned.
Therefore, the new words are simply a refinement or, if you like, an elaboration of the old words. The question which I raise by my amendment is whether that elaboration is either necessary or, indeed, desirable. My contention is that it is neither. First. I submit that the effect of these additional words is minimal or, at any rate, marginal. Secondly, I submit that the new words introduce a new element of speculation into the whole process. Under the law as it stands at the moment, the question is: what is the party's earning potentiality? Since the person who is at issue here is usually the wife, the question is, what is the wife's earning potentiality? Under the new words the question is. in what way might the wife be expected to add to her existing potentialities? I suggest that that introduces a new element not only of speculation but of uncertainty into the whole matter.
Thirdly, I suggest that it adds considerably to the complications confronting the court that has to decide this matter. I also suggest that it is a very unattractive complication. I do not see how the court will answer the question of what capabilities the wife might acquire in the future without going into questions of her character. behaviour, conduct and general attitude of mind.
For these reasons, I do not think that these words improve the matter. They introduce this element of speculation and uncertainty. I do not know any reason for thinking that the law, as it has been operating for the last 10 years, has caused any difficulties in this regard. There is no difficulty under the present law for the court in trying to determine what the wife's earning potentialities may be.
On the question of the importance of each party doing everything possible to become self-sufficient, to quote the words of the commission. I suggest that that matter is adequately coped with by the new Section 25A, especially subsections (1) and (2). Subsection (1) directs the court to consider the
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possibility of an early termination of payments, and subsection (2) requires the court to pay regard to their termination after giving the recipient time to adjust. In so far as the Law Commission was concerned with the importance of each party doing everything possible to become self-sufficient, it seems that that matter is adequately covered by the provisions of Section 25A. In those circumstances I beg to move.
The Lord Chancellor: I suppose I have to say something. One is never quite sure whether there is a difference of principle here. The fallacy of what the noble Lord, Lord Foot, has said is that he was always talking about the wife's earning capacity and not that of the husband. As it stands, the Bill is even-handed to both. I expect he has had, in his extensive practice, as I have had in my rather more modest one, experiences where the husband has deliberately limited his earning capacity, especially where he has not married again, to avoid paying maintenance to the wife. In the extreme case, it is not uncommon for a husband to go on to public assistance rather than pay maintenance to his wife and instead of trying to work. In periods of unemployment this is a comparatively easy thing to do. Sometimes he avoids promotion and sometimes he avoids an increase in earnings.
Lord Foot: Before the noble Lord moves on from that point, may I remind him that the Law Commission themselves, when they were considering this particular matter. considered that the real question at issue was the wife's earning capacity? The words I would quote in support of that are that, when they were setting out what are called the policy objectives, the second of the policy objectives was described by them in this way:
"Greater weight to be given to a divorced wife's earning capacity, and to the desirability of both parties to becoming self-sufficient".
In the opinion of the Law Commission at any rate, what they were concerned with here was mainly the wife's earning capacity, as opposed to the husband's.
The Lord Chancellor: I do not need to be reminded of that. I am dealing with the terms of the Bill and with the effects of the amendment. I am only saying that my humble experience, such as it is, is that the thing requires to be fairly evenly handed between the two parties to a marriage, the variable factors in each of which are almost infinitely variable.
I quoted in connection with the amendment of the noble Lord, Lord Mishcon, a letter that I had had only this morning. Let me remind the noble Lord, Lord Foot, just what it says:
"This man had money to burn and had bought a house and furnished it in which to take her. She is still working full-time. He is also working full-time at the bank, so that there is no home life for the children. No one worries about money or pleasures and yet she can still under the divorce laws demand half of everything, including my nephew's house, which will mean his taking up a mortgage for £20,000, payment of interest thereon and reducing his standard of living. So she gets away scot-free and proposes to give the new fellow the £20,000 to enable him to sell the house he provided for her to buy a much larger house, so the £20,000 will never come back to my nephew or his children. She deserted my nephew, committed adultery and…went to live with another man".
She apparently deserted the children, too. The fact of the matter is that earning capacity is a factor which I think has to be taken into consideration: and it is

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totally wrong and contrary to fact and experience to say that one must always talk about the wife's earning capacity or the husband's earning capacity. It is, of course, true. I may remind the noble Lord, Lord Foot, that this was dealt with in paragraphs 28, 29 and 30 of the report of the Law Commission. It said in paragraph 30:
"The response to the Discussion Paper indicated wide support for the view that the courts should be more clearly directed to the desirability of promoting a severance of financial obligations between the parties at the time of divorce; and to give greater weight to the view that in the appropriate case any periodical financial provision ordered in favor of one spouse (usually the wife) for her own benefit—as distinct from periodical payments made to her to enable her to care for the children—should be primarily directed to secure wherever possible a smooth transition from marriage to the status of independence. We believe that this general objective should he embodied in the legislation."
These things have to be looked at in the light of the context, and I myself do not feel that there is any danger whatever that the effect of the words in the Bill as it stands would be contrary to the interests of mothers and children.
In the end I think that one has to make a broad political decision above these matters whether one is going to give greater flexibility to the courts or going to tie them up more tightly. The view that we have taken is to follow the Law Commission in these respects. I think it fair to say that the Law Commission said that it must be accepted that the occasions on which it is possible for the parties to arrive at a final, once-and-for-all settlement on the occasion of their divorce will be comparatively few and almost non-existent where there are young children.
One knows, of course, and so do the courts—because they deal with it every day—that a wife's earning capacity is impaired, and perhaps destroyed, by the duration of the marriage and by the obligation to look after young children of which she has care and control. But I rather doubt whether it is right to do the only thing which the amendment of the noble Lord, Lord Foot, purports to do because the purpose, and I think the effect, of the amendment is to eliminate from the matters to which the court is to have particular regard in consideration of all the circumstances of any case any increase in earning capacity which, in the opinion of the court, it would be reasonable to expect a party to the marriage to take steps to acquire.
If it is true that both parties can err in this respect, I think those things should be in the Bill and not out of it. Whether in practice there is any real difference of principle between the noble Lord, Lord Foot, and me I am not sure, but it seems to me that what is contained in the Bill is better than his amendment. I will, of course, as I always do on these occasions, ask those who advise me to consider what he has said, to relate it to the purposes and policies in the Bill, and to see whether we can improve it either in the way he suggests or in some other way. But my own conclusion at the moment is that the Bill is about right.
Lord Mishcon: It may be convenient—in the hope that possibly we can conclude at least the argument on this amendment before we adjourn our proceedings, so that the noble and learned Lord can, with his usual courtesy, consider the arguments—if I enlarge upon
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what has just been said and do so with due consideration for brevity. I hope to be able to do that in a few short sentences.
As I understand the difficulty here it is this. We are asking the court to decide upon the financial provision which should be made, first of all, for the child and then for the spouse, and are asking the court to take certain matters into consideration. In this part of the Bill we are asking the court to take into account certain matters and we have in mind certain priorities, as I said, the first one being the child or children of the marriage. The Bill already provides, as I see it, for dealing with the financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.
I am not saying that I necessarily support the amendment because there is a later, very important one to be debated which I think clarifies the position for the court, and that I think would be the amendment to be moved later in the Committee proceedings by the noble Baroness, Lady Lockwood. All that we are saying here, and I think all that the noble Lord, Lord Foot, is saying, is that provision is already here for looking at the foreseeable income of the parties. We do not want to go on to say that we include in the case of earning capacity,
"any increase in that capacity which would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire".
If the court is really to carry out that process, I suppose that what one has to do is almost to conduct an IQ examination in order to see whether it is reasonable to expect one of the parties to a marriage not to be a private secretary, for example, but to aim at being a non-executive director of the establishment, or indeed not to be content with being a sub-manager but to be a manager, because if the party were to apply for such a position, in the view of the court a greater earning capacity could be acquired. It is an impossible position for a judge to have to adopt, and the words as they are now in this Bill say precisely that.
I am not saying by any manner of means—and I know that the noble Lord, Lord Foot, will forgive me—that the deletion of the words after the word "future" will necessarily give the court sufficient guidance. I say that because I happen to support a later amendment, which I hope will be moved on another occasion in the Committee stage by the noble Baroness, Lady Lockwood. What I am saying is that, whatever the position, the words after the word "future" should in fact go. I hope that the noble and learned Lord, in his consideration of the whole of the speeches that have been made on this amendment, and especially the speech of the noble Lord, Lord Foot, will take into account what I have tried to say by way of supplementing his remarks.
The Lord Chancellor: I hope I will take everything into account. But I still think that a man who goes on supplementary benefit rather than help his wife and children ought to have that fact taken into account by the court.
Lord Donaldson of Kingsbridge: What difference does it make?
The Lord Chancellor: I think they would treat his application for variation in a downward direction in a somewhat less enthusiastic way.
Lord Donaldson of Kingsbridge: In fact what happens—and I happen to know of a particular case—is that the man refuses to work and the wife does not get any money: that is all. The court cannot do anything about it.
The Lord Chancellor: That is exactly what I think the noble Lord, Lord Foot, was rather overlooking. He quoted the Law Commission in the opposite sense. People rather assume that it is the wife's earning capacity which is being hit at and that it is not an even-handed attempt to stop people not earning in order to get more money, or to give less money, to the persons with whom they are embittered: I think, with great respect, that one is trying to be even-handed as between the two parties to an unhappy situation, and not to take sides. That is what I am trying to impress upon the noble Lord, Lord Donaldson.
Lord Donaldson of Kingsbridge: I must come back once again. There is a very great difference, as a rule, between the man who refuses to earn more money and the woman who does not see how she can. I do not at all like the idea, nor do a lot of other people like the idea—I have heard many complaints about this—of a court telling a woman that she ought to go out and get a job when it is very difficult for her to do so. This has caused great offence—I think rather unreasonably—and I hope that the noble and learned Lord will take it into consideration. It is a very important view of a great many perfectly reasonable people, who do not include me.
The Lord Chancellor: I am glad to know that it does not include the noble Lord. It rather defeats the purpose of his argument. Of course we take into account all possible fears and anxieties which may occur, but we try when we legislate to achieve the result which, in spite of those fears, will prove to be equitable.
Lord Foot: The noble and learned Lord is, of course, quite right in saying that the words of the clause are, on the face of them, even-handed as between the husband and the wife. But the practical reality of the matter is that these words are of particular concern to the wife. This was amply recognised by the Law Commission when they were considering this matter and that, I suggest, was the reason why, when they were stating the second proposition with which they were concerned, they described it in this way:
"Greater weight to be given to a divorced wife's earning capacity; and to the desirability of both parties becoming self-sufficient."
However, I do not want to pursue the matter any further.
But, as a practical matter, these words will be applied to the wife in nine cases out of 10 and to the husband in only one case out of 10. I am greatly obliged to the noble Lord, Lord Mishcon, for having, as he said, supplemented what I have said and for expressing what I wanted to say very much better than
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I did myself. I entirely agree with him that the words which have now been imported into this clause are closely involved with the amendments which we are to consider at the next stage from the noble Baroness, Lady Lockwood. They are intimately connected. Pending the discussion of those amendments, I hope the noble and learned Lord will be good enough, as he has indicated, to reserve his judgment and to consider together this amendment and the noble Baroness's amendments. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: We have probably gone as far as we usefully can tonight. I beg to move that this House do now resume.
Moved accordingly, and, on Question, Motion agreed to: House resumed.
House adjourned at twenty-four minutes before eleven o'clock.