Lords Sitting of 12 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 Carlisle.

Tyne and Wear Metro
Lord Gainford: 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 passengers have travelled on the Tyne Metro in each year since 1979–80.
Lord Lucas of Chilworth: My Lords, the Tyne and Wear Metro has been opened in stages, starting in August 1980. Passenger carryings have been as follows: 5.4 million in 1980–81; 27.6 million in 1981–82; and 40.7 million in 1982–83.
Lord Gainford: My Lords, I thank my noble friend the Minister for those very encouraging figures. Arising out of them, has he any information about how the success of the system compares with the other forms of public transport in the locality?
Lord Lucas of Chilworth: My Lords, the metro is a very effective public transport system which is well used by Tyneside people. It is also a very expensive capital investment. It will cost some £280 million by the time it is finished. As to how it compares with other forms of transport in the locality, I have to tell my noble friend that it is not possible to divide the different modes of transport in terms of their cost, since the authority aggregates the total costs.
Lord Underhill: My Lords, would not the Minister agree that although the Tyne and Wear Metro is a great success it is merely part of the county's integrated transport system? Taking into account the whole of the county transport system, would not the Minister
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confirm that over the last five to six years the increase in passenger numbers has been phenomenal, bearing in mind the very heavy unemployment in the area? Would not the Minister agree that this is due to linking transport policies to the land use and planning policies for the metropolitan county of Tyne and Wear and that it would be very sad indeed if the metropolitan authority were to be abolished?
Lord Lucas of Chilworth: My Lords, to deal first with the last part of the noble Lord's question, there is no question of the Passenger Transport Executive being abolished. The system represents a huge benefit to the people of Tyneside, but it has to be related, as I intimated in my first supplementary answer, to the total cost of £280 million, 70 per cent. of which has to be met by the taxpayer, which is a not inconsiderable sum.
Lord Glenamara: My Lords, is the noble Lord aware that those of us who know the metro system and use it frequently regard it as one of the best underground railway systems in the world and that without it Tyneside would come to a standstill? We regard it as fully justifying the vision of the people who originally planned it. The need now is to extend it, in particular to Newcastle airport. Would the noble Lord say whether there is any plan to authorise its extension?
Lord Lucas of Chilworth: My Lords, of course we accept that it is a splendid system, but I have to repeat that it has to be related to the overall cost. Happily, the Tyne and Wear local authority have been prudent in the level of subsidy which they have attached to transport; they are among the better metropolitan counties. Any proposal to extend the system to the airport would have to be considered on its merits, but the construction costs would be substantial and the financial receipts and social benefits would have to commensurate with its extension.
Lord Glensmara: My Lords, I apologise for pressing the noble Lord, but is he aware that the metro terminates very near to the airport, that there is an old, disused mineral line running the whole way and that the cost of extending the metro to the airport would be very small indeed?
Lord Lucas of Chilworth: My Lords, whether or not the cost of the extension would be very small, it would depend upon the type of scheme and upon whose eyes one were looking through as to whether it was a short or a long distance. Nevertheless, any suggestion to extend the line has to come from the local authority and not from Her Majesty's Government
Baroness Masham of Ilton: My Lords, while paying tribute to the many people who work so hard to provide facilities for disabled people on the Tyne and Wear Metro, could I ask the Minister how many disabled people are making use of it?
Lord Lucas of Chilworth: My Lords, the noble Baroness can certainly ask, but I very much regret that the Minister is unable to answer. However, I shall be delighted to send the information to the noble Baroness.
Lord Hawke: My Lords, can my noble friend say how the fares charged on this metro compare with the extortionate fares charged on London Underground?
Lord Lucas of Chilworth: My Lords, the two systems are not comparable.
Lord Cledwyn of Penrhos: My Lords, while thanking the Minister for paying tribute to this system as an outstanding example of public enterprise, can he give an undertaking to the House that it will not be privatised?
Lord Lucas of Chilworth: My Lords, in answer to the noble Lord the Leader of the Opposition, I am not in a position to give such an undertaking, but so long as the PTE operate the system for the benefit of those who currently enjoy it, at no greater cost than hitherto, I can see no justification for making any change.

Parking Restrictions: Diplomatic Immunity
2.42 p.m.
Lord Balfour of Inchrye: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Metropolitan Police have reviewed the regulations governing the parking freedom for diplomatic cars in Westminster, Chelsea and Kensington; and whether immunity for such cars from "clamping" is still in force.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, I must apologise to the House for the length of this Answer. We have now completed a detailed review of the wheel clamping of diplomatic vehicles. This review has confirmed that wheel clamping of diplomatic vehicles would be in breach of the Vienna Convention on Diplomatic Relations, and that it is therefore not legally possible to apply wheelclamps to such vehicles. Instead we propose to tackle the wider problem arising from the numbers of diplomatic vehicles in London. The
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Government are introducing the following new arrangements to reduce their numbers.
The first new measure arises from the distinction which exists between different types of diplomatic immunity. Representatives of certain international organisations, such as the United Nations and NATO and certain consular staff, are not entitled to full immunity, but only to immunity in connection with acts arising from their official duties. These representatives are at present issued with category "X" registration plates, which are also issued to certain staff entitled to full immunity. In future, "X" category registration plates will be reserved for vehicles whose users are only entitled to immunity arising from their official acts. I am advised that as soon as the necessary re-plating has been carried out, "X" category vehicles, of which there will then be some 400, will be eligible for wheel clamping.
Secondly, we are placing a firm limit on the number of vehicles for which "D" registration plates will be issued. These are plates issued for vehicles used by persons entitled to full diplomatic immunity. In future, issue of "D" plates for official vehicles will be limited to a maximum of one set per notified diplomat per mission.
Thirdly, issue of "D" plates for private vehicles will be limited to a maximum of two sets per diplomatic household. These measures should result in a significant reduction in the number of vehicles exempt from wheel clamping.
Lord Balfour of Inchrye: My Lords, I thank my noble friend the Minister for his reply. May I ask him this: within this very congested area, could not the police and traffic wardens be instructed to request any car which has immunity and is causing a congestion over Christmas time to move on? In the event of the driver declining to observe such a request, could not the driver and the car be subject to a special report to the ambassador or high commissioner concerned?
Lord Elton: My Lords, I shall of course take up with my right honourable and learned friends the proper nature of the Christmas message to offenders this season. I can tell my noble friend that already the police produce a list showing the registration number and the place and nature of the offence, which is a sufficient guide to heads of missions who want to pursue the matter.
Baroness Macleod of Borve: My Lords, can my noble friend say when the orders to which he has referred this afternoon will come into practice?
Lord Elton: My Lords, that will be as soon as the replating exercise is completed. I understand that will take only a few weeks.
Lord Underhill: My Lords, does the noble Lord the Minister appreciate how gratified many noble Lords will be for his answers since the matter was raised in your Lordships' House on 26th July? On that occasion, the Minister said that where a diplomatic car is causing an obstruction, it can be towed away. Can the noble Lord intimate how many such cars have been towed away since the matter was raised on 26th July?
Lord Elton: My Lords, I stand by what I said. Where cars cause an obstruction they are removed. I regret that at the moment I cannot put my finger on the number in question, but I shall let the noble Lord, Lord Underhill, have that information very shortly.
Lord Molson: My Lords, while I recognise the immense step forward which the Government's announcement represents in respect of something that has become an appalling nuisance, may I ask whether the Foreign Office make representations to the heads of missions whose members make unreasonable use of their diplomatic privilege?
Lord Elton: Yes, my Lords, they do. In the case of more serious offences under the Road Traffic Acts, representations are made. I believe that I am right in saying that eight diplomats have subsequently left their posts as a result of such representations.
I can now answer the supplementary question put by the noble Lord, Lord Underhill. The number of diplomatic vehicles removed by the Metropolitan Police in 1982–83 amounted to 219. So far in the current year, the number is 104.
Lord Paget of Northampton: My Lords, is the Minister aware that at the time we granted to the Metropolitan Police the power to exercise such arbitrary punishment we were informed that the power was required (a) to deal with diplomatic cars, and (b) to deal with cars whose drivers committed a number of offences and who has simply ignored the notices put on their cars? Is the noble Lord aware also that neither of those categories have been dealt with, but the police say that they are quite unaware whether cars have a number of offences against them or not? Could that situation not be corrected now that we have computers? Is not the system where cars are "clamped" completely arbitrary, and is it not true that there is no selection at all? Is it not the case that the clamping gang is simply told to go into a particular area and put clamps on some of the cars that they find there? Is not that form of arbitrary punishment quite wrong? Finally, is it illegal for the ordinary citizen to put a CD plate on the back of his car if he so fancies?
Lord Elton: My Lords, the difficulty of dealing with diplomatic cars is a matter I have already ventilated at great length; and I believe that the noble Lord will accept that we are doing quite a lot in that direction to get over that difficulty. As to the frequent offender, the police try to identify frequent offenders; and when they find them, they apply the necessary remedy. But it is not an easy exercise, although I dare say that the use of computers will make it easier. Regarding the arbitrariness of selection as it appears to the noble Lord, the clamping teams are directed into areas where their attentions are most needed. The object of the exercise is to keep the traffic flowing in London when the streets are very congested.
As to placing a CD plate on the back of the noble Lord's car, I am afraid that will not give him any protection at all, unless he has a diplomatic registration plate as well.
Lord Gladwyn: My Lords, while congratulating the Government on their new regulations, which we all
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hope will work, supposing they do not work, in the case especially of "D" plates would the Government be prepared to make a new regulation to the effect that if there are more than three offences the offender should be warned and after, say, six offences he should be declared persona non grata and sent back whence he came?
Lord Elton: My Lords, I understand the frustration of the noble Lord, and I am certain that other countries realise that this sort of conduct does not do anything to foster good international relations. As to taking more draconian steps, I think we should first see what the result of these steps may be.
Lord Nugent of Guildford: My Lords, can my noble friend tell us what will be the total reduction in the number of diplomatic plates as a result of these welcome measures?
Lord Elton: My Lords, the number of diplomatic plated vehicles which will be replated as a result of this exercise and which belong to administrative and technical staff of missions who are entitled to immunity by reason of their actions only will amount to 1,100.
Lord Craigton: My Lords, is the noble Lord the Minister aware that his statement will be widely welcomed by all the traders of Westminster, to whom this has been a great trouble for many years? May I ask the noble Lord—he did not mention this—whether he is restricting these cars to the area of their own offices, because there is a belief that these cars are being parked throughout the whole area.
Lord Elton: My Lords, the immunity of a diplomat with full immunity extends to him wherever he is. The immunity to the other people concerned in this exercise extends to them wherever they are, provided they are on the business which gives them the right to that immunity.
Lord Paget of Northampton: My Lords, would the noble Lord consider supplying the "clamping gangs", as I think they call themselves in the police, at least with a list of the regularly offending cars which have had a number of tickets in the area and have ignored them, so as to give them priority when they are putting on clamps? At present they have no indication at all as to who is a regular offender and who is not. The process is wholly random and very unfair.
Lord Elton: My Lords, the list of the persistent offenders would not be visible to the noble Lord, but I will make inquiries as to whether one can be produced for the use of the police.
Lord De Freyne: My Lords, may I ask my noble friend the Minister this; if the diplomat's car is removed in this normal process, I presume he is bound to pay the normal fee or fine?
Lord Elton: No, my Lords, he is not, though the heads of mission of a number of countries do insist that he shall.
2.55 p.m.
Lord Balfour of Inchrye: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many embassy cars in the London area carry diplomatic immunity; and how often this immunity has been invoked during 1983 in respect of traffic offences.
Lord Elton: My Lords, there are 5,718 cars used by members of foreign and Commonwealth missions entitled to diplomatic immunity. A provisional total of 74,674 fixed penalty notices were cancelled on grounds of diplomatic immunity in the first nine months of this year.
Lord Balfour of Inchrye: My Lords, would the Minister agree that it is about time this one-way traffic of complaints should cease, in that our representatives overseas do their very best to comply with the traffic laws of the countries in which they are serving, whereas in this country some of our diplomatic immunity plate users simply ignore our traffic regulations and there is no redress we have except paper protest?
Lord Elton: My Lords, in my earlier substantive Answer I told the House what steps we are taking. I entirely share the noble Lord's sense of inappropriateness of this sort of conduct. When a person who is entitled to immunity is alleged to have committed a criminal offence the police report the facts of the case to the Home Office and the Home Office then recommends to the Foreign and Commonwealth Office such further action as is considered appropriate.
As to parking offences, the procedure is to produce a list of the places and times of the offences and the registration marks of the vehicles, from which the heads of mission can deduce who is to blame.
Lord Underhill: My Lords, the Minister will recognise the general consternation at the vast figure that he mentioned—some 74,000 cases. Presumably when the new classifications were determined some estimate was made as to what would be the likely reduction in the number of offences. Can he give such an estimate, and can he say whether the Home Office is in touch with the Foreign and Commonwealth Office about whether our diplomats abroad are responsible for similar offences?
Lord Elton: My Lords, as to the second supplementary question of the noble Lord, clamping is only resorted to by 11 countries in the world. Of those, five do not grant automatic diplomatic immunity; in only two instances have members of British missions been clamped and on each occasion they paid the fine, I am assured.
With regard to the noble Lord's first supplementary question, I would rather answer it in the light of experience than by anticipation.
Lord Craigton: My Lords, would the Minister consider, when looking at new regulations, that there
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are vehicles which will have concessions? There are other vehicles that should have concessions. I have particularly in mind firms, like Dyno-Rod, who have to stop and clean the drains, and who are moved on while diplomatic cars are left parked. Would he please look at that?
Lord Elton: My Lords, the differences between the vehicles mentioned in the noble Lord's supplementary question and those we are considering in the main Question are so large that I do not think the question falls within the terms of reference.
Lord Gladwyn: My Lords, if I heard the noble Lord correctly, he said that there were some countries which do not give any diplomatic immunity to foreign representatives. If that is so, why do we give them immunity here?
Lord Elton: My Lords, because we uphold international law, and the fact that some other people do not is no excuse for our not doing so.
Lord Beswick: My Lords, would the noble Lord consider the possibility and the utility of having a copy of the report of these exchanges circulated to the foreign missions here, so that they can see the extent of the concern that there is?
Lord Elton: My Lords, that is a matter for my right honourable and learned friend. I can assure the noble Lord that there is a very close interest in the Foreign and Commonwealth Office in the exchanges in this House this afternoon.
Lord Cledwyn of Penrhos: My Lords, is it not the case that many countries are not signatories of the Vienna Convention, and what steps are Her Majesty's Government taking to press these countries to sign it and bring themselves into line with this country?
Lord Elton: MyLords, I must inquire as to the status of the countries in question as signatories or non-signatories of the convention. I will draw the noble Lord's concern and suggestion to the attention of my right honourable and learned friend.
Lord Nugent of Guildford: My Lords, do the numbers which my noble friend has given indicate that the net reduction of immunity is something of the order of three-quarters?
Lord Elton: My Lords, I think it is rather less than that, but it is nonetheless a very significant reduction.

Cruise Missiles: Reliability
3 p.m.
Lord Jenkins of Putney: 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, having regard to authoritative reports of the unreliability of the cruise missile, they will set up a British technical team to monitor both the assembly and testing of the weapons in the United States and

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their maintenance in this country, and will defer the importation of any further cruise missiles and related material until such a team has investigated and reported.
The Parliamentary Under-Secretary of State, Department of Energy (The Earl of Avon): No, my Lords. As my noble friend Lord Trefgarne told the noble Lord on 15th November:
"The results of United States tests have been made known to us and we arc confident about the safety and performance of the weapon". [col. 1272.]
Lord Jenkins of Putney: My Lords, is the noble Earl unaware of the fact that there has been considerable criticism in the United States on a number of grounds? Is he aware of the fact that the quality control of the manufacturing company, General Dynamics, has been subject to very heavy criticism? Is he further aware that in the rush to produce these weapons at a particular time, for political reasons, much of the work on the software, for example, has been scant and done rather hurriedly? That also has been the subject of criticism in the United States. In the circumstances, is it not a matter of simple precaution, for the safety of our own people, quite apart from the undesirable characteristics of the weapon itself, that we should have our own team to verify whether or not these criticisms in the United States are valid?
The Earl of Avon: My Lords, of course there have been failures, as there would be in any test programme. But the whole purpose of these tests is to expose and iron out faults before the weapon enters service. A number of potential problem areas have been identified and rectified. The United States have made available a great deal of detailed information about the cruise missiles, sufficient to satisfy ourselves that the system is safe. The Government sincerely hope that the Soviet Union will be prepared to reach an equitable arms control agreement that will limit deployment on both sides. That can be the only valid reason for altering the deployment programme.
Lord Gladwyn: My Lords, will the noble Earl allow me to put three brief but, I think, relevant supplementary questions? First, in view of the almost unimaginably horrific consequences of such action, will the Government agree that first use of these missiles from this country will never be authorised by them? Secondly, since, as we all know, NATO policy is, in the last resort, to make first use of such weapons, will the Government reconsider their present attitude towards the acceptance of some real control over their use? Finally, always on the assumption that these missiles have not previously been knocked out by Russian bombs, are the Government satisfied with the proposed targeting policy governing possible use of the cruise missiles on a second strike?
The Earl of Avon: My Lords, I appreciate the noble Lord's three questions. I have heard him ask these questions in the House on previous occasions; but the issue of first use is a different subject from that raised in the Question tabled by the noble Lord, Lord Jenkins of Putney.
Lord Shinwell: My Lords, is it possible to ascertain, either directly or indirectly, what my noble friend prefers—reliability or unreliability?
The Earl of Avon: My Lords, I am grateful to the noble Lord for not addressing the question to me. I can assure him that my answer would be reliability.
Lord Avebury: My Lords, what representations were made by the Government to the broadcasting authorities to allow Mr. Heseltine to expound nuclear policy on all the channels of radio and television? Is the noble Earl aware that no producer would have invited Mr. Heseltine to express those opinions if the decision had been based on public interest alone? Is the noble Earl further aware that if such pressure is brought to hear on the broadcasting authorities then in the end we are no better than the Soviet Union?
The Earl of Avon: My Lords, I am afraid that that is wide of the Question, and I do not know the answer.
Lord Molloy: My Lords, will the Minister please explain exactly what he meant when, in replying to my noble friend Lord Jenkins of Putney, he referred to the "safe performance" of these missiles? One understood that the object of them was to wipe out millions of human beings as quickly as possible. Secondly, can the noble Earl say whether the degree of safety about which he is assured includes the moving of these vehicles from place to place throughout Great Britain as has recently been stated in what can be described as the authoritative press?
The Earl of Avon: My Lords, in reply to the noble Lord's first question, I was talking about tests which have been taking place in the United States. Of the major tests, seven out of eight were good, and I think that is a high proportion as tests go. As regards stringent safety precautions taken over every aspect of design, handling, storage and movement of nuclear weapons, these make the possibility of accidental release of fissile material into the environment very remote indeed. There has never been such an accident involving nuclear weapons in this country, although they have been deployed here for more than 30 years.
Lord Bishopston: My Lords, will the noble Earl accept that the possibility of an accident, even though remote, will cause grave concern to the public after seeing the film this weekend? In view of the fact that the cruise missiles are mobile, will the noble Earl ensure that the maintenance of them is such as to guarantee the safety of the people in the areas where they may be stationed?
The Earl of Avon: My Lords, I think I responded to the latter part of that question in my answer to the noble Lord, Lord Molloy. As regards the dramatised version on television this weekend, that serves to underline the need to ensure that such an occurrence never happens. This means that it is even more important to maintain the deterrent effect—a view that I think is widely shared in this House—and makes the Government and the NATO case for cruise missiles more pertinent than ever.
Lord Brockway: My Lords, in view of the effect that any accident involving the cruise missiles might have on a large population around them and what is said in the experts' report to the United Nations, would it not be reassuring to have leading scientists in this country carry out an investigation which had the confidence of the people?
The Earl of Avon: My Lords, my right honourable friend is, of course, advised by the Nuclear Weapons Safety Committee. May I also inform the noble Lord, in referring to the launching of cruise missiles from this country, that the warheads are armed only in the final stages of the flight.
Lord Jenkins of Putney: My Lords, will the noble Earl permit me, through him, to tell my noble friend that the objection to the cruise missile is that it is essentially a destabilising weapon and that to have it unreliable as well makes it not only destabilising but could also accidentally plunge us into serious nuclear damage, if not worse? Under those circumstances, will the Minister discuss with his colleagues the possibility that they look at this whole question again, if for no other reason than the safety of themselves and their families?
The Earl of Avon: My Lords, I hope that the responses I have made this afternoon will have led the House to agree that this is a reliable weapon. Both NATO and ourselves considered this very carefully. It is a plan in order to bring up to date our nuclear defences, and in some measure to deter the threat. That, I believe, we all welcome.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Gowrie 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 NGA dispute. This will be followed by my noble friend Lord Lucas of Chilworth repeating a Statement on British Airways privatisation.
It may be for the convenience of the House if I were to announce that dinner will be available this evening.
The Committee stage of the Matrimonial and Family Proceedings Bill will be adjourned at approximately 7 p.m. for a short period. During this adjournment the Farm Structure (Payments to Outgoers) (Extension of Duration) Scheme 1983 and the Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 1983 will be taken.

Matrimonial and Family Proceedings Bill [H.L.]
3.9 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 3 [Orders for financial relief after divorce etc.]:
Baroness Lockwood Baroness Lockwood moved Amendment No. 10:
Page 3, line 33, leave out ("take steps to acquire") and insert ("achieve having regard to that party's age, family commitments, training, continuity of work experience and the availability of employment opportunities").
The noble Baroness said: This Amendment refers to the new Section 25 (2) (a). It relates to the powers of the courts under Section 23(1)(a), (b) and (c) and Sections 24 and 24A of the present Act; that is, to the financial provisions and property adjustment. It may be for the convenience of the Committee if at the same time I spoke to Amendments Nos. 17, 18 and 19.
Amendment No. 17: Page 5, line 10. after ("consider") insert ("having regard to that party's age, state of health, family commitments, training, continuity of work experience and the availability of employment opportunities").
Amendment No. 18: Page 5, line 19, after ("consider") insert ("having regard to that party's age, state of health, family commitments, training, continuity of work experience and the availability of employment opportunities").
Amendment No. 19: Page 5, line 33, after ("may") insert ("having regard to that party's age, state of health, family commitments, training, continuity of work experience and the availability of employment opportunities").
These are amendments to the new Section 25A, which also relates to the same sections of the present Act. I would draw attention to the fact that in Amendments Nos. 17, 18 and 19 there have been added the words "state of health". It was intended that this addition should also be in Amendment No. 10, but it has been left out. I ask that this be taken into account.
Your Lordships will see that in Amendment No. 10 we are asking to take out, at the end of paragraph (a), the words, "take steps to acquire". As a consequence, we seek to add, after the words,
"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",
the words,
"achieve having regard to that party's age, family commitments, training, continuity of work experience and the availability of employment opportunities".
In the subsequent amendments we are asking that those words, with the addition of the words "state of health", be added.
In moving this amendment and speaking to the other amendments, it would be fair for me to point out that the reasoning behind them was made clear on Second Reading. The noble and learned Lord, the Lord Chancellor and several noble Lords on the Cross-Benches were reassuring in their interpretation of Part II of the Bill and indicated that in their opinion there would be little difference in the treatment of the majority of divorce cases coming before the courts, particularly where children were involved or where the wife was elderly. Nevertheless, there is still widespread concern about Part II of the Bill. Many organisations,

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including the National Council of Women, have approached me about this.
It may be of interest to note that I had a very sad letter only a few days ago from a 64 year-old woman who had been divorced. She asked whether her monthly allowance would be stopped. She went on to point out that, while her husband and his new family were living in luxurious circumstances, with two houses, if her allowance was stopped she would have to sell her house because she could not possibly go out to work at the age of 64. She asked whether she should consult a solicitor. I was able to reassure this particular woman, but I think that the Bill itself must be able to reassure others.
The Committee must be concerned about the impact of the Bill on those who are involved in the circumstances of divorce, and on public opinion generally. It has been put to me that the effect of the Bill could be to cause women to be continually concerned about the future consequences of any actions they may take. They could think, "If I give up my job in order to look after my children, might I be jeopardising my financial security in the future?" It has also been put to me that the whole burden of proof appears to have been transferred to women, or to men in those few cases where they are the financially dependent ones. Surely this is not the wish of the Committee.
The purpose behind this amendment is to provide reassurance on these points. The amendment spells out more clearly what factors should be taken into account in considering the financial consequences of the divorce. It is not just a question of elderly women, although we have to be concerned about them, and age is mentioned in the amendments. We also have to be concerned about the health of the parties. That fact is mentioned in the second two sets of amendments.
Where there are young children, of course the interests of the children in future will be paramount; but there is a whole range of family commitments which may not be concerned with young children. For example, there may be a severely disabled child in the family—a child who, in years, has grown to adulthood. There could be an elderly relative or relatives within the family who need care and attention. It may be a relative of the husband. Such a person or persons would in many cases have been looked after by the wife, often involving her giving up her job. The whole question of family circumstances needs to be taken into account.
There are also other factors of which we need to take account: for example, the age at which the marriage took place, and whether one of the parties had had the opportunity to pursue further education or training before interrupting that training for family commitments, and whether there is scope for an untrained partner now to recommence such training. Another factor is whether there has been continuous or interrupted employment, and what effect the interruption of employment has had on the comparative earning and promotional prospects of one of the parties.
For example, the two partners may have started out at the same level, perhaps as lawyers. One might have progressed into a senior partnership or into seniority in
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chambers, whereas the other had left the profession at the first rung of the ladder by mutual consent of both parties in order to have and bring up a family. Again, the two partners may have started out in industry as scientists or engineers training for management, and one may have dropped out during the period of management traineeship, whereas the other progressed. What effect would this have, not only on the future earning prospects of the two but also on the pension prospects? Clearly the party to the marriage who dropped out would suffer severely in qualifying for a future pension. Finally, we have to take account of current availability of employment in all these circumstances.
I know that the noble and learned Lord the Lord Chancellor may tell us that these things will be taken into account by the courts, but I wonder whether they will be taken into account equally by all courts. If I may say so, not every judge is a Lord Scarman. The majority of settlements are made by registrars. At paragraph 20 of the Law Commission's report there is a reference to the views of the registrars. It would seem that they were asking for guidance rather than that the matter should be left wide open.
In paragraph 19 of the Law Commission's report two objectives are referred to—two objectives which it says are
"intrinsically desirable, but perhaps mutually inconsistent".
They are, first, that the law should be certain and predictable in results, and, secondly, that the law should achieve justice and fairness, which, it is said, involves flexibility of approach. I would suggest that the amendment would assist in the first objective in giving guidance on the kind of factors that the courts would need to consider. Yet at the same time the amendment takes account of the second objective and it leaves sufficient flexibility for the courts to consider individual circumstances.
The noble and learned Lord the Lord Chancellor is very keen on our observing the even-handedness between the parties which is provided for in the Bill, and I would suggest to him that the amendment, too, is even-handed in its approach. It would allow, where there are difficulties, for one of the partners whose contribution to the marriage had placed him or her at a disadvantage, and at the same time it would allow the courts to take into account the partner who may be a shyster, and who was seeking to avoid responsibility and obligation. I believe that in that sense the amendment meets the dictum which the noble and learned Lord has been advocating from the Woolsack. I beg to move.
3.22 p.m.
Lord Rawlinson of Ewell: I can understand why the noble Baroness has proposed the amendment, which she has moved with such grace and skill. I can also understand the widespread concern which she expressed and which has been expressed to her. But it seems to flow from what in some cases is the most extraordinary amount of distortion which was put about before the terms of the Bill were properly examined—terms which, fortunately, are now being debated in your Lordships' Chamber.
That the unfortunate lady of 64 years of age should think that her allowance is to be stopped is of course

15
very worrying, but the noble Baroness has immediately reassured her that there is nothing whatsoever in the Bill which will at all affect her position. Could one really have a better list of the factors, comprehensively set out, that the court should take into account when deciding such matters than is contained in the proposed Section 25, in particular in subsection (2)(a)? Therefore. it seems to me, with respect to the noble Baroness. that the words that she is proposing are unnecessary. otiose. What does the court have to look at? The court has to look at,
"the income, earning capacity, property and other financial resources which"
each of the parties has. The court looks at that, and it has put before it what the husband has, what the wife has, what is the husband's earning capacity and what is the wife's earning capacity.
No one would consider that a woman who has devoted years of her life to the bringing up of a family can in middle age be expected to begin some kind of substantial income-earning activity. No one would think that; it would not be reasonable to do so. The Bill goes on to refer to earning capacity in the foreseeable future; that is what one can foresee, or what a court must look ahead to. The Bill also alludes to "earning capacity" and
"any increase in that capacity which it would in the opinion of the court be reasonable to expect"
of a party to the marriage. What would be reasonable to expect of a party to a marriage who at the age of, say, 50 is deserted, the husband going off with someone else?
It has been said that all courts are not the same. But the Court of Appeal lays down and give guidelines, and soon it will consolidate orders to the extent that courts will see what they must take into account if to begin with there is any uncertainty. They have to do this all the time.
Therefore, I should have thought that the Bill sets out, especially in the clause, everything that a court needs to take into account in order to be fair to both parties, in particular having regard to the kind of person I think the noble Baroness has in mind. In my opinion, with great respect I think that the words proposed in the amendment are otiose, and I believe that as at present drafted the clause has sufficient power to do that which the noble Baroness, and I think all noble Lords, want to seed one in future.
Baroness Wootton of Abinger: While I have great sympathy with the purpose of the amendment, I think that both the Bill as it stands and the amendment are attempting the impossible. They are trying to define all the various circumstances in which the partner in a marriage where there is divorce may or may not have adequate income. Surely the only point at issue is that if in a marriage a woman—to take the more probable case—has for some time been supported entirely by her husband and then there is a divorce, she should have something to live on in future. Surely all that is needed is, as I think the Bill at present states, that there should be reference to
"the income … and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future …".
16
One cannot really define whether the income is to be gained by her earning in the way that she had been doing, or by going away and spending money on acquiring new qualifications in dubious expectation that she will obtain a better job. One cannot define all the detailed cases which my noble friend has gallantly attempted to add. Do we not want a perfectly simple statement to the effect that the woman ought to have the prospect of a reasonable income, having regard, as the Bill states later on, to the standard of life to which she has been accustomed?
Many things which have not yet been mentioned might happen. Her father might die and leave her a lot of money very shortly after the divorce. She might, after all, go and live with a rich man, who would take the place of her husband and who might indeed have been involved in the divorce. Surely we are not entitled to require in the Bill in such detail particulars of where the money is to come from. Doubtless in the applying of the principle that she must have an adequate income inquiries will be made as to where it comes from. Surely all that the court ought to be satisfied about is that she has a reasonable prospect, having regard to her standard of living. I rather wish that my noble friend had not attempted to be so detailed.
Lord Donaldson of Kingsbridge: I should like briefly to reply to the noble Lord. It seems to me that he ignores the fact that in most cases of the kind that we are discussing the awards are made as consent orders, with negotiation of the amounts to be paid taking place between solicitors before the registrar. So this is not a general criticism of the courts, which one may well say could be trusted to act properly. It is much more the point that, in trying to get the most that he can for his client, the solicitor refers to the Bill and puts forward an argument which in due course the other solicitor gives way to. 1 am told that that happens quite frequently.
It seems to me that to include in the Bill a provision of the kind proposed, however unnecessary it might be in terms of instructing judges, would be very useful altogether. I believe that the amendment can do no harm, and it might do much good. Certainly in the case of a husband who is receiving maintenance one can see that there is a great necessity to ensure that he goes out and gets a job, but the case of a woman is quite different.
We have had all these arguments about the earning power of the woman being very different to that of the man. We know them. The real point, as made by the noble Baroness, Lady Lockwood. is that, if a very large number of very underprivileged people are made extremely worried by the Bill as it stands and if the words that are to be added to the Bill will in no way depreciate the value of the Bill, the least the Government can do is to agree to them. I have great pleasure in supporting the amendment, with all its difficulties.
3.40 p.m.
The Lord Chancellor: I am glad that the noble Baroness has ventilated this amendment, if only to hear her say that she had reassured the unfortunate lady of 64. I cannot imagine the cruelty of people. It is being done deliberately to some extent by pressure groups which have unsettled and upset people who

17
cannot possibly be adversely affected by the Bill. It says a great deal for the noble Baroness that she had the courage, the integrity and also the humanity to reassure this particular person. I have received many such letters. I have done what I can to do the same. It is, in fact, the case, as the noble Baroness, Lady Wootton said, that the Bill amends the principal Act only in a relatively numerically unimportant number of cases. It amends the Act both as regards men and as regards wives.
I was looking only today, because my daughter, who practises in this branch of the law, drew my attention to it and to the matter of a man who had deliberately gone on public assistance rather than pay his wife maintenance. His earning capacity would be taken into account specifically under the Bill. The measure is designed to deal with a numerically unimportant section of cases. I think that the noble Baroness would probably have been wise to refer to paragraphs, 26, 27 and 28 of the Family Law Report rather than those to which she did refer. Those paragraphs indicate the very strictly limited purpose of the section in its new form for this purpose. It gives effect to the comments that came from the consultation process and which led to the result, contained in paragraph 27, where the Law Commission says:
"We think that it would be desirable to require the court specifically to consider whether an order for a limited term would not be appropriate".
The report goes on to say in paragraph 28 that it would of course not affect the kind of case that the noble Baroness had in mind and that it would affect a comparatively unimportant minority of cases—numerically unimportant, but all these cases are important for the purposes of those who are brought into account and whose life is in question.
The fallacy behind the speech that we have heard from the noble Lord, Lord Donaldson, is this. It is, I think, a fallacy that to some extent underlies some of the amendments. The noble Baroness rightly spoke to a number of them simultaneously, but, as I shall try to show, they are not to be treated quite in the same way. My attitude towards them will differ as to which of two classes they fall into. You cannot, of course, draft an Act of Parliament simply to allay public concern. Draftsmanship has not that purpose and cannot have that effect. It must be an instruction to the courts, when you are dealing with judicial proceedings, to do something and to do something in a particular way. That was brought out clearly by the noble Baroness, Lady Wootton, and by my noble and learned friend Lord Rawlinson of Ewell.
The drafting of this Bill has to be done for professional reasons and not for public relations reasons. I hope, however, that these debates will bring out to those potentially affected by the Bill exactly what we have in mind. The burden of proof is not changed by Section 25(2)(a) and could not be. But, if I may say so, the difficulty about the amendment is that, when you are dealing with earning capacity—this was very much what my noble and learned friend said—you want to take into account, not a different set of criteria to what are generally taken into account by Section 25, but the same set of criteria. If, therefore, you enumerate in an amendment a different set of criteria, you are damaging the Bill. If you reiterate the same set, you are adding nothing to it.
18
Therefore, intrinsically the amendment can he otiose if it reiterates the same set of criteria and must he damaging if it sets a different set of criteria. Having said that, the two sets of amendments are quite different. The first is the one that we are technically discussing relating to Page 3 line 33 and its corresponding amendment to Clause 8 that deals with summary proceedings. I forget the exact number, but these amendments go in pairs. Since the amendments were put down, I have consulted the draftsman and, so far as these amendments are concerned, I cannot accept them. But the draftsman accepts that, with regard to the two—namely the one we are discussing in line 33 and its sister amendment in summary proceedings under Clause 8—he does accept that he would like to have another look to see whether the criteria set out are the right criteria. To that extent, I should like to consider this amendment.
When we come to those amendments that alter Section 25A, which are in the same language but are applied to a different section—Section 25A of the principal Act, which is, of course, the latter part of this Part of this Bill—the objection in principle is that Section 25A deals solely with the question of whether the court is to make the direction dismissing the application with a direction that the applicant shall not be entitled to make any further application. The objection in principle is that the court has the power under Section 25A only after it has done what it has to do under Section 25.
The amendments in so far as they affect Section 25A—I prefer not to refer to them by number because I shall probably get it wrong, but the noble Baroness will know what I mean—are objectionable in principle not because they are wrong-headed but because they apply the criteria in the wrong place. But those which deal with Section 25 I shall consider again because the draftsman himself wonders whether the criteria are properly drafted at this stage. I am anxious only to get the answer right. If the noble Baroness will take what I say in the spirit that is meant, I hope that she will withdraw the amendment on the undertaking that I have given.
Lord Donaldson of Kingsbridge: Before the noble and learned Lord sits down, can I be clear that it is the first amendment on the list of amendments that will be reconsidered?
The Lord Chancellor: Yes, it is the first amendment. Each of these amendments is duplicated quoad the summary proceedings in Clause 8. So it is the first amendment and its twin sister, if I may so put it.
Lord Mishcon: Of course the Committee will be grateful to the noble and learned Lord for his statement that, in respect of at least one phase of this difficult matter, there will be reconsideration by the draftsman. I believe that, if I may say so with deep respect, the matter is getting a little confused.
In order to save repetition, we are speaking to a group of amendments, and the noble and learned Lord, quite inadvertently if I am right but quite properly if I am wrong, said that he was not prepared to accept this amendment if it related to Section 25A. If the noble and learned Lord would be gracious

19
enough, as he always is, to look at Section 25A, he will find that that section not only refers to the matter about which he spoke, which is the dismissal of a wife's application for maintenance, which means that she cannot apply again, but it also deals with the right to terminate in the sense of saying that there shall be a periodical payment and after that it shall terminate. Therefore, in fact, we are dealing with a very sensitive matter.
I accept from the noble and learned Lord that it is a good idea not to incorporate in a Bill a public relations exercise. Indeed, it ought to be a precise measure so that the citizen knows where he or she stands and so does the court, if the court is the party to administer the Act. I have to say, and to say deliberately, that, in spite of the fact that my noble friend is able to write to a dear lady of 64 and render her a little more tranquil than she was before she communicated with my noble friend, the fact of the matter is that the media have put this Bill about as being a Bill which will now enable husbands to go to the court and persuade the court that the wife ought to be independent; that if she is at home looking after the children or has no children at all and happens to be slightly ill, nevertheless she could possibly take part-time employment; that this can be done regardless of age; that this can be done on the basis that the court is now to examine whether it is a good idea to render the husband liable for a certain period of time but not to make it acontinuing obligation throughout his life if the wife who has been divorced does not remarry. That is the fact.
It is also the fact that there are many practitioners, who possibly ought to know better, who think that this is the purpose of the Bill. They have carried it from the commission's report, which does not say that in so many words, but which infers that a new power is to be given and a new spirit is to go into our matrimonial legislation. As we all know, the noble and learned Lord the Lord Chancellor is a man of deep compassion. He has spoken very properly of the wives who need not be worried. I can only tell the noble and learned Lord that I wish everybody had his compassion, and I wish that every registrar who dealt with every little case that came before him—and I am not dealing with the case of the millionaire—had the same understanding, compassion and experience as the noble and learned Lord and, indeed, had such an able daughter who practises in this field. Then he would be properly guided, as, I am glad to say, I have been properly guided by the noble and learned Lord's daughter in cases of this kind.
What does the Bill say at the moment? At the moment the Bill says that the court can, and should, take into account the earning capacity, the possible future earning capacity, the possible capability of earning in order to deal with financial provision and in order to deal with periodic financial provision, secured periodic financial provision, and complete termination. With great respect to the noble and learned Lord, Lord Rawlinson, I see nothing otiose here at all; I see something meaningful, I see something instructive, I see something descriptive, and I see something that gives guidance. The amendment says that, before one starts thinking about earning capacity—and the practitioner will be told this before he goes into court—and before one thinks that one can
20
go into court on behalf of every husband to get every maintenance order terminated, amended or made for a period and then terminated, one will have to say to the client, "You cannot do it, because the court has to take into account the state of health, the age, the earning capacity, whether there are children, the length of the marriage and matters of that kind", which are set out in this amendment.
I ask myself this question: what harm can it do? It may be that one can put the description "otiose" to it, but, if "otiose" does no harm, I say to the noble and learned Lord, Lord Rawlinson, that I am prepared to be otiose, possibly to people who are a little unintelligent and who need guidance—and there are some fellow practitioners of mine who may, indeed do, deserve that description, as I may deserve it myself. The fact of the matter is that the registrars who deal with these medium-size cases every day—for it is rare for these cases to go before a judge—have specifically said, "Please give us guidelines and we will know where we stand". I tell noble Lords, and I tell them frankly, that withinthe profession there are registrars who are known as "wife's registrars" and there are registrars who are known as "husband's registrars". We all know that if we are acting for a wife, we pray to God that we do not go before a "husband's registrar", and vice versa.
Therefore, it is a fact that the court needs guidance, the practitioners need guidance, the public need guidance and the media need guidance if we bring forward alterations of this kind which the noble and learned Lord says are meant to apply to a very small percentage of cases. The general impression is that it applies to a great number of cases and we ought to be precise, we ought to know what we are doing. It may help the noble and learned Lord and the draftsman to know that the Committee of your Lordship's House is behind this amendment, and I believe that the Committee ought to express itself to that effect.
The Lord Chancellor: I do not want to make a second speech, but, in the light of what the noble Lord, Lord Mishcon, has said, I think I must, because I do not think he quite understood my point to begin with. Of course, like the poor, the media are always with us and of course they have distorted this Bill. They have done so in exactly the sense the noble Lord expressed with rather greater indignation than I felt it right to express from the Government Front Bench, but which I share.
However, the underlying point I was making about this particular amendment—that is to say, line 33—and its twin sister in Clause 8 is a very simple one. The criteria which are applied in the rest of Section 25 are either the same as those which apply to earning capacity—for instance:
"(a) the … earning capacity, property and other financial resources";
in lines 1 and 2; the:
"financial needs, obligations and responsibilities"
in paragraph (b):
"the age of each party",
in paragraph (d); and their:
"physical or mental disability"
in paragraph (e), and so on. All are different. If they are

21
the same—and I maintain that they should be the same—mere repetition, which is what the amendment does, will not add anything, it will not take anything away and, as a matter of fact, it will not reassure anybody. If it is said that, in the last words of paragraph (a), we apply different criteria, then it is objectionable. That is the very simple point I was making.
I said to the noble Baroness that, in accordance with the advice I had received from the draftsman, he is not wholly satisfied with his own handiwork as to the criteria to be applied generally. That may involve adding, subtracting or amplifying words, not only at the place at which the noble Baroness seeks to insert them, where the objection which I have tried to outline is applicable, but so that it will make it a little more precise, a little more clear, and a little more effective. However, it will do so effectively across the section and not simply to the last line in paragraph (a) which is where this amendment is placed. I hope that the noble Baroness will therefore find it possible to withdraw this amendment on the undertaking I have given, to the extent that I have given it; that is to say, this one and its twin sister will be reconsidered by the draftsman before we come to Report.
Lord Mishcon: I hope that the noble and learned Lord, and indeed the Committee, will not think me churlish in rising again, nor will they think me churlish in dealing lightly with an undertaking that comes from the noble and learned Lord, which all of us regard with the greatest of respect. I must say in all fairness that we have reached the Committee stage and I do not know what the draftsman will produce at the Report stage. If he produces something that is satisfactory it can be an amendment to what we are amending now. With all this misunderstanding and the need for guidance, if I may say so with deep deference, I want the Committee to express its view as to the need for matters of this kind to be taken into account. I see no harm at all in that. I see only good in that, and I therefore ask the Committee to vote on this amendment.
The Lord Chancellor: The noble Lord is entitled to do it himself, but I think it would have been a greater courtesy if he had allowed the noble Baroness, Lady Lockwood, to take an attitude before rising.
Lord Mishcon: I respectfully agree, but I can only tell the noble and learned Lord, in case he thinks me discourteous, that I had of course already discussed the matter with the noble Baroness beforehand.
Lord Donaldson of Kingsbridge: I should like to say from these Benches that we shall inevitably support the amendment; but if I had been handling it I should have waited to hear what the draftsman had to say.
3.53 p.m.
Lord Foot: I hesitate at this late stage in this little debate to intervene at all but I am left in some doubt as to where we now stand. I presume that, if we accept the advice of the noble and learned Lord that we should wait and see what new language the draftsman produces, that would mean that this afternoon and this evening we shall not be discussing any further the principle behind this series of amendments.
22
My own view is that these amendments in the name of the noble Baroness, Lady Lockwood, are probably the most important amendments that we have had to consider throughout this Bill. They are important for the reasons which she gave. It is perfectly correct, as she and the noble Lord, Lord Mishcon, have said, that it is these provisions in Part II—that is to say, Section 25 and Section 25A—which are the matters which have caused the gravest alarm among the community generally.
It is perfectly obvious to me why that is so. It is all very well for the noble and learned Lord to say over and over again, as he does, that this Bill is even-handed and that it applies as much to men as it does to women; but the fact of the matter is that the great majority of maintenance payment orders are in favour of women. If therefore you alter the law about the making of maintenance orders it is obviously a matter of much more concern to women generally than it is to men. That is why to talk of these amendments being even-handed is not a correct way of stating the matter.
There is no doubt that there has been the gravest alarm among certain sections of the community, and particularly among women, about the effects of the changes which are made by this Bill. I think that that alarm is justified to this extent: the substance of Part II is to make an alteration in the law on the whole matter of maintenance payments. It produces new criteria for deciding when a maintenance order is to be made. That is the effect of the new words in this Section 25(2)(a) which are being added by this Bill. That is the effect of the whole of Section 25A. It is to make changes in the matters which you have to consider when a court is deciding whether to make a maintenance order at all, and what the terms of that maintenance order are to be.
I think it is right as a matter of principle that in the statute you should put in words which will make the effect of the statute clearer than it was before. No harm can be done. If the intention of the Government is not to do anything which would adversely affect a certain class of women, and if all these women are in a state of ignorance as to what the Bill does, and if you want to cure that, then surely the simplest way of doing it is to add words which make even clearer the purpose of the Bill. Therefore, I hope that the noble Baroness will not withdraw this matter at this stage. As I see it, if that is done there will be no further opportunity at the Committee stage of discussing this matter at all and we should have to wait to see what is served up to us at the Report stage. That would be unfortunate.
May I say one word in an attempted reply to the noble and learned Lord, Lord Rawlinson. A matter which I think he has overlooked when he says that these new words are otiose is that if you look at Section 25(2)(a) the concluding words of that paragraph are new. It was decided by the Government that the words as they originally stood under the 1973Act were insufficient. It was decided by the Government that merely to ask the court, or to require the court, to have regard to earning potential was not good enough, and you had to elaborate that and put in the additional words which we find as the last five lines of that paragraph.
It was the Government's decision that the old law was not good enough, was not exact enough, was not

23
precise enough, and they therefore added the words which we find there which are a qualification of the words "earning potential". All we are asking—and all that the noble Baroness is asking, is that there should be a further qualification of the words which the Government have now decided to insert in order to ensure that those anxieties, about which we have heard so much, might be allayed. I think that the Committee has got itself into something of a difficulty; but I cannot see that any harm would be done if the noble Baroness saw fit to take the feelings of the Committee, not necessarily on the precise words of the amendment but upon the spirit in which it is advanced.
Baroness Ewart-Biggs: May I add a brief word? Without knowing what the criteria of the Government draftsman will be, may I put the case that the qualifications represented in this amendment are even more important to certain categories of wives who are more vulnerable to divorce than others. I should like to put the case of the category of wife who spends most of her time abroad. These are service wives—and in particular Diplomatic Service wives—who if they have a profession are unable to implement it when they are abroad. If they do not have a profession they are not in a position to gain any kind of other qualification which wives living at home with their husbands in this country would be in a better position to do. Although I do not want to make a special case of diplomatic and service wives, I should like to cite them as an example to put into sharp focus the problems of wives generally who would have to contemplate the clean break which is included in this clause.
The Lord Chancellor: I do not wish to repeat myself, but there are two quite separate classes in this amendment, one of which is acceptable in the sense that I should like to consider it again, and the other which is objectionable in principle. I shall not explain again exactly why because I thought I had explained it clearly enough. If I did it can be read in Hansard tomorrow.
There is no difficulty about what the Committee must do. The noble Lord, Lord Mishcon, without giving the noble Baroness, Lady Lockwood, an opportunity to speak for herself, but having discussed it with her no doubt in advance, has said he wants a vote. I am now speaking from the Front Bench and not from the Woolsack where I never can express an opinion on points of order. Once an amendment is approved anyone who wishes is entitled to put it to a vote and I think we had better have one. I made my offer and the noble Lord, Lord Mishcon, wants a vote, so why do we not have one? I cannot stop him.
Lord Mishcon: I must rise to the bait.
Noble Lords: Order!
Lord Mishcon: I shall say only one thing. Possibly the Committee would now like to hear the noble Baroness to see what she would like to do with her amendment.
Baroness Lockwood: I am grateful to the noble and learned Lord the Lord Chancellor for the way that he
24
has received these amendments and for his assurance that the draftsman will consider the wording in Amendment No. 10. Nevertheless, what he said in relation to the second series of amendments referring to Section 25A referred only to 25A(3). As my noble friend Lord Mishcon suggested, there is more in Section 25A than merely stopping the periodic payments. I should not want to press an amendment to a Division simply as a public relations exercise; but if the law is to be respected, people must have confidence in the law. One of the problems that has been raised about the whole Bill is that there is no public confidence in it and what is expected of it. My amendments were intended to show a little more clearly the kind of criteria that would be considered. Therefore I should like to put it to the Committee that we should express an opinion.
The Lord Chancellor: I do not want to hold matters up, but if by any chance I did not make it plain, my objection in principle applies to Section 25A in its entirety. I mentioned particularly subsection (3), but the same objection—I will not reiterate it—applies throughout the orders under Section 25A(1). It is asking the court to apply a set of criteria which, at the stage at which it considers the matter in the new Section 25A, would be inappropriate because they already would have been taken into account for the purposes of Section 25.
Baroness Wootton of Abinger: As the debate proceeds, it becomes more and more clear that the variety of circumstances that might be relevant to this clause is absolutely endless. Many of us are impressed with the need in principle for some clause of this kind. Though I regret that my noble friend tried to particularise, I prefer the words of her amendment to the words in the Bill. Many of us may feel that we are voting for the principle of the amendment rather than the words in which she has chosen to express the situations to which it may apply.
4.6 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 99.

DIVISION NO. 1

CONTENTS

Amherst, E.

Cooper of Stockton Heath, L.

Ampthill, L.

David, B.

Ardwick, L.

Davies of Penrhys, L.

Attlee, E.

Dean of Beswick, L.

Aylestone, L.

Diamond, L.

Barrington, V.

Donaldson of Kingsbridge, L.

Beswick, L.

Donnet of Balgay, L.

Birk, B.

Ewart-Biggs, B.

Bishopston, L. [Teller.]

Foot, L.

Blyton, L.

Gaitskell, B.

Boston of Faversham, L.

Gardiner, L.

Briginshaw, L.

George-Brown, L.

Brimelow, L.

Gladwyn, L.

Brockway, L.

Glenamara, L.

Bruce of Donington, L.

Gormley, L.

Burton of Coventry, B.

Graham of Edmonton. L.

Carmichael of Kelvingrove, L.

Grimond, L.

Cledwyn of Penrhos, L.

Hale, L.

Collison, L.

Hampton, L.

25

Hanworth, V.

Nicol, B.

Harris of Greenwich, L.

Northfield, L.

Hatch of Lusby, L.

Oram, L.

Hayter, L.

Peart, L.

Hughes, L.

Porritt, L.

Hunt, L.

Rea, L.

Ilchester, E.

Richardson, L.

Jeger, B.

Roberthall, L.

Jenkins of Putney, L.

Sainsbury, L.

John-Mackie, L.

Seear, B.

Kearton, L.

Stallard, L.

Kilbracken, L.

Stamp, L.

Kilmarnock, L.

Stedman, B.

Leatherland, L.

Stewart of Alvechurch, B.

Llewelyn-Davies of Hastoe, B.

Stewart of Fulham, L.

Lloyd of Hampstead, L.

Strabolgi, L.

Lockwood, B. [Teller.]

Taylor of Blackburn, L.

Longford, E.

Taylor of Mansfield, L.

Lovell-Davis. L.

Underhill, L.

McCarthy, L.

Wallace of Coslany, L.

Mayhew, L.

Wedderburn of Charlton, L.

Milverton, L.

Wigoder, L.

Mishcon, L.

Wootton of Abinger, B.

NOT-CONTENTS

Adeane, L.

Long, V.

Airey of Abingdon, B.

Lovat, L.

Allerton, L.

Lucas of Chilworth, L.

Auckland, L.

Luke, L.

Avon, E.

Macleod of Borve, B.

Balfour of Inchrye, L.

Mansfield, E.

Bauer, L.

Mar, C.

Bellwin, L.

Margadale, L.

Beloff, L.

Marley, L.

Belstead, L.

Massereene and Ferrard, V.

Benson, L.

Maude of Stratford-upon- Avon, L.

Boyd-Carpenter, L.

Campbell of Croy, L.

Merrivale, L.

Cathcart, E.

Mersey, V.

Chitnis, L.

Molson, L.

Cockfield, L.

Morris, L.

Constantine of Stanmore, L.

Mottistone, L.

Cottesloe, L.

Mowbray and Stourton, L.

Craigavon, V.

Murton of Lindisfarne, L.

Cullen of Ashbourne, L.

Newall, L.

Daventry, V.

Norfolk, D.

Davidson, V.

Nugent of Guildford, L.

De Freyne, L.

Orkney, E.

Denham, L. [Teller.]

Pender, L.

Drumalbyn, L.

Peyton of Yeovil, L.

Duncan-Sandys, L.

Quinton, L.

Ebbisham, L.

Rankeillour, L.

Eccles, V.

Rawlinson of Ewell, L.

Effingham, E.

Renton, L.

Ellenborough, L.

Rodney, L.

Elliot of Harwood, B.

St. Davids, V.

Faithfull, B.

Saltoun, Ly.

Gainford, L.

Sandford, L.

Gardner of Parkes, B.

Sempill, Ly.

Glenkinglas, L.

Skelmersdale, L.

Gowrie, E.

Soames, L.

Gridley, L.

Spens, L.

Hailsham of Saint Marylebone, L.

Strathcarron, L.

Strathclyde, L.

Harvey of Prestbury, L.

Strathspey, L.

Harvington, L.

Suffield, L.

Hawke, L.

Swinton, E. [Teller.]

Henley, L.

Terrington, L.

Holderness, L.

Tranmire, L.

Home of the Hirsel, L.

Trumpington, B.

Hylton-Foster, B.

Vaux of Harrowden, L.

Ingrow, L.

Vickers, B.

Kilmany, L.

Vivian, L.

Kimberley, E.

Ward of Witley, V.

Kinloss, Ly.

Wise, L.

Lauderdale, E.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Skelmersdale: This seems an appropriate moment after 3.30 p.m. at which to resume the House to take the first of the Statements. I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

The NGA Dispute
4.15 p.m.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): My Lords, with the leave of the House, I will now repeat an Answer given to a Private Notice Question in another place about the National Graphical Association dispute. The Answer was as follows:
"Further negotiations between the Stockport Messenger Group and the National Graphical Association took place throughout last week under ACAS chairmanship. These lengthy negotiations ended without agreement in the early hours of Friday morning. I understand that the chairman of the group, Mr. Shah, put forward proposals for the re-employment of the six dismissed strikers which the NGA did not reject and which could have resolved that issue. However, the NGA refused to give up their demand for a closed shop at Bury and Warrington. On the central issue of the closed shop, the NGA continued to insist on its establishment, but Mr. Shah was not prepared to accept this against the wishes of his employees, and it was on this issue of the closed shop that the negotiations broke down.
"Later on Friday morning the contempt proceedings in the High Court in Manchester, which had been adjourned a week before at the request of both the Messenger Group and the NGA, were resumed. The NGA were fined a further £150,000 for the unlawful picketing which occurred between 22nd and 24th November in their continued defiance of the orders of the court, and £375,000 for the unlawful picketing at Warrington between 29th November and 1st December.
"The National Council of the NGA met on Saturday and decided to call a one-day strike of all their members on Wednesday, 14th December. I trust that all sides of the House will join me in condemning further recourse to indiscriminate and damaging industrial action. It can do nothing to resolve the NGA's dispute with the Stockport Messenger Group. All it will achieve is substantial damage to companies who have no connection with this dispute and which can only put at risk the jobs of many of their own members and other employees as well.
"For all these reasons, and not least what are likely to be the serious consequences for the NGA itself, I hope that they will no longer seek to pursue this dispute in defiance of the law."
My Lords, that concludes the Answer.
Lord Dean of Beswick: My Lords, may I first thank the Minister for repeating the Answer made in another place to the PNQ on this very important dispute. I do

27
not think that the Statement adds much to that which has already been reported in the press and the media over the weekend, following the breakdown of the negotiations last week. Of course, it is in an extremely delicate situation at present. Surely the Minister must be aware that there is still time, short though it is, to seek to avoid a national printing strike. Will he not also accept that one of the responsibilities of the Secretary of State is to foster good industrial relations where possible? May I therefore ask the Minister if he will ask the Secretary of State at this late point in time to call together all the sides involved in this dispute, either today or tomorrow, in an effort to avoid what could be a very damaging dispute for all concerned?
Lord Wigoder: My Lords, my noble friends in the SDP and my noble friends on the Liberal Benches are somewhat puzzled as to what the object is of this Private Notice Question and its inevitable Answer, because it adds absolutely nothing to the information already available to the public and it does absolutely nothing except to give an opportunity to Members of the other place and to Members of your Lordships' House to make provocative remarks that cannot do the situation any good at all.
In so far as we are asked to comment, I comment very briefly. First, the issue being very largely whether or not a closed shop should be imposed contrary to the wishes of the majority of the employees, our views on these Benches are perfectly clear: that would be totally improper. Secondly, we note what the Answer says on the fact that there is going to be a one-day strike on Wednesday. I do not think that the media ought to exaggerate the extent of the grief with which the public will view the possibility of their being deprived of their newspapers on Wednesday. Indeed, I think that many of us are deeply concerned that the disorganised rabble which represents the newspaper publishers at the moment has brought this to some extent on its own head.
Thirdly, we would take the view that this is at the moment a dispute between an employer and a trade union in which the Government are not directly involved but in which the courts are directly involved. It is of supreme importance to the rule of law that the supremacy of the courts should be upheld, and we on these Benches are determined to see that it is.
The Earl of Gowrie: My Lords, could I say to the noble Lord, Lord Dean of Beswick, who wanted the Secretary of State to call the various parties to this dispute together, that exhaustive attempts at conciliation have been made throughout this dispute, and particularly in the last week. It is now quite clear that what stands in the way of a negotiated settlement is not in fact the future of the six dismissed strikers but the NGA's rigid insistence on a closed shop. That is what this dispute has always been about; and I therefore cannot see, sadly, that there is much scope for further attempts at conciliation.
May I say to the noble Lord, Lord Wigoder, that the Private Notice Question, I understand, was put down by the Opposition spokesman, and therefore, of course, my right honourable friend had to answer it. I agree with the noble Lord that the law on this issue is
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quite clear—that, of course, the Government are not involved, but the courts are—and, on behalf of the Government, we very much hope that the NGA will see their position clearly and will call off the threatened industrial action which I think would deprive many of the public of their newspapers on Wednesday.

British Airways Privatisation
4.22 p.m.
Lord Lucas of Chilworth: My Lords, with permission, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Transport. The Statement is as follows:
"The Government's intention of moving British Airways into the private sector was announced by my right honourable friend the then Secretary of State for Trade in July 1979. Legislation to achieve this was passed in the Civil Aviation Act 1980.
"Our original intention was to go ahead with a sale soon after the passing of the Act, but the decline in the airline's profits in 1979–80 and the large losses in the two subsequent years made that impracticable.
"Over the last two years, however, decisiveness on the part of management and determined cooperation from the workforce have sharply improved British Airways' productivity; and the airline industry is now emerging from the world recession. British Airways made a net profit of £77 million in the financial year ended last March; and they are set to make significantly higher profits this year.
"British Airways have also begun to restore their balance sheet. Since March they have repaid well over f100 million of borrowings without any assistance from the Government. Their external finance limit fixed for 1984–85 means we expect British Airways to repay at least £160 million of borrowings next year.
"Following this transformation of British Airways' financial prospects, I have decided to aim for privatisation as soon as possible, hopefully in early 1985. To this end I propose to establish British Airways as a public limited company under Government ownership in accordance with the 1980 Act.
"I am accordingly arranging for the registration of a public limited company under the name of British Airways Plc, without at this stage giving it the right to trade: and I shall shortly make an order nominating it as the successor company to the British Airways Board under Section 3(2) of the 1980 Act. I shall place a copy of the memorandum and articles of association of the new company in the Library of the House. I also propose soon to make an order under Section 10(1) of the 1980 Act, appointing 1st April 1984 as the day on which the property, rights, liabilities and obligations of the British Airways Board in the United Kingdom are vested in British Airways Plc. All this needs to be done well in advance of vesting to allow time for the necessary administrative steps, such as arranging the transfer of overseas property and rights from the British Airways Board to British Airways Plc.

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"Shortly before vesting, British Airways Plc should be issued with a certificate to trade under Section 4 of the Companies Act 1980, so that it can take over the airline's business from 1st April. At that stage I shall provide British Airways Plc with the statutory minimum of £50,000 share capital. I shall be seeking a supplementary vote for this purpose in due course.
"From 1st April 1984 onwards, therefore, British Airways will be trading as a Companies Act company wholly owned by the Government. During this period we shall exercise the degree of financial control appropriate to our role as sole shareholder. I shall inform the House early next year of the regime that will govern relations between the Government and British Airways in the period between vesting and the offer for sale: but one element will be an assurance in similar terms to that given in 1980 to British Aerospace in similar circumstances, declaring that the Government continue to stand behind the company and will not allow it to default on its debts. This commitment will not of course extend to any debts falling due after the offer for sale.
"Final decisions on the timing of privatisation will depend on the airline's financial performance in the meantime, on the state of the stock market and on the general prospects for the airline industry.
"There has been considerable interest in the press lately, and in some parts of the airline industry, about whether a capital reconstruction of the airline will be necessary. I have reached no firm decision about this. It will depend in part on British Airways' financial performance over the coming year. My aim is that as far as possible the necessary improvement to the airline's balance sheet should come through its own efforts.
"Mr. Speaker, British Airways has remained for too long preparing for take-off. It is a great tribute to Lord King, the British Airways Board and the entire staff of the airline that I can today position the airline on the runway for take-off into the private sector."
My Lords, that concludes the Statement.
Lord Underhill: My Lords, the House will be grateful to the noble Lord the Minister for repeating this Statement made in the other place by the Secretary of State for Transport. I must make it clear on behalf of the Opposition that whatever may be the future structure of British Airways, we wish British Airways and its staff well in its position as one of the major airlines in the world. The Statement pays tribute to the chairman, to the board and staff for the improvements achieved. There must be the obvious question: why then interfere with it? Why not leave it in the hands of the present management and staff?
One thing is absolutely clear from the Statement. The Government are apprehensive about the problems that would be created by the flotation of British Airways at the same time as they hope—I repeat "hope"—to float British Telecom. But the Government do not appear to recognise the effect that these various flotations of public assets have on the essential need for investment in our manufacturing
30
industry. The decision cannot be on the grounds of competition, as British Airways holds 83 per cent. of the routes and other matters of the British aviation industry—unless, of course, the Government are proposing some changes in that respect.
The Statement points out that the Secretary of State has not yet made up his mind on capital reconstruction. In the balance-sheet up to the end of March this year the debt stands at £1,053 million. The Statement recalls that £100 million has been repaid since then and it is estimated that a further £160 million will be repaid in the current year. That will still leave debts of £740 million. I must make it clear on behalf of the Opposition that there will be considerable concern if a considerable part of that debt is written off to launch a privatised British Airways.
As well as seeking capital reconstruction, the chairman of British Airways is reported as desiring relief from the Government in relation to pension commitments. There is no reference whatever to that in the Statement. My recollection of the 1980 Act is that it does not say that 100 per cent. shall necessarily be sold. What is the intention of the Government when eventually they decide to have the flotation? I must also make it clear that the Labour Party is committed to there being a major, publicly-owned airline in this country. I would stress that this was one of the major recommendations of the Edwards Report into the airline industry in 1969, and I urge that the Labour Party's commitment in this respect should be made clear in any prospectus for sale. In view of this fact and of the general acceptance at the time of the recommendations contained in the Edwards Report, will the Government now consider having a full review of aviation policy in order to retain Britain's preeminence in this field?
Baroness Burton of Coventry: My Lords, it would seem from the Statement we have heard today that the earlier plan to sell a controlling 51 per cent. slice of British Airways has been replaced by a determination to sell the whole company in the spring of 1985. May I ask the Minister—I apologise for forgetting to thank him for making the Statement—whether it is true that the Government expect some £800 million to £900 million to be realised by this flotation? If that is so, can the Minister say whether it will be used to wipe out at least £800 million of British Airways' crippling bank debts? May I also ask the Minister whether the plan means that British Airways' balance sheet will be restructured without further cost to the taxpayer? In the past, British Airways would certainly have gone bankrupt but for the taxpayer standing behind them. I ask this question because in the Statement we have just heard the Minister said—and this is a point to which the noble Lord, Lord Underhill, also referred—that he has not yet reached a decision about whether a capital reconstruction of the airline will be necessary.
I should like to ask the Minister what effect this privatisation will have on other airlines. Is the Minister aware that some people have wondered why it was not possible to consider selling British Airways as the major but not necessarily the dominant British airline in the future? It seems to me that civil aviation in this country would have a much more prosperous future if British Airways, British Caledonian and other

31
scheduled British airlines were combined together in the effort. It would seem that this proposed action by the Government offers such an opportunity.
Furthermore, I wonder whether the Minister would agree that it is not possible just to privatise British Airways alone. There is a much wider aspect to be considered. For example, what are we going to do in Europe? How are our airlines going to be affected there? I should like to add my plea to that of the noble Lord, Lord Underhill: I think—and I believe that many people in the civil aviation industry think—that the Government should now have a wide-ranging review of civil aviation policy.
In conclusion, I should like to pay tribute, as did the noble Lord, Lord Underhill, to the whole of British Airways for the great efforts they have made to pull the airline round. It should not have been necessary; this should have been done long ago. It has resulted in a great deal of hard work and sadness, and a great deal of money has been spent upon putting British Airways on the right lines. I hope that now it will be successful and that the Minister will consider some of the points I have raised.
Lord Lucas of Chilworth: My Lords, I thank both the noble Lord, Lord Underhill, and the noble Baroness, Lady Burton of Coventry, for the way they have received this Statement. I am also indebted to both of them for the tribute they have paid to Lord King, the directors and the staff of British Airways, and for the good wishes for the future which they have extended to these people.
The noble Lord, Lord Underhill, asked a number of questions, some of which I shall try to answer. He asked specifically why we should interfere with British Airways. We believe, as do the board of British Airways, that the disciplines of the private sector will give more opportunities to the airline to improve its fortunes. We do not have, as the noble Lord, Lord Underhill, suggested, any apprehensions at all about privatisation. It makes good sense, with the privatisation of British Telecom next year, not to carry out a similar major privatisation scheme in the same year. It will also give to British Airways the opportunity to improve their performance even further. It is that improvement which we hope will be reflected in their balance sheet at the appropriate time. The prospectus to which the noble Lord referred will certainly be comprehensive.
Turning to competition, most of the competition British Airways faces is from overseas airlines. Undue competition would not necessarily, therefore, result from privatisation. The noble Lord, Lord Underhill, asked about routes, and in reply I have to say to him that these are not the concern of the Secretary of State for Transport, who has only appellate jurisdiction. Both the noble Lord, Lord Underhill, and the noble Baroness, Lady Burton of Coventry, asked how much of the equity the Government will sell. The Government have not yet come to a decision on this matter, but of course we are giving it a good deal of thought. Nevertheless, we would wish to retain as much flexibility as possible until nearer the date of flotation. The Government do not believe that at this stage an overall review of the airline industry is necessary.
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The noble Baroness, Lady Burton of Coventry, asked how much the Government anticipate they will realise by the sale of British Airways. It would be unwise for me to attempt to forecast until we see the balance sheet of British Airways at that time, and the prospectus, and until we have some knowledge of the current state of the airline industry and the general position regarding world trade.
Lord Harvey of Prestbury: My Lords, is my noble friend aware that at the end of the day we may finish up with a private monopoly instead of a Government monopoly? Is it not rough justice on companies like British Caledonian and British Midland, which have fought all the way along since the end of the war without one penny of public money and which have been successful? I do not agree with my noble friend that most of the competition is from overseas. Surely it would be of great help to give these companies, which are making much foreign currency for this country, a better break. British Airways have about 85 per cent. of the scheduled services, which were acquired only by the goodwill of the Government; they were handed over to British Airways. I would make a special plea that in the intervening period these other companies should be given full consideration.
Lord Lucas of Chilworth: My Lords, I cannot agree with my noble friend Lord Harvey of Prestbury that there is to be the transfer of a monopoly. Indeed, British Airways have no monopoly. British Airways are subject to market conditions, in particular to those overseas. As to making any change in the competitive situation, my noble friend will know that this is not within the purview of Government. It is the Civil Aviation Authority which controls routes and prices. The prospective privatisation of British Airways raises implications for competition and for the sound development of the British airline industry.
The Civil Aviation Act 1982 places these responsibilities on the Civil Aviation Authority. My right honourable friend therefore asked the chairman of the authority for advice. The chairman has responded that the authority will review those matters in consultation with the industry and, of course, with representatives of users. They will make any desirable changes within the framework of the Act in their Statement of Policies on Air Transport Licensing and other matters. That, of course, is to be welcomed. My noble friend will know that the CAA have a responsibility to make reviews of this nature from time to time, or as the Secretary of State may request.
Lord Beswick: My Lords, the Statement again pays a most generous tribute to the new direction of British Airways—but would it not be fairer and more in accordance with the facts if a tribute were paid also to those who had previous responsibility for British Airways? Is it not a fact that Mr. Roy Watts and his team, before they were displaced, made a 15 per cent. cut in operating costs, which is reflected in the accounts we are now discussing? Is it not a fact that in this last year, British Airways are £300 million better off as a result of the efforts which were made by Mr. Roy Watts and his team—efforts which were not very popular at the time they were made?

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Also, may I ask again about the possible capital reconstruction, which really is another term for the taxpayer taking over responsibility for the outstanding loans of the company? If we have a situation in the future where British Caledonian and British Midland are having to compete with an airline whose aircraft, if they have not been acquired for free, have been acquired at a greatly written down price, how can that be reconciled with any concept of fair competition?
Lord Lucas of Chilworth: My Lords, I am glad that the noble Lord, Lord Beswick, has reminded us that we should also pay some tribute and regard to the work done by the management and board of British Airways before the present regime. It would not be for me to ascribe responsibility for disappointing results in the late 1970s and early 1980s. It is sufficient to say that the airline is in a far more healthy state now than it was then.
So far as the restructuring is concerned, the Statement I have repeated sets out quite clearly that my right honourable friend has an open mind as to whether there is a necessity to restructure. There can be no question that a privatised British Airways will be allowed to operate with an unfair advantage in so competitive an area as the international or, indeed, the national airline industry.
Lord Boyd-Carpenter: My Lords, can my noble friend say whether, when the stock in British Airways is made available, the Government will take steps to ensure that a certain amount of stock is made available to the employees of British Airways, so as to give the new company the enormous advantage of substantial employee shareholding, with all the benefits that follow from that? Secondly, in respect of the tributes paid by my noble friend Lord King of Wartnaby and the noble Lord, Lord Beswick, to Mr. Watts—with which I wholly agree—is it not a fact that British Airways have, over the past year or two, recovered far more rapidly from the effects of the depression than have any other major airline in the world? Does not that reflect great credit on all those who have been responsible for that recovery?
Lord Lucas of Chilworth: My Lords I am greatly obliged to my noble friend Lord Boyd-Carpenter. If I may deal with his last point first, he is quite right in reminding your Lordships of the tremendous recovery British Airways have made in recent years. He is quite right in reminding us that that is due solely to the efforts of those "in the field", so to speak, right up to the board and the chairman—because that is where recovery really happens. It is quite right to say that they have put in a tremendous amount of effort, and many have indeed made great sacrifices. I am very glad to endorse my noble friend's comments in that respect.
My noble friend asked about shareholdings for British Airways employees. In any arrangements with regard to the sale of shares, employees will have an opportunity to buy or to obtain a stake in their company's performance. That is one of the salutary effects and one of the disciplines which moving the airline into the private sector will bring—I am quite sure, to the benefit of everybody.
While answering that question, perhaps I may
34
anticipate another question which might arise. In the sale of shares, while the Government have not yet decided the mechanism to be adopted, it will be one that prevents foreign interests from obtaining control of the company.
Lord Glenkinglas: My Lords, will my noble friend. if I heard him aright, explain to me how 83 per cent. of the market is not a monopoly? The noble Lord, Lord Underhill, talked about the Edwards Committee. It fell to my lot to have to bring about what Edwards recommended at that time. The main opposition came from British Airways and from the noble Lord, Lord Beswick, because British Airways had a total monopoly; and the committee was taking away that monopoly by giving it to British Caledonian.
British Caledonian have done extremely well and I do not understand what industry in the world is not in a monopoly position if it has 83 per cent. of the market. Certainly in the days when I was at the Board of Trade that was regarded as total monopoly.
Lord Lucas of Chilworth: My Lords, perhaps I may remind my noble friend Lord Glenkinglas of my comments about the CAA. It is because of the prospect of privatising British Airways in 1985 that there will be changes in the domestic airline field. It is for that reason that the CAA are to undertake a review of the implications for competition and for the development of the British airline industry. It is through the CAA, and not the Government through the offices of my right honourable friend, that any change is likely to come about.
Lord Glenkinglas: My Lords, does my noble friend not realise that the Government give the CAA instructions in these matters?
Lord Lucas of Chilworth: My Lords, I understand that the Government do not give the CAA instructions.
Lord Glenkinglas: I understand that they do, my Lords.
Lord Lucas of Chilworth: My Lords, if my noble friend will allow me to finish, then he will recall that it is the Civil Aviation Act 1982—a consolidation Act which picked up on a number of Acts of previous years—which gives the CAA their authority. My right honourable friend—and, therefore, the Government—has an appellant role only in those matters.
Lord Beswick: My Lords, may I put one fact right for the record? I did not oppose the changes which were made in the late 1950s. Professor Edwards actually paid tribute to the contribution I made in the discussions I had with him. Is the noble Lord further aware that, far from trying to impede any of those changes, I had helped to start British Midland Airways—which is still operating successfully?
Lord Lucas of Chilworth: My Lords, I do not consider that I can add anything to the remarks of the noble Lord, Lord Beswick, because he was merely putting the record straight.
Lord Boyd-Carpenter: My Lords, will my noble friend allow me to reinforce his reply to my noble friend Lord Glenkinglas, to the effect that the CAA act under the statute and not under the instructions of the Government? Does my noble friend recall, in support of that, that when, some years ago, the Government tried to order the CAA as to how they should deal with the Laker application, the Court of Appeal, headed by the noble and learned Lord, Lord Denning, told them that they had no power so to do and quashed their action?
Lord Lucas of Chilworth: My Lords, I am again obliged to my noble friend Lord Boyd-Carpenter. I recall that occasion and I am grateful to my noble friend for endorsing and underlining my remarks from his own knowledge.
Lord Morris: My Lords, may I ask my noble friend whether, when Her Majesty's Government consider the design of the powers to be granted to the new company by virtue of Clause 5 of the memorandum of association of the new company, they will ensure that those powers are not written so broadly that the company might diversify its endeavours too far from its purpose of providing airline and ancillary services to the public?
Lord Lucas of Chilworth: My Lords, I will certainly draw my noble friend's comments to the attention of my right honourable friend. I can assure my noble friend that both the articles of association and the memorandum will be placed in the Library, and he will then be able to see exactly what they say.

Matrimonial and Family Proceedings Bill [H.L.]
4.52 p.m.
Committee stage resumed on Clause 3.
[Amendment No. 11 not moved.]
Lord Hatch of Lusby Lord Hatch of Lusby moved Amendment No. 12:
Page 4, line 8, leave out ("is such") and insert ("is so grave and serious").
The noble Lord said: I have no intention of pressing this amendment. I am very grateful to the noble and learned Lord the Lord Chancellor for what he said a week ago at column 972 of the Official Report. He promised the Committee—
"I will, of course, having regard to what has been said, have the whole of this debate looked into to see whether I want to change my mind".
There is only one point I would make in regard to this amendment, and I hope that the noble and learned Lord will take it into account during his consideration of this clause. If paragraph (g) is left in the Bill as it stands at the present time, and if the noble and learned Lord does not see fit to change in some direction towards the amendment I have put down, then the words so eloquently spoken by my noble friend Lord Mishcon in discussing the previous amendment would become even more pertinent. The fact that we have not given sufficient guidelines to the registrars and judges I think is amply shown by what the noble Lord, Lord Mishcon, said, as to the difference between wives' and husbands' judgments.
Beyond that, the question of conduct is to my mind one of the main issues in this Bill, and the fact, as has been pointed out on many occasions both on Second Reading and in Committee, that quite contrary verdicts can be given not just on money, not just on maintenance, but also on the allocation of children, the care and control of children, seems to me to be a matter which requires firmer guidelines from this Parliament. This is one of the objects of my putting down this amendment. I now beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Craigavon Viscount Craigavon moved Amendment No. 13:
Page 4, line 16, at end insert ("; due account being taken of the contingent nature of any such benefit").
The noble Viscount said: The aim of this amendment is to draw attention to the area of pensions in divorce settlements, where there are widely differing and inconsistent practices. This amendment lays down no specific guidelines but merely seeks to remind the court of the contingent nature of pension expectations. May I say here that I have been a member for some time of the All-Party Divorce Law Reform Group and that I am also speaking as an accountant. In addition, I am speaking with the support of the Campaign for Justice in Divorce, which broadly welcomes the considerable improvements to divorce law in this Bill.
This amendment is concerned with the treatment of pensions mentioned in the new Clause 25(2)(h). This is not a plea of an elitist minority. Occupational pension schemes have been growing and cover many ordinary people (if I may so call them) such as civil servants, teachers, members of the Armed Forces, and, if I may include them under the heading "ordinary", Members of another place. The present uncertain and inconsistent treatment of pensions may be more closely examined in future if the courts are reminded, as this amendment seeks to do, of their contingent nature.
The concept of contingency is meant to emphasise that future pension entitlement, which necessarily has to be quantified, is not equivalent to cash in hand to be available for distribution. It also emphasises that contingent events such as changing jobs may supervene to alter existing pension entitlements and that a clear distinction should be made between retirement pensions and pensions following death. Because of the frequency of remarriage, in many cases a woman who in a divorce settlement may have received the benefit for loss of pension expectations is then covered by her second husband's pension.
I said that a pension has to be quantified financially in order to be put in the balance. I understand that it is that process which is a particularly inexact science, or rather art. There is uncertainty as to what the practice of a particular court or registrar may be.
One example of an unsatisfactory broad brush approach can be the trading off of the loss of a pension expectation with the giving of the other half of the matrimonial home to the custodial parent. That is tantamount to treating pension rights as cash in hand, when their contingent nature should be borne in mind. Adequate protection could be given more frequently, as is sometimes the case, by a wider use of insurance

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premiums providing cover for an agreed sum against an early death. Given the frequency of remarriage, that would seem to be a much fairer system to encourage where possible.
One approach to the pension problem is the recommendation in the Law Commission Report, in paragraph 46(7). I quote:
"Fresh consideration should be given to empowering the court to make orders reallocating the rights of former spouses under an occupational pension scheme".
That would certainly solve some pension problems but possibly create others.
It is also known that the Government are undertaking a radical look at occupational pensions generally, and even if those exercises come to fruition, which may take some years yet, I hope the noble and learned Lord will not for that reason reject this amendment. I believe that the addition of the concept of contingency now to this paragraph would be a useful bridging improvement for the present. I beg to move.
Baroness Gardner of Parkes: I am somewhat concerned by this amendment. Although I think it sounds splendid that the contingent nature should be taken into account, what concerns me is the constant reference by the noble Viscount, Lord Craigavon, to the number of remarriages that are involved. The facts show that far fewer women remarry than do men. I think this means that women may lose more by the suggestion that the noble Viscount puts forward. I should like an assurance from the noble and learned Lord the Lord Chancellor on this point. The question of pensions is vitally important in a divorcesettlement. I also believe that the present inconsistencies in pensions are quite extraordinary. My husband and I are both National Health Service practitioners, and obliged to pay National Health Service rates for our pensions. If I die he will not get a threepence. However, if he dies, I shall get a full pension.
Lord Elwyn-Jones: Quite right.
Baroness Gardner of Parkes: I do not think it is "quite right". I am trying to ensure in some way that if I drop dead before I reach the appropriate age he will not be left out. I hope we do not reach the point where we argue over these matters in a divorce, as I have been blessed in my life and marriage. But I draw the attention of the Committee to the number of letters I have received from women's groups—I speak as the United Kingdom representative on the United Nations Status of Women Commission—which are concerned that the pension right may not be adequately taken into account. I should like an assurance that if the amendment is accepted it will not in any way weaken the clause as it at present stands.
Lord Hatch of Lusby: I support the noble Baroness, Lady Gardner of Parkes. Some of us discussed whether an amendment should be tabled on this clause regarding pensions. I know that pensions are mentioned here, but in parentheses, as though it was just a side issue. Surely the reality of the pension issue in a divorce settlement is that very frequently the wife has contributed—often by going out to work or by her housework—to the pension itself. Frequently she is not
38
enabled to benefit at all when her ex-husband becomes of pensionable age. It seems to me that, as pensions are mentioned in this rather off-hand way, we need to strengthen the clause. We need to make a special issue of the divorced wife's absolute right to participate in the pension of her former husband.
The Lord Chancellor: I wish that the noble Viscount on the Cross-Benches had told me in advance of the point which was worrying him because, whatever else the law does, the question of pensions, and particularly occupational pensions, looms very large in the law of ancillary provision to divorce. But it does not arise in this particular paragraph (h) in the new Section 25, and it does not arise on this amendment.
As the noble Viscount says, I am carrying out a rather large operation about that, but if he would like me to write to him or give further information I will gladly do so. On this amendment I simply cannot enlarge very much on what I am going to say, except to inform my noble friend Lady Gardner of Parkes that I do not think that the wife's interests are in any way adversely affected. Quite obviously the powers which are given to the courts on a dissolution cover not only weekly payments—perhaps the most frequent form which they take—but also distribution of capital assets. Obviously if one is to distribute capital assets which exist at the time of dissolution the fact that when one party dies before another there may be a pension entitlement is one of those matters which, under new Section 25, must be taken into account. But that is all it comes to.
The amendment would make no difference at all because the new section as it stands in paragraph (h) already contains the words:
"the value to each of the parties . . . . of any benefit (for example, a pension) which, by reason of the dissolution …. that party will lose the chance of acquiring".
The words "the value" and the reference to the party concerned and the chance of acquiring it contain the full effect of the word "contingent" which the noble Viscount on the Cross-Benches wishes to add.
I must say that, in principle, it is wrong to add words to a statute which have no effect at all. To do so one only gives rise to doubt and uncertainty about the meaning. The drafting has already taken the point fully into account and it is already there.
Lord Mishcon: I am sure the Committee is grateful to the noble and learned Lord for his brief summary of the present position, but it is a position that was highlighted in the Law Commission's report. May I refer the Committee, only because it is an important matter, to page 12 of the Law Commission Report No. 112. In paragraph 31 it refers to the technical matter on which the commission believes action should be taken when an appropriate opportunity presents itself. It then points out, of course, that the present position under the law is that under most pension schemes it is the widow at the time of death, obviously, who is entitled to the pension and the previous wife has no entitlement under most pension schemes. In paragraph 33 the report recommends, somewhat ominously for some of us, that the commission expects there to be an evolution away from the concept of lifelong support for divorced wives.

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The commission then goes on to say that the court may well want to take unto itself the power granted by legislation, in spite of what the pension scheme says—namely, that the pension shall go to the widow for the time being, as it were, of the deceased person—to make provision that the court can in fact direct that, in spite of those pension rules, the pension shall, in part or in whole, be charged for the benefit of the previous wife.
The commission then went on to hope that legislation along those lines might soon be on the way and that such legislation should not hold up the present matrimonial reforms that we are now considering. I wonder whether the noble and learned Lord, in order to quieten some of us and possibly the noble Viscount who moved the amendment, could tell us whether it is likely that such necessary legislation will soon be before us.
The Lord Chancellor: I do not know whether I can quieten the Committee, and perhaps I ought not try to do it. At any rate, I can tell the noble Lord that work is going on to produce a consultation paper on the question of the allocation of pension rights on divorce. It should be ready for publication in the spring. I underline what the noble Lord has just said. The last sentence of paragraph 33 is that we do not think it necessary that the reforms which we propose in this Bill should be delayed in the meantime.
Viscount Craigavon: I appreciate what the noble and learned Lords says. In this amendment I was merely seeking to provide a small reminder to anyone who was in doubt that pensions in this context are often by their nature contingent. I accept that it might be otiose to put this in.
The issue raised by the noble Lord, Lord Mishcon, went far beyond what I was trying to attempt in my amendment, although his words highlighted the fact that there is very much a problem in this area. In view of what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.9 p.m.
Viscount Craigavon Viscount Craigavon moved Amendment No. 14:
Page 4, line 16, at end insert—
("( ) the reasonable financial needs in respect of acquiring and maintaining a new home which either of the parties has or will have as a consequence of any order the court has made or intends to make for the disposal or occupation of the matrimonial home.").
The noble Viscount said: The intention in this amendment is to ensure a fair balance in the matter of essential accommodation for what will normally be the non-custodial parent. May I emphasise the second word in the amendment—"reasonable"? I believe that the Campaign for Justice in Divorce reflects the concern of some people that there is a danger of the position of the divorced husband being ignored in some areas, and with the present number of remarriages that would also be a penalty for many second wives. This amendment is an attempt to ensure that accommodation for the divorced husband, and often a second wife, is not simply the last piece of the jigsaw to be fitted in.
This Bill drops the previously impossible requirement that the parties should be placed in their former financial position. It is now more reasonable to expect a rough parity between the parties in standards of accommodation. The former husband should be entitled, when his children visit him, not to be living in accommodation substantially worse than the home they have come from. The aim is that the financial needs for the acquiring and maintaining of a new home—such as reasonable mortgage payments —should be something to which the court should have particular regard.
This amendment is an attempt to enact the practice in the case of Stockford v. Stockford, reported in The Times Law Report on 5th November 1981, which has been confirmed in many cases although not followed in others. In Stockford v. Stockford Lord Justice Ormrod gave an unequivocal ruling that, provided they are reasonable in the circumstances, the husband's costs in rehousing himself and any second family (including the costs of any mortgage he may have) should be regarded as part of his needs under Section 25(1)(b) of the Matrimonial Causes Act 1973. It was also ruled that these costs, along with others, should be deducted from the husband's gross income to arrive at a net income before the question of any maintenance order is decided. It is part of that judgment which this amendment seeks to enact. I beg to move.
The Lord Chancellor: I can really only give the same sort of answer to the noble Viscount on the Cross-Benches as I gave him on the last amendment. He is perfectly right in saying that the need to rehouse himself is one of a divorced husband's financial needs, and if he has remarried it is one of his responsibilities. That is therefore mentioned in the new Section 25(2) (b), set out in the Bill. It is in fact part of the existing law. The proposed new paragraph simply points to one of the many financial needs to which the court must, and does, have regard every day. Parliament does not, and should not, enact provisions with no effect. If it was necessary specifically to mention the financial needs of the parties in respect of requiring a home, it would appear that a home was not one of the "financial needs" mentioned in paragraph (b), and that would be disastrous in its effect. I hope, therefore, that the noble Viscount will be content with my assurance that what he wants is already there.
Lord Elwyn-Jones: In reply to the noble Viscount, the noble and learned Lord the Lord Chancellor has drawn attention to the provisions of subsection (2)(b). Wide discretion is given to the judge to deal with,
"the financial needs, obligations and responsibilities".
He has clearly said that the provision of a house, either for the divorced husband or for his new family, if he marries again, would be a relevant financial need. If I may say so, I think that it is important that we should maintain the discretion of the judges in this field. I note that what is proposed by the noble Viscount does not limit the discretion but adds something positive to it, but I venture to think that the substantial point of the amendment is already dealt with in the terms of the Bill.
Viscount Craigavon: I am grateful to the noble and learned Lord the Lord Chancellor for what he says. I was trying to point out that there were different interpretations under the existing law, and I tried to highlight them by citing the case of Stockford v. Stockford. I accept that houses are included under the existing wording of the present Act, but I was trying to draw attention to the level of accommodation which might reasonably be expected by the non-custodial party or the person who does not end up with the matrimonial home. However, given what the noble and learned Lord has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 15:
Page 4, line 28, leave out paragraph (d) and insert—
("( ) the educational needs of the child, including nursery education, further education and training;").
The noble Baroness said: I beg leave to move Amendment No. 15 and also to speak to Amendment No. 33.
Amendment No. 33. Page 9, line 22, leave out paragraph (e) and insert—
("( ) the educational needs of the child, including nursery education, further education and training").
I think Amendment No. 15 is not contentious at all. Its purpose is simply to spell out in a little more detail the needs of a child at every stage of its childhood or youth. I think that the present wording in this part of the clause could be made more specific. Sometimes the child's education is thought of very much in terms of the time between the ages of five and 15, as required by law, but it could be of benefit to the courts if education in its broadest terms was made clear. It is important to bring into the focus of attention early education and nursery schooling. The full benefit that a child derives from those early years should be known and accepted. It would also assist the custodial parent—usually the mother—in her role of bringing up her child alone. At the other end of the scale it seems right to specify the desirability for the child to undergo further education and training. In these times of high unemployment among young people it becomes even more critical clearly to lay down the desirability of education being prolonged.
The extra guidance to the courts which this amendment conveys is justified because of the fact that, even at the best of times and when compatibly married to each other, parents argue a great deal about the way in which their children are to be educated. Surely disagreement is even more likely when parents are separated or divorced and bitter. Where parents have joint custody of the children, it could only be in the interests of the children for the Bill to specify the required stages of education as a guide to the courts. This would protect the child more closely in every way. I beg to move.
Lord Rawlinson of Ewell: I repeat what I said on the first amendment, despite the buffeting that I received at the hands of the noble Lord, Lord Mishcon, and the fact that the ground was cut from under my feet by the draftsman. I still think that it is much better to have in the Bill the kind of words that are used in paragraph (d).
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Let me put myself in the position of the registrar, or whoever is to decide the matter. The wording of the subsection is:
"the court shall … have regard to …

(a) the financial needs of the child;

(b) the income, earning capacity … of the child;

(c) any physical or mental disability of the child;

(d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained".

That is a sensible way of setting the provision out. It may be that I shall now be told that the draftsman does not think it is; but it seems to me to be the kind of guidance that is good to give to a registrar. Reasonable people can deal with it. I think that it is much better to use words like that, although I well appreciate what the noble Baroness has in mind. I think that what the amendment proposes would be covered by any person who was given the judicial task of interpreting paragraph (d). Again with great humility, I say to the noble Baroness that I believe that the words in the Bill are better than even those she suggests.
The Lord Chancellor: It is of course a matter of everyday practice in the courts that for whatever purpose the welfare of a child includes his educational needs. The proposed new Section 25(1) gives the matter priority, and in dealing with the child subsection (3)(d).—as it will be if it passes into law—refers to,
"the manner in which he was being and in which the parties to the marriage expected him to be educated or trained".
That brings education and training specifically into focus. Paragraph (d) in the revised Section 25 is brought in from the principal Act, because Clause 3 of the Bill before us substitutes a new Section 25 for the old Section 25 of the principal Act. The words are those of the principal Act, and they have worked perfectly well certainly since 1973, which is the date of the principal Act, and I think since before that. Therefore I believe that the amendment is not an improvement, broadly for the reasons that my noble and learned friend has just stated.
I think, too, that there are other disadvantages which the noble Baroness has not quite realised. The first disadvantage which must be realised is as follows. The fact that two parties are divorced does not deprive them of either the right to educate their child or the obligation to see that it gets the best possible education. The effect of the amendment, if it were passed, would be to override that underlying obligation which remains on the divorced parents even though they be divorced. In that respect the amendment would substitute—whether or not by deliberate intent I do not know, but certainly by inevitable consequence—the view of the court for that of the parents, who primarily have both the right and the responsibility to look after their own child.
As the noble Baroness has said, the parents may sometimes differ, and when they do it is for the courts to say what is best for the welfare of the child, under the new Section 25(1), putting the welfare of the child first, and that will of course include its educational needs. It can also be the case that, whether through design, inadvertence or neglect, the parents do not pay sufficient attention to the educational needs of the child. Then again under subsection (1) it is for the court to put the education or welfare of the child first.

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But if the parents are doing their proper job, especially if they are behaving to one another in a civilised manner, they are not deprived of their child; it continues to remain their child.
In addition, as an ex-education Minister, I think that it is a mistake to highlight nursery education, further education and training, because all of those are in the Act of 1944. To highlight those three types of education is to override what are the basic educational stages, which are primary, secondary, and tertiary education, as they are generally understood. Nursery education is certainly included in the Act of 1944, and so is further education and training. To highlight them in this particular context can only do harm.
There is a further reason which leads me not to welcome the amendment very much. It could actually do harm to the child, and by way of example I should like to put a case to the Committee. Let us suppose that there is a child who has been educated privately, at a fee-paying school, and that the parents expected the child to he so educated. That aspect comes straight within the unamended paragraph (d). As the law stands, and therefore as the Bill stands, it is unlikely that the child would be removed from the fee-paying school if there was sufficient money to pay the fees. But let us suppose that the father turns nasty and is unwilling to continue to pay the school fees of the child of his first marriage. In the light of the amendment, if it were passed, he might be able to satisfy the court that the child's welfare in respect of its educational needs would be adequately safeguarded if the child were to be educated at the public expense. That would not be in the general interests of the child.
Therefore on the grounds given broadly by my noble and learned friend—which I have not thought it necessary to do more than endorse—and on the grounds that the drafting is I think misleading and undesirable, and that the amendment could possibly damage the child and not advantage it, I would ask the noble Baroness not to press it.
Baroness Lockwood: I follow the logic of the noble and learned Lord the Lord Chancellor in this matter, and quite clearly the amendment is not drafted in the best possible way. I am quite sure that no one would in any way want to detract from the importance of primary, secondary, and tertiary education. But looking at the amendment, I think that its point is to include those aspects of education which, quite frankly, both state and individual parents tend to some extent to neglect; in particular, nursery education.
I wonder whether the noble and learned Lord the Lord Chancellor might be prepared to look a little more carefully at the principle behind the amendment, because it is intended to assist the two parties where there is joint custody of the child. It is intended to be of assistance where there is an attempt to conciliate. It is merely drawing attention to the different aspects of education that the two parties need to take account of in attempting to meet the overriding needs of the child.
5.28 p.m.
The Lord Chancellor: I have had to consider this matter in another connection in court, and with great
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respect to the noble Baroness, I must say that the truth is that this Bill is not a good place to describe what one means by education. The educational needs of the child are perfectly well spelt out in the Education Act 1944 and subsequent Acts. One does not want a separate and different definition in the present Bill. I think that the courts and indeed Parliament are perfectly familiar with the advantages of nursery education, and that Parliament is slightly conscience-stricken that more has not been done to implement the provisions of the 1944 Act.
However, in this case we are simply considering the question as to what the court ought to take into account when it distributes the capital assets of the marriage (if they can be described in that way) and makes financial provision for the future of the parties to the marriage and the children. Therefore I rather add to what I have said, though I respect what the noble Baroness feels about nursery education.
Lord Elwyn-Jones: I wonder whether the noble and learned Lord would be prepared to consider perhaps an amendment to the present paragraph (d). What my noble friend Lady Ewart-Biggs has emphasised is the need for perhaps particularity, especially in respect of nursery education and further education. In a sense it is true that if that became the law, the Act of Parliament in which it was contained would expect of and impose upon the parents standards of a kind which I should have thought it would be quite reasonable to impose in the circumstances.
With regard to the poblems of nevertheless imposing upon the parties something that would be unachievable, the sort of dilemma mentioned by the noble and learned Lord, of a reluctant divorced father in a new scene being unwilling to allow the child of his first marriage to stay on at public school, already arises. Nothing that the noble and learned Lord has said will alter that no doubt painful fact to those concerned. It is really a question of whether what he has in mind and what we have in mind may not be strengthened by specifying more clearly what is proposed by my noble friend. The welfare aspect of the duty owed towards the child is dealt with in Section 25(1); but perhaps the noble and learned Lord will consider whether some elaboration of the kind contained in my noble friend's amendment might not be helpful.
The Lord Chancellor: I would not in the least claim to be infallible on these things, and I shall, of course, reflect upon the point that the noble and learned Lord has made. I insist, however, that education is part of welfare and that the factors in subsection (2) of the clause relate back to subsection (1). Education is a part—a most important part—of the welfare of a child. Of course, you get the father who turns nasty as it is. In that case, under the Bill as drafted, the court has to decide whether it is reasonable for the child to continue where he is, putting the welfare of the child first which means, in this context, putting his educational needs first.
The point I made is that if the amendment is accepted, the court, regarding the new paragraph as not entirely subordinate to welfare, could very well say that it was satisfied that educational needs would be

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adequately met even if it disregarded the way the child expected to be brought up before the marriage broke up. Under the existing paragraph (d) that is not so.
I do not think that it is desirable to highlight what is not the first consideration of education at the expense of what is. One would have to put a complete definition of educational needs, including special education, into the Bill if one was going along those lines. But such a definition already exists. It exists under the 1944 Act with which the courts are adequately familiar or ought to be, and I think that they are. I adhere therefore to my opinion, although, if appealed to, I shall always yield to the charm and persuasion of the noble Lord and reflect upon what he said but without much hope of changing my mind.
Lord Tordoff: I wonder whether, taking the Lord Chancellor's point and not wishing to pursue the purity of the amendment to the ultimate, there is not a sense in which subsection (3)(d) might be seen to be restrictive in those cases where educational need has changed, particularly in relation to nursery schools. If it had not been the expectation of the parents that the child should go to nursery school beforehand, it may be that the need of the child, by virtue of the divorce, to go to nursery school is increased when living in what is essentially a one-parent family. Is it not possible that the court might regard subsection (3)(d) as being restrictive in that case?
Lord Donaldson of Kingsbridge: I wish to support the point of view expressed by the noble Lord, Lord Tordoff. The one thing that I should be sorry to lose from the amendment, if it is not accepted, is the nursery school side, which the noble and learned Lord said, in a way that I could not understand, would harm the child. I did not understand that. It is not important. What seems to me important is that it is not general practice throughout the country to give pre-five year-old education to children. An awful lot of families do not do so. It is not compulsory. It is in a different category to compulsory education and what follows it.
The Lord Chancellor: I cannot think why the noble Lord, Lord Donaldson, should have thought that I said that nursery education could do harm to the child. I was not saying that at all. If he reads Hansard tomorrow, he will find that his fears are absolutely groundless. I am sure that it could not be held by the courts to be restrictive. The fact of the divorce may alter the educational needs of the child. That is recognised fully by the courts as it stands. I am only saying to the noble Lord, Lord Tordoff, and to others who have spoken, that this is an old section that has worked well for at least 10 years, and I think longer, but certainly for the last 10 years. It is a pity to mess about with it because, on the whole, the present section covers the position and the alteration is not necessarily for the better.
Baroness Ewart-Biggs: I should like to thank the noble and learned Lord the Lord Chancellor for his explanation but I am still not totally convinced about the section having worked perfectly well up to now. I thought that one of the points of the Bill was to deal with the increased number of children of divorced
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parents who therefore need greater safeguards. I do not see why one cannot write into the Bill this particular need of a child which, as the noble Lord, Lord Tordoff, and I have said, becomes very much more important in the case of a single parent family both for the benefit of the child and the single parent. I am therefore not totally convinced that it would do any harm to find some form of putting this into the Bill. I understand what the noble and learned Lord the Lord Chancellor says about the drafting being unacceptable. I only hope that he can perhaps give the matter a little more thought and produce some alternative idea. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (The Earl of Listowel): Before I call the next amendment, I should inform the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 17 and 18.
5.38 p.m.
Lord Hatch of Lusby Lord Hatch of Lusby moved Amendment No. 16:
Page 5, leave out lines 6 to 25.
The noble Lord said: The purport of the amendment is to remove subsections (1) and (2) from Section 25A. I am sure that the noble and learned Lord the Lord Chancellor will correct me if I am wrong but as I understand it, on legal advice, these two subsections are unnecessary under the present Acts. The courts can, under the present Acts, make maintenance orders for a fixed period and then permit the parties to return to court if they consider that a further order is needed. There is one other issue that is contained in both these subsections that I think is highly suspect. I should like the Committee to examine it carefully before endorsing it. In subsection (1), the last phrase of the second sentence states that,
"the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable".
Again, in subsection (2), the second part points out that,
"it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party".
I suggest to the Committee that we are leaving far too much latitude to the courts. I return to a point, made all the way through this Committee stage, that there are so many courts that give contrary verdicts. We should be trying in this Bill to tighten up and to make clearer and more specific the guidelines that we are giving to the courts. I do not believe that these unalterable fixed orders fit in with the tradition of this country; nor do they assist in the always tragic business of settling divorce procedure.
Therefore, for these reasons, I suggest that under the present law both these two new subsections are unnecessary. The only new power which the courts need is contained in subsection (3), dealing with the clean-break provision. It is dangerous to allow too much latitude and too much ambiguity to the courts in fixing maintenance orders—and, again, I return to the question of the allocation of control and care of the

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children; there should be greater consistency in the courts' verdicts. It is our responsibility to try to increase this consistency and to remove the many contrary verdicts which are given on all sorts of grounds, particularly on grounds of prejudice against fault, or, as we say in this Bill, on grounds of conduct. The courts should also be able to speculate what will be the position of the parties in three years' time. The Bill seems to me to leave far too wide a margin of both difference and error on the part of the courts. Therefore, I beg to move that these two subsections be removed from the new Section 25A.
The Lord Chancellor: I am a little puzzled by the speech to which we have just listened. The first point alleged was that the first two subsections of the new Section 25A were unnecessary because they corresponded with the existing law. The second point was that we ought to tie the courts down more completely by omitting them. I find a complete lack of cohesion between those two parts of the noble Lord's argument.
In point of fact, there is more to the first part of his argument than to the second. It is, of course, true that, under Section 28 of the principal Act—the existing law—it is possible to make orders for a limited term. To that extent, the noble Lord could, from a strictly legalistic point of view, have some sort of a case that the omission of these subsections on the grounds that they are unnecessary is arguable. The trouble is that the point was precisely argued out in the Law Commission's report. It is to be found in paragraphs 26 and 27 of the report. The Law Commission came to the opposite conclusion to that of the noble Lord, precisely on the ground that it was necessary to give more definite guidance to the courts as to what to do, which was the second part of the noble Lord's argument.
I should like to refer for a moment to paragraphs 26 and 27, which state:
"The existing law requires the court to consider the income and earning capacity of both husband and wife, and (as reported cases indicate) the courts do take account of a wife's earning potential. There was, however, a widespread feeling amongst those who commented on the Discussion Paper that greater weight should be given to the importance of each party doing everything possible to become self-sufficient so far as this is consistent with the interests of the children: and we believe that the statutory provisions should contain a positive assertion of this principle".
That is exactly what the Bill does.
Then, in paragraph 27 the report makes the point, which the noble Lord has made and which I have conceded, that:
"The court has, under the existing law, power to make orders for a limited term, and this power is sometimes exercised when it is felt that a spouse (usually the wife) needs some time to readjust to her new situation but could not or should not expect to rely on continuing support from her husband. We think that it would be desirable to require the court specifically to consider whether an order for a limited term would not be appropriate in all the circumstances of the case, given the increased weight which we believe should be attached to the desirability of the parties becoming self-sufficient."
Of course, this report was based upon very wide consultations, and a consultation paper—Law Commission No. 103—was issued. The majority of the commentators (as appears from the paragraphs that I have read out), including those professionally
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concerned in the matter, felt much bitterness and unfairness was caused by the reluctance of the courts to encourage the parties so far as practicable to sever their mutual financial obligations, if not at the time of divorce, at least at some future date.
Then, of course, the report goes on to say what I have now said five or six times: that, unfortunately, this applies only to a relatively small number of cases numerically because, alas!, most cases of divorce do not, as the bishops seemed to think the other day, take place in the first three years of marriage; they take place after a long period of time, after a wife has lost some or all of her earning capacity and after a number of children have come into being to be looked after. Very often one finds that the wife has also suffered in health.
I did not understand the reference to conduct in the noble Lord's argument. For this purpose conduct does not enter into it. It is a factor which is taken into account in the old Section 25 and in the new Section 25 in its amended form. But, for the reasons I have indicated I do not think a case has been made out for this amendment.
Lord Hatch of Lusby: I thank the noble and learned Lord for his explanation. I quite take his original point about the lack of cohesion between the two sides of my argument. If this is so, I see no reason why we should reinforce the present law of determining a limited period of maintenance, and I would prefer to see it omitted. But if, after carefully reading the words of the noble and learned Lord, it seems necessary, we shall have an opportunity on Report to table an amendment which would at least lessen the effect of the limited period of maintenance.
On the second question regarding the noble and learned Lord's very compassionate words about the dangers of concentrating too much on self-sufficiency, I agree with him entirely. Of course. during both the Second Reading debate and the Committee stage of this Bill instance after instance has shown that the majority of divorces take place, not within the first three years of marriage and not between young people, but that the majority of divorced wives are those who have worked for at least half a lifetime in the home. I hope that at the Report stage we shall be able to stiffen the protection for such wives. I am delighted to know that the noble and learned Lord regards this as an issue which the Committee should take very seriously when considering the future of the divorced wife. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.50 p.m.
Baroness Lockwood Baroness Lockwood had given notice of her intention to move Amendments Nos. 17, 18, and 19:
[Printed earlier: col. 12.]
The noble Baroness said: I spoke to Amendments Nos. 17, 18 and 19 when I moved Amendment No. 10. Indeed, the principle on which we voted in relation to Amendment No. 10 applies very much in relation to these three amendments now before us. I would only ask that the noble and learned Lord the Lord Chancellor will take account of the substantial body of opinion in the Committee on this matter, and perhaps

49
reconsider his opinion when it comes to Report stage. At that point I would reserve the right to come back with further amendments if I felt it necessary; but at this stage in the proceedings I shall not move these amendments.
[Amendments Nos. 17 to 19 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 20:
Page 5, line 37, at end insert—
("( ) Where a court has made a direction under subsection (3) above, the obligation to maintain imposed by section 17 of the Supplementary Benefits Act 1976 shall cease.".").
The noble Lord said: There is a case of Hulley v. Thompson reported in 1981 which is responsible for this amendment. We have been considering the possibility of the court deciding to make a final order beyond which there will he no liability to maintain. We have considered the desirability of parties coming to their own accommodation in order to reach that position. Obviously the underlying principle is that one is then able to say—usually it would be to a husband but it could be conceivably to a wife—"The court has decided, having reviewed the whole situation and having seen" if necessary, "your agreement to that effect, and your wish to have that put into a consent order, that there should be no more responsibility upon the other party to the marriage, which is now dissolved, to maintain the other party".
If the wife, or it could be the husband, happens to fall on bad times and applies for supplementary benefit, then under the existing law as decided in the case I mentioned the duty to maintain can be enforced by the Department of Health and Social Security upon the other previous spouse. Therefore, in spite of the fact that there has been an agreement, "There is no need to maintain more if you make this payment, or you do all these things", and the parties have possibly in the alternative agreed that that should be so and the spouse has complied with the obligations, it would be impossible for any lawyer to say to the spouse who thought that the liability to maintain was over for the rest of his, or her, life that that is so. There could always be the possibility, in view of this 1981 case, of the DHSS coming back at a later time and saying, "You may have agreed that, but there is this section in the Act and we can therefore enforce your liability to maintain". Either there is to be a cesser of maintenance or there is not, and it seems therefore that it is wrong that the law should stand as it is, and this amendment would put it right. I beg to move.
The Lord Chancellor: I was not familiar with the case of Hulley v. Thompson. Therefore, what I say is subject to my looking at it and seeing whether there might be some point which I have missed. I am advised as of now, and without taking Hulley v. Thompson into account, that the amendment will be of no effect save perhaps where the direction is made between decree nisi and decree absolute, because the direction can only be given on or after the grant of a decree of nullity or of divorce. Therefore, it will occur when the marriage has been dissolved, and hence when the parties are no longer husband and wife, and so the obligation under Section 17of the 1976 Act would have died with the marriage.
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However, there is another point which ought to be considered by the noble Lord who proposed the amendment. Section 17 of the 1976 Act refers not only to the obligations of the spouses, or ex-spouses, inter se; it also deals with the obligations to the children. If the amendment were accepted in its present form, an unintended effect would be that the obligation to maintain the children of the marriage would also disappear with an order under the amendment, so that perhaps we both have something to think about, and perhaps we can both think about it.
Lord Mishcon: I am grateful to the noble and learned Lord. The last thing in the world I would want to do would be to cause a liability to maintain children to cease in those circumstances. I am grateful to the noble and learned Lord. There is this case, and it appears to apply even where there is an agreement between the parties to cease maintenance, and even where an order of the court has been made at the request of the parties. If the noble and learned Lord is going to look at that case, I am going to look at the mess that my amendment may be in if it in fact includes children. Perhaps between now and Report stage some accommodation can be reached either that I have made a good point or a bad point. If it is a good one then an amendment can be agreed at Report stage; if it is a bad one then I shall not come back.
Amendment, by leave, withdrawn.
5.57 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 21:
Page 5, line 37, at end insert—
"Monitoring.
"25B. The Lord Chancellor shall, within three years of the coming into force of this section, and, thereafter, every five years, lay before Parliament a report on the operation of this Part of this Act and the Lord Chancellor shall institute such research as is necessary to provide the information for such reports." ").
The noble and learned Lord said: This amendment is one to which we attach a good deal of importance. What became apparent at the early stages of considering the Bill was the relative lack of reliable information about the issues raised in it, particularly in the field of financial provision, with which we are primarily concerned in this part of the Bill. The Law Commission noted on this matter that one of the most serious,
"difficulties encountered in examining any proposal for law reform in this area is that …very little reliable up-to-date information is in fact available about the operation of the existing law".
They go on to say:
"The lack of such factual information obviously constitutes a formidable handicap to the task of law reform".
The noble and learned Lord has, notwithstanding that warning, accepted the handicap and decided to do his best, and I do not criticise that decision.
However, the fact remains that we are now in the presence of, for instance, a most searching and valuable consultation paper which is issued by the authoritative committee which was set up by the noble and learned Lord under the chairmanship of the honourable Mrs. Justice Booth, the outcome of whose work we await with great interest. But it is obvious that there is a good deal that is tentative in the provisions of the Bill. A good deal will turn upon the discretion

51
exercised by the judges in carrying out their duties under it. A great deal will emerge also about the factual information that we feel is presently lacking.
The provisions, for instance, about the adequacy of levels of maintenance are something about which we need further information, particularly in regard to the costs of bringing up children. While that sort of information, as has been pointed out in what I have found to be a most valuable report by the Family Policy Studies Centre, is of significance; it is omitted at present. It is not readily available in the course of public debate on financial support for families. That is particularly so, it is thought, in the circumstances of children living in one-parent families.
We feel therefore that it is important that there should be monitoring of how the Act works in practice. It is also relevant to consider its implication, in the impact of the provisions of the Bill, as to the effect of its costs to the public purse and particularly whether what is provided for is adequate for the needs of the children and those involved.
What was proposed by the Law Commission was the kind of monitoring arrangement that is provided for in Amendment No. 21. The Committee will remember the importance that the noble and learned Lord stressed at the beginning of this great debate on Second Reading of the value of the work of the Law Commission and the importance of adhering to its recommendations, as far as the House thought was practical, practicable and useful; a view that I have always taken on Law Commission recommendations. The Law Commission has said that provision should be made for continuous motoring— —
The Lord Chancellor: That is a little tactless.
Lord Elwyn-Jones: Let us not say "motoring" in the circumstances. That is most unfortunate advice to give the noble and learned Lord whose courage in still taking the road in all the circumstances we admire, even if we do not always consider it discreet or wise on his part.
However, I diverted myself from the serious content of what the amendment proposes. I was endeavouring to read the recommendation of the Law Commission, which is:
"provision be made for continuous monitoring of the operation of any amending legislation dealing with the financial consequences of divorce".
It continues:
"In this context, the provisions of section 105 of the Children Act 1975 (which require the Secretary of State to lay before Parliament every 5 years a report on the operation of that Act, and to institute such research as is necessary to provide information for those reports) constitute an important precedent and one which should be followed".
We agree strongly with that recommendation and the terms of our amendment are specifically directed to give effect to the recommendation. In view of the provisions of the recommendation, it will not impose intolerably heavy burdens on the departments concerned. We give three years for the first report to appear, and thereafter impose a requirement every five years.
This Bill and its provisions will affect hundreds of thousands of families. I do not think that is a great
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exaggeration. Therefore, we feel there is a need for continuous review of the way it works, and its impact on the family scene. We all agree that the family is crucial to the welfare of our society as a whole. I venture to hope that the amendment will be supported by the Benches on my right. In these circumstances, I greatly hope that the noble and learned Lord will say "Amen"—but he does not have to say it in those terms—to the amendment.
Lord Foot: Before the amendment goes any further I wonder whether I might ask the noble and learned Lord, Elwyn-Jones, a question. He will know that Amendment No. 36, in the names of Lord McGregor of Durris, myself and Lady Faithfull, is in similar terms but differs from his in that it gives some indication of the sort of information we think ought to be collected. The noble and learned Lord's amendment fails to give any indication about what sort of information is required or that the Lord Chancellor would be under a duty to collect. Can I ask him what attitude he takes to our amendment and whether he thinks that his is better than ours?
Lord Elwyn-Jones: If I may reply to that, it seems to us that the burden of an annual report was onerous and excessive in the circumstances. A reasonable interval of the kind that is contained in our amendment would probably suffice to meet the needs of the situation. We are conscious of not imposing too many burdens on departmental staffs and courts. That is what motivated our concern. The second benefit that I hope to see in our amendment was its adherence to the admirable precedent in the Children Act and the fact that it uses the fairly precise language of the Law Commission report. In other words, putting it quite brutally, we thought we could capture the support of the whole House by reason of the very moderation of our amendment. That is what motivated it. It might be that at other times we would go as far as the amendment of the noble Lord, Lord Foot, but I am content to accept this modest offering which could be of great importance for the families concerned.
6.8 p.m.
Baroness Faithfull: May I also speak both to this amendment and to Amendment No. 36 which is tabled in the name of the noble Lords, Lord McGregor of Durris, Lord Foot and my name. May I too ask the noble Lord Elwyn-Jones, a question? Surely, if one intends to ask the noble and learned Lord's department to give a report, it should be effective. If it is only to be at the end of three years and thereafter every five years, we should remember that the point of the report deals with maintenance. Income tax changes year by year. Supplementary benefit changes year by year. The report will be out of date within one or two years. If one has to wait five years I submit, with the greatest respect, that the situation will not be as effective as it would be under Amendment No. 36.
The noble and learned Lord referred to the Children Act 1975 whereby a report has to be submitted every five years. This has been inefficient and ineffective. It is a good report when it comes out, but it is so outdated that it is not as effective as it should be. The intermediate treatment did not get going because it

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was not considered for five years. Whereas, if there had been a report every year, it could have been implemented. I submit that Amendment No. 36 will probably be more effective and will help parents much more than Amendment No. 21.
Lord Elwyn-Jones: I am honoured that I should be the subject of these questions but it may well be that we ought to wait until we hear from the noble and learned Lord the Lord Chancellor. If I were occupying a certain place in this Committee I might conceivably give a different answer or possibly even the same. May I wait, therefore, upon the wise words (which I hope will be in full concord with what I propose) of the noble and learned Lord before answering this cross-examination?
Lord Foot: I may add that I am waiting to hear what the noble and learned Lord has to say with bated breath.
The Lord Chancellor: After such an invitation from two such powerful sources, I feel perhaps that I ought to say something if only to stop the breath bating. Because they are in such different parts of the Marshalled List I was going to draw attention to the fact that Amendment No. 36 and this one have a certain family resemblance to one another. Mine is not a department that is normally concerned with research. I have been so concerned in my time long ago, many administrations ago. I think I learned at least two things from being responsible for research. The first is that, if you are going to research into anything, you have got to have a useful lead and, secondly, if you are going to research into anything, you must have an absolutely first-class researcher. If those two conditions are not met, then money on research is usually wasted. The other thing is that, if you were able to say in advance exactly what question you were going to research into, you would probably only be able to do it if you already knew the answer. The more one reflects on research, the more it is clear that it is concerned with the business of acquiring new knowledge.
Having made that rather philosophic statement, I have to repeat that the Lord Chancellor's Department is not, in itself, a researching department. I also say (because otherwise I should be misleading the Committee) that I am about to acquire a research officer but that research officer will not necessarily be geared to divorce. His first job is going to be to establish an agenda for research priorities for the department, so his time will be pre-empted. What I really think about this is that I am perfectly convinced that the Law Commission was right in saying that the financial consequences of divorce ought to be the subject of research study. I think that is right. I think that the form in which the commission made their recommendation has to some extent misled first the noble Lord, Lord Foot and then the noble and learned Lord. I quote now from the present amendment, No. 21, which uses the words,
"lay before Parliament a report on the operation of this Part of this Act".
The terms of Amendment No. 36 are not all that different.
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What I think is needed if we are going to talk in terms of research is, this Act being an amendment of the principal Act, monitoring or research—whichever you propose to call it—into the whole effect of the consequences of divorce, rather than Part II of this Act, which only introduces amendments to a principal Act. I think you have to look into the whole subject or not at all. To research simply into the changes which we shall have made if this Bill becomes law is to look into part of the subject and not into all of it.
The second thing that I want to say on those general lines is that, so long as I hold my present office, I am not the person to do the research. There is the Social Services Research Council which, many years ago, I was instrumental in instituting for this kind of thing. What I am told I am going to do shortly is to enlist the services of the Social Survey Division of the Office of Population, Censuses and Surveys as and when it appears to be required to meet a specific need. It is obvious that there are various candidates in the field—or various horses in the race—and I cannot this evening commit Government resources, for reasons which no doubt the noble and learned Lord will be able to guess if he has not already done so; but I think there is a genuine problem here. I think the problem is to look into the total effect of this fascicle, this bundle of legislative provisions, and not simply Part II of the Act.
I think that the vehicle for doing it is either the Social Services Research Council or the other body the name of which I have just mentioned; and not the Lord Chancellor's Department or his single research assistant. I think it is a matter of social survey. As has been said both in criticism of it and, in a sense, in praise of it, this Bill is very much a lawyer's Bill. I think we do want to know more about the consequences of divorce as it is affected by the whole bundle of legislation.
Whether I shall be able to come back on Report with a slightly more genial expression on my face depends upon consultation within the Government rather than on my natural goodwill, which will always extend to the noble and learned Lord and to the noble Lord, Lord Foot. At the moment, I think I had better consult further about it in the light of my criticisms and of my noble friend's observations and of the two horses which have been put up in this Amendment, No. 21, and in Amendment No. 36. I recognise that we need to know a good deal more about the 170,000 petitions a year and their consequences; and, if I look at anything, I want to look at something rather broader than the changes I have introduced in this Bill.
Lord Foot: I take it that the noble and learned Lord is going to ask for this amendment to be withdrawn in view of what the noble and learned Lord the Lord Chancellor has said. The noble and learned Lord said that the bias of his mind at present, if monitoring and research were going to be carried out, was to have the monitoring of the whole operation of the Act and not merely of Part II. The only observation I have to make about that—and it is because the noble and learned Lord has said more than once during this debate that it is important, if we can, to adhere to the recommendations of the Law Commission, who considered this matter in detail—is to read again the words of the

55
commission at paragraph 11 of Report No. 112, where they said:
"We accordingly recommend, in order to avoid any recurrence of this situation"—
that is, a situation of inadequate information—
"that provision be made for continuous monitoring of the operation of any amending legislation dealing with the financial consequences of divorce".
I suggest that it was clearly in their minds that the important thing was to get more information on these financial matters which are the subject matter of Part II.
I merely invite the noble and learned Lord to give due consideration to that opinion which they there express. I am delighted to hear that the noble and learned Lord is intending to consider the whole question of research and of monitoring. Perhaps I may just draw attention to some other words which were used in that same paragraph by the Law Commission. They are the concluding words, where they have said:
"In this context, the provisions of section 105 of the Children Act 1975 (which require the Secretary of State to lay before Parliament every 5 years a report on the operations of that Act, and to institute such research as is necessary to provide information for those reports) constitute an important precedent and one which should be followed".
I wanted to draw attention to the fact that it appeared to be contemplated by the Law Commission that, as in the case of the Children Act, there should be two separate operations. One is that of monitoring the working of the Act, or certain parts of it, by the issuing of periodic reports. The other one is that in order for such reports to be made available, some research organisation should be found to collect the necessary material for the preparation of the report. In other words, it seems to me that the intention both of the Children Act and, indeed, of the Law Commission in this paragraph was that there should in effect be two separate operations, the first research and the second the preparation of a report based upon what research has revealed. I have no doubt that the noble and learned Lord will be good enough to look at those two points.
The Lord Chancellor: Yes, I will. The noble Lord is quite entitled to say to me that the Law Commission referred to Section 105 of the Children Act. I was not necessarily intending to accept that as my model. I do not want that to be covered by any undertakings to look at this matter which I have given, because it may not be the right model at all. In fact, my brief says that it is not the right model.
The other thing I want to put beyond doubt is that it is not this enactment as a whole that I was talking about when I said I wanted to monitor the Act: I was talking about the principal Act, as amended by this. In other words, I was agreeing with him that what is needed is more knowledge about the financial consequences of divorce and its effect on families, and not, for instance, the two-year period that we were talking about last week or the bits in Part III. As I say, I was talking about the 1973 Act, the principal Act, as it will be amended if we pass this. I was trying to make it clear that as all research demands resources, I cannot give an undertaking on behalf of my colleagues this evening that I can get the resources to put it into effect.
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But I think we have advanced a good deal at any rate as to what is required by way of further knowledge and as to the sort of body to which one ought to look to get it.
Lord Donaldson of Kingsbridge: I know my noble friend Lord McGregor, who will be here later but probably too late for what matters, considers this to be probably the most important matter on the whole Bill. He will be very pleased at the noble and learned Lord's reply. I take it that the noble and learned Lord is telling us that basically he agrees that this research ought to be done, and perhaps on a wider scale, which is obviously more desirable. Even if there is a restriction of money I would plead that it should be begun, even if it is on a smaller scale. In any case, the noble and learned Lord agrees that this is something which should be done, and therefore we are happy to leave it to him to come and tell us in due course what will be done and how it will he done.
Lord Gardiner: In what I regard as perhaps the most important amendment on the Marshalled List, would the noble and learned Lord bear in mind that nearly all the information to which the Law Commission is referring is information in the possession of the courts? They drew attention to the fact that we do not even know what is the average amount of maintenance order made. We do not know how much is in fact paid. I suppose, in relation to the courts, only the noble and learned Lord, and the Home Secretary for the Home Office in the civil and criminal courts, can order them to produce that information. This is the basic information, and this recommendation concerning it was made over two years ago. Here we are today not knowing the facts, with many men's organisations saying one thing and women's organisations saying the opposite. We do not know simply because, although this recommendation was made two years ago, the Government took no steps on it at the time, and that is the reason why today we are in the position we are in.
What many of us are concerned about, I think, is that the next time round—and there will be a next time round—we should be in the same position again because the research work has not been done and nobody knows what the very simple and basic facts are. If the noble and learned Lord the Lord Chancellor would consider that before the next stage of the Bill, I should be grateful. I think it is very important because otherwise, as the Law Commission pointed out, we are really battling in the dark. The noble and learned Lord pointed out that, for the reasons he gave, the recommendation of the Law Commission is probably more likely to be right than wrong, but we are in this position simply because two years ago no attention was paid to this recommendation.
6.25 p.m.
The Lord Chancellor: I shall indeed think further about that. Obviously, if all that is wanted is, so to speak, statistical information coming from the courts as to what orders have been made, and with what effects. I think there would be a great deal in what the noble and learned Lord has just said; but I was thinking on rather bolder lines, if I could get the resources. I think this is a social problem, and what

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one really wants to know is not something which it is entirely in the power of the courts to give—namely, the forms of the order, how many there are and how many children they are in respect of—but what is the effect on the family of doing what we are doing now and doing what we have been doing for the last 10 years. I am quite willing to accept whatever obloquy is due to me for not having done anything on these lines in the way of research beforehand. I do not think that the Lord Chancellor's Department is a researching department, although I fully accept that the court statistics have been criticised in the past as being inadequate both during my chancellorship and during the chancellorship of others. But to be quite frank with the noble and learned Lord, Lord Gardiner, I was thinking that we really want to know what the effect on people is likely to be, and for that purpose the statistics will not be enough.
Lord Elwyn-Jones: I think we are moving slowly in the kind of direction which has been indicated on all sides, if I may say so, apart from a momentary silence from the Government Benches and apart from the interventions of the noble and learned Lord, which, so far as they have gone, have been helpful. I note that in today's Guardian— and my noble friend Lady Birk has drawn my attention to this—a letter from the noble and learned Lord is quoted, which says this, or at least allegedly and reportedly says this:
"My officials will shortly be considering proposals by the Social Survey Division of the Office of Population Censuses and Surveys for a feasibility study on research into the financial study of divorce".
I shall repeat that to ensure that I understand it:
"a feasibility study on research into the financial consequences of divorce".
Then it goes on to say:
"Information about the financial circumstances of divorced men and women who are caring for children and of divorced women whose children are no longer dependent is lacking."
That is what we have been saying on all sides of the Chamber since the Second Reading. Of course it was a brave course to bring in a Bill in view of that admitted lack of knowledge on some of the basic requirements of the situation. However, there is no point in saying that because here we are with a Bill, with some of the provisions of which we approve.
Where do we go from here? The Lord Chancellor's Department, as I well know, is well manned. It has various agencies at its disposal. It can always, with the creativeness of the Lord Chancellor, create new advisory bodies, such as his Legal Aid Advisory Committee. A specific body, I should have thought, could be set up by the Lord Chancellor to carry out the kind of research which is admittedly needed. If we can have an assurance from the noble and learned Lord that steps in that direction will be taken, or that he will think about it between now and Report, it will affect my view as to what course now to take with the amendment which seems to be supported in many parts of the Committee.
The Lord Chancellor: I like the phrase "think about it" because, as the noble and learned Lord knows, I cannot make promises this evening, for the reasons I have already given. However, I am attracted by the idea that we need more information. Although I do
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not recollect it, I do not wish to challenge the authenticity of the letter which appeared in the Guardian—if I wrote it. But it was very similar to what I read from my brief during my first intervention. Which is the more authentic version of the divine text, I do not know.
Lord Elwyn-Jones: In view of the undertaking (which I regret is not more specific, because we might well carry this amendment) that this matter will be dealt with seriously, as it obviously needs to be, we shall await with hope and expectation, if not impatience, what the noble and learned Lord the Lord Chancellor has to offer us at Report stage. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge had given notice of his intention to move Amendment No. 22:
Page 5, line 37, at end insert—
("Restriction on orders to terminate dependence.
25C. Where an applicant for financial provision or property adjustment cannot by reason of his or her responsibility for any children of the family, age, limited capital resources, income, employment or real prospect of employment or other earning capacity, reasonably be expected to adjust to a termination of dependence on the other party to the marriage, the court shall not make an order or orders which has or have the effect of terminating or limiting for a period of time such dependence unless it is satisfied that it would be all the circumstances be just to do so.").
The noble Lord said: This is a probing amendment which attempts to build safeguards into the new principle in the Bill of the clean break. However, in view of the fact that the noble Baroness, Lady Lockwood, has withdrawn her Amendments Nos. 17, 18 and 19, which are concerned to some extent with the same point, it would be sensible for me to withdraw this amendment, await what is put forward at Report and see whether we wish to add to it. Therefore, I shall not move the amendment.
[Amendment No. 22 not moved.]
Clause 3 agreed to.
Clause 4 agreed to.
Clause 5 [Duration of orders for periodical payments and effect of remarriage]:
[Amendment No. 23 not moved.]
Clause 5 agreed to.
Clause 6 [Variation and discharge of orders for periodical payments]:
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 24:
Page 7, line 5, leave out ("while a minor").
The noble and learned Lord said: An earlier amendment just failed, regrettably, to be agreed to. In the circumstances, I shall not move the amendment.
[Amendment No. 24 not moved.]
[Amendment No. 25 not moved.]
6.35 p.m.
Baroness Lockwood Baroness Lockwood moved Amendment No. 26:
Page 7, line 35, at end insert—
("( ) After subsection (10) there shall be inserted the following subsection—
"(11) The following provisions shall apply to any order for periodical payments:

(a) The amount specified in the order shall be deemed to be varied annually by a percentage to be specified in the maintenance increase index.

(b) The variation shall take effect on each anniversary of the making of the order.

(c) The Lord Chancellor with the concurrence of the Treasury shall publish a maintenance increase index, prescribing for each month the percentage to be applied to orders the anniversaries of which fall within that month.

(d) The maintenance increase index shall be calculated so far as is possible by combining the increases in prices and earnings over the previous six months and those expected over the following six months.

(e) Nothing in this subsection shall affect the right of any party to a periodical payments order to apply to the court at any time for the order to be varied; but an order so varied shall thereafter be subject to the provisions for annual increase set out above.".").

The noble Baroness said: I beg to move this amendment which in some ways, although it appears to be complicated, is an administrative amendment. However, it contains a very important principle, that periodic index linking should be built into maintenance awards. The point behind the amendment is that women in particular, although it applies to the few men who are successful in being granted an award, can go back to court for a variation of their award and plead changing circumstances—for instance, a rise in the cost of living since "x" number of years ago when the award was first granted. Therefore, the intention behind the amendment is to try to build in safeguards against such a situation. We suggest that there should be a maintenance index link which would apply to the preceding six months and which should attempt to anticipate the rise in the following six months.
There are precedents for index linking. For example, state pensions and the various Department of Health and Social Security awards contain some element of index linking. Pensions have sometimes been linked to past increases and sometimes to anticipated future increases in the cost of living. There is even an education precedent. I understand that parental contributions to student grants are adjusted periodically to take account of the upward movement in wages and salaries.
On that basis, therefore, we are moving this amendment. It could be a means of saving both the time and money of the courts, since they would not have to deal with applications for variation of the award; it would be made automatically. If the Bill is passed and the criteria in it are right, we ought to be able to feel more confident that the awards made by the courts are just, and that they will be adjusted annually in keeping with changes in the maintenance index link.
The Lord Chancellor: Nobody would wish to make fun of the problem raised by the noble Baroness, which relates to the fact that we live in an inflationary age, although we are doing our best to reduce inflation; but I am bound to say that this amendment would cause
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more injustice than it would remedy hardship. So far as I can see, it would be unworkable in its effect and would increase the applications for variation of the award. It must cause injustice because it is based on an average. Everybody is above or below the average, otherwise there would not be an average. When there are several factors of that kind this is a bed of Procrustes.
It is worse than that, because the amendment takes no account of the circumstances either of the payer of the maintenance order or of the recipient of the maintenance order. In the course of his life the husband may have had promotion, in which case it will be the wife who suffers not only the injustice of perhaps being below the average but also the injustice of not taking advantage of the husband's promotion. He may fall out of work, alas! in these days, in which case it will be the husband who suffers the injustice. In either case the one who suffers the hardship will go to the courts and ask for a variation of the automatic index linking, Furthermore, one party may have fallen into sickness and new needs would then be created. It may be—as one noble Lord said during the course of Committee stage—that more husbands than wives remarry. There may be a child of the second marriage. I hope we shall not stumble into the rather easy pitfall of saying that the children of the second marriage are not as important as the children of the first marriage, because they are.
It may be, of course, that the situation is the other way around. If the first marriage has subsisted longer, it may happen often that the child of the first marriage ceases to be a minor and ceases to be the subject of an order of maintenance. One or more children may be of age. No regard is made in this amendment, nor can be made by a plan of this kind, to the circumstances either of the payer of the maintenance order or of the recipient.
The amendment would insert a new subsection into Clause 6 of the Bill. Clause 6 would in turn insert into Section 31 of the principal Act—that is, the Matrimonial Causes Act 1973—a new subsection (2). The amendment applies to any order for periodical payments but does not affect orders for secured periodical payments. Consequently, most maintenance orders made under the 1973 Act would be affected by the amendment but the secured orders would not.
I am advised that there are about 100,000 such orders registered in the county courts or the magistrates' courts. They all have different dates of annual recurrence. That is the reason why the amendment proposes that the Lord Chancellor should publish a monthly maintenance increase index for any order whose anniversary falls within that month. The means of publication is not clear—it is certainly not specified in the amendment. It would have to be made clear, and it would have to be such as reasonably available to payers and reasonably available to recipients; and reasonably available as well to the magistrates' courts in which divorce court maintenance orders are registered.
Where the order is unregistered, and hence is paid direct, the payer would have to be alert to increase the order by the appropriate amount. The recipient would have to take enforcement proceedings to cover the

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arrears if the payer did not do so. In the case of registered orders, the magistrates' court staff would have to keep a record of the anniversary of each order registered in that court so that they can check the record each month, when the maintenance increase index is published (as it would be each month) to identify the orders affected. They would then have to inform each payer and each recipient of the annual increase of the order and take enforcement proceedings if the payer did not increase the payments by the appropriate amount.
It is another defect, I think, that the indexing would override any amicable agreement which the parties have made themselves, as between themselves. Regardless of what may be just, and regardless of the views of either party, the order is to be automatically increased.
A large number of recipients are in receipt of state benefits. Any increase in the order under this amendment might affect entitlement to benefit, giving rise to additional work for the Department of Health and Social Security—often for relatively small amounts. In the magistrates' courts and the county courts, I believe there would be a huge increase in applications for the variation of maintenance orders from men who simply could not afford to pay the increase. In some cases, as I have pointed out already, the individual's income may have actually decreased during the year without his seeking to have the order varied by reduction.
There are serious defects in the drafting of this amendment. I do not know why,
"the concurrence of the Treasury"
should be demanded, because no public money—except that which might be involved in the consequentials for state benefits from the DHSS—is involved. The proposed subsection (11)(d) requires that the index,
"shall be calculated so far as is possible by combining the increases in prices and earnings"—.
but calculation is either possible or not possible, so what the effects would be of the words
"so far as is possible"
is difficult to see. But I believe that the burden on the courts would be enormous. The burden on the Lord Chancellor's Office would be very high, and the burden on the DHSS would be considerable. Perhaps, what is more important, the injustice would be quite extraordinary, and the chaos which would ensue from an attempt to enforce the amendment would be indescribable.
Having said that, I do not want it to be thought that I am making fun of this amendment. There is a real problem here, and it is caused by inflation. But I do not believe this amendment is a way out, and so I cannot accept it; although I recognise the reasons of the noble Baroness, Lady Lockwood, for proposing it.
6.46 p.m.
Baroness Lockwood: I understand the tremendous burdens which the noble and learned Lord the Lord Chancellor has enumerated. I must confess that those burdens were not so clear to me before I moved the amendment as they are now. I take note of what the noble and learned Lord says about the serious defects
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in the drafting of the amendment. Nevertheless, he did accept that there is a very real problem—the problem of inflation. We have attempted to meet the problem of inflation in so many other areas, and I gave some examples. For instance, the Government have attempted to meet the problem of inflation in respect of parental contributions to student grants.
I wonder, therefore, whether the noble and learned Lord can give further thought to the problem which he acknowledges, to see if there is not some way that it can be met in the Bill at Report stage. With that request to the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.
Lord Mishcon: I wonder if my noble friend and the Committee will forgive me if, before my noble friend withdraws her amendment, I make a few short observations which the noble and learned Lord may care to consider. I may be wrong about this, but I believe that I am right in saying that, at the present moment, if the two parties to a divorce by consent draw up a financial agreement which provides for maintenance to be increased by the cost of living index over a period of years—or, indeed, for the lifetime of that maintenance agreement—the courts will make a consent order along those lines. I believe it is equally correct to say that the courts at the present moment, by way of limitation of their jurisdiction in these matters, cannot themselves make an order which will provide in the future for the linkage of maintenance to the cost of living index.
I use the cautionary and humble words, "I believe that I am right". Possibly, the amendment of my noble friend Lady Lockwood is extremely useful in that it has opened up a discussion of this problem. It may be that the answer lies in the ability of the court, if it sees fit, to make an order which takes into account the effect of inflation and therefore relates the amount to the cost of living index. At least, the noble and learned Lord may think that such a power ought to be given if it is not there already.
I believe I am right in saying that the practice is for the registrars and the judges to say, in answer to an application, that they have no such power. Possibly the noble and learned Lord, in his kindness, will look at the matter when considering the debate which was initiated so usefully by my noble friend, to see whether it is possible in this Bill to give such a power, even if it be not in the words of the amendment.
The Lord Chancellor: I hesitate to respond to that because I have not had an opportunity of taking advice, but I rather boggle at the thought of a bench of two magistrates, or even a registrar, predicting what inflation will be over a period of years. That is the difficulty I see. It is the crystal ball and the inability to look into it.
Lord Mishcon: I really am tiring the Committee, possibly, but I promise only one sentence. I especially said tying it to the cost of living index, so that there would not be any question of guessing.
Baroness Lockwood: If I may say a further word, without gazing into the crystal ball, it would be helpful even to look back on the past year's rise in the cost of living index and perhaps in some way link it with that.
The Lord Chancellor: "Remember not past years".
Baroness Lockwood: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Orders for financial relief made by magistrates' courts in matrimonial proceedings]:
[Amendments Nos. 27 and 28 not moved.]
The Lord Chancellor: Amendment No. 29 is a rather considerable amendment. I do not know what my colleagues are intending to do, but I notice that it is ten minutes to 7 o'clock and I think this is probably going to be a substantial debate, is it not?
Lord Elwyn-Jones: No, Amendment No. 29 is not moved because it has already been discussed with Amendment No. 8.
[Amendment No. 29 not moved.]
[Amendments Nos. 30 to 35 not moved.]
Clause 8 agreed to.
[Amendment No. 36 not moved.]
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 37:
After Clause 8, insert the following new clause:
("Information on children's maintenance costs.
.—

(1) The Lord Chancellor shall publish and make available to courts having jurisdiction to make orders for financial provision in respect of children under the Matrimonial Causes Act 1973, the Domestic Proceedings and Magistrates Court Act 1978 or any other provision information regarding the costs of maintaining children.

(2) In exercising its powers under the Matrimonial Causes Act 1973, the Domestic Proceedings and Magistrates Courts Act 1978 the Affiliation Proceedings Act 1957 or any other provision providing for financial provision for children the court shall have regard to information made available to it under subsection (1) of this section and to any other information concerning the cost of maintaining a child which in its view will enable the court to decide whether to make such an order and at what rate any payments should be ordered to be made.").

The noble Lord said: This is a probing amendment, and I do not think it will take very long—at least I shall not. Its intentions are obvious. It is thought that the courts should have before them such information as is available about the costs of bringing up children and should base their judgments in relation to those costs. This is all it says. It is drafted in a fairly elaborate way, and no doubt faults can be found in it. But the intention is so clear that I think I will simply move it and leave it at that, because it is so near to the time agreed for adjourning this Committee. If necessary, we can continue the argument, but I do not think there is any argument as to what we are trying to do. I should have thought that there was no argument as to its desirability. As the main issue of bringing up children—which is the main part of this whole Bill—must depend on the cost of doing so, some indication should be available to the courts, and through them to the registrars, as to what that is. I beg to move.
The Lord Chancellor: I may be able to help the noble Lord, Lord Donaldson. The new clause itself is not a necessary addition to the Bill. It was not envisaged by the Law Commission that provision would be made by statute for information on child maintenance to be given to the courts. In paragraph 25 of their report they commented on the need for the courts to get this sort of information, and it is apparent from the terms of the paragraph that they thought the most practicable way of providing that information would be by administrative means. I will not quote, but, for reference, it is reflected in paragraph 46(5)(ii)(a), which refers to the matter.
I can tell the noble Lord that action is in hand to publish information to the county courts and to the Principal Registry of the Family Division. I think Ireferred to this on Second Reading, but if I did not I apologise. A notice is to be published shortly in the circular which goes to those courts and which has the attractive title of Court Business. I will see that a copy of that notice is placed in the Library. My colleagues in the Home Office are considering a similar notice for issue to the magistrates' courts in the form of a Home Office circular. I intend that the notice should be brought up to date each year in about November. The notice will provide the courts with information about the current rates of supplementary benefit and the recommendations of the National Foster Care Association as to allowances for foster children. These are matters already within the public domain and therefore the courts can take judicial notice of it. I think I was right in understanding from the noble Lord, Lord Donaldson, that this was a probing amendment. I hope that this information will give him a measure of satisfaction.
Lord Donaldson of Kingsbridge: I am most grateful. It does indeed give me a measure of satisfaction. I will read extremely carefully what the noble and learned Lord has said to see whether it is a full measure. For the moment I will, with the leave of the House, beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 9 to 30 agreed to.
The Earl of Swinton: I think this might be a very convenient moment to resume the House. I suggest that we do not resume the Committee stage of this Bill before 8 o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Farm Structure (Payment to Outgoers) (Extension of Duration) Scheme 1983
6.58 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead)The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead) rose to move, That the draft scheme laid before the House on 8th November be approved.
The noble Lord said: My Lords, I beg to move that this Scheme be approved by your Lordships. An outgoers scheme has operated in one form or another since 1967, and the current scheme, which is made under the Agriculture Act 1967, fulfills our obligations under European Community Directive 72/160 on measures to encourage the cessation of farming for the purpose of structural improvement. This directive is one of four structural directives due to expire at the end of December this year but the new proposals which the Commission put to the Council of Ministers are still being considered by a working group discussion. Consequently we expect the Council of Ministers to be asked to agree to the extension of the European Communities structures measures for 12 months, and we have to extend our provisions in line.
To be eligible under the scheme a farmer must be aged between 55 and 65 and must occupy an uncommercial farm unit; that is, a holding which is not capable of providing full time employment for its occupier and one farm worker. The relinquished land must be amalgamated with a farm business which has a development plan as provided for by the farm and horticulture or agriculture and horticulture development schemes. Alternatively the land may go for afforestation or for recreation or for some other public use. The farmer relinquishing the land must also undertake not to farm commercially, although he is allowed to maintain a small area of land for private use, such as for a domestic house or garden.
The financial incentives available to the successful applicants, of whom there are currently about 25 each year, are paid either as a lump sum of between £1,000 and £3,000 or by way of annuity of between £250 and £450. The actual amount depends in part upon the size of the land being given up. Of these payments, 25 per cent. is eligible for reimbursement from the guidance section of the Community's FEOGA fund.
The Payments to Outgoers Scheme 1976 is due to close to new applicants on 15th December 1983. The instrument before us would extend the period for applications until 31st December 1984, so that the United Kingdom would continue to meet its Community obligations under Directive 72/160. I beg to move.
Moved, That the Farm Structure (Payments to Outgoers) (Extension of Duration) Scheme 1983, laid before the House on 8th November be approved.—(Lord Belstead.)
Lord John-Mackie: My Lords, I do not think that I need to say much about this scheme. The noble Lord has very ably explained it to the House. However, I would just say that I had quite a lot to do with the introduction of the scheme as I was a junior Minister at the time. The scheme had much criticism. I notice that the noble Lord says there are 25 applicants each year, and that is not many. It was considered that amalgamating farms when there was such a demand for them was a had thing. But there are many farms in this country, particularly in Scotland, that are so small they are completely non-viable. The scheme helps those people who generally are not well off to obtain some help to retire from them and enable the farms to be amalgamated with neighbouring viable farms.
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As the noble Lord says, this scheme is to he continued until the end of next year. May I just put one small point to the noble Lord. The printing of these orders, and so on, must cost money and need a lot of work. I have often wondered whether it would not be better if the scheme were just simply continued indefinitely and an order made to stop it. This would be preferable to repeated orders to carry it on. I am not sure whether that would be possible but it seems to me that these schemes come forward repeatedly to be continued for another year and it might be better for indefinite schemes to be stopped by an order rather than have this continuous flow of paper. However, we commend the scheme.
Lord Belstead: My Lords, I am grateful for the welcome given to the scheme by the noble Lord which was not unexpected because he was in at the birth of the present scheme. Incidentally, perhaps it would be of interest if I said that since the scheme began in 1976 there have been about 300 applications, of which 170 have so far been approved, and grant paid which totals about £250,000. Of course, we have been reimbursed from the FEOGA fund to the tune of around £67,000. If, as I guess from what the noble Lord said, we agree the scheme this evening, and it has been agreed by another place, that will mean, roughly, additional assessed expenditure for the next year of about £65,000, and 25 per cent. of that will be eligible for reimbursement.
The only other point I make is that the noble Lord put his finger on the slightly awkward question of why structural policy is apparently geared to removing some small businesses and perhaps making larger businesses even larger. I think the noble Lord answered that better than I could have done. I would only add that in the noble Lord's own home country there are, after all, many small farmers already benefiting substantially from aid under structural measures such as farm grant schemes, particularly in the less favoured areas. I do not believe, and I do not think that the noble Lord feels, that this scheme has worked out in the way in which the criticisms suggest. It has simply been a way of less young farmers with uncommercial holdings being able to get out of farming. It has not happened in the numbers we might have hoped but, nevertheless, it has been of help to some.
On the noble Lord's specific question, I think the truth of the matter is that in the present situation we did not quite know, speaking nationally, where we stood. We hoped that the discussions in the Council of Ministers on the structures directives would have been completed by now. I am as sure as I can be that there will be important and valuable conclusions as a result of the discussions in the Council of Ministers. But those discussions are still continuing and, therefore, we were in a position where we had to bring forward a scheme to continue our national arrangements for one more year. The noble Lord will understand when I say that we could not foresee that a little while ago and that it could not be automatic. Therefore we had to bring in this special scheme.
On Question, Motion agreed to.

Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 1983
7.8 p.m.
Viscount Long Viscount Long rose to move, That the draft regulations laid before the House on 16th November 1983 be approved.
The noble Viscount said: My Lords, I beg to move that the Pneumoconiosis etc. Workers' Compensation) (Payment of Claims) (Amendment) Regulations 1983 be agreed to. These regulations will increase by 5 per cent. the amounts of compensation paid under the Act to those first satisfying all the eligibility conditions on or after 1st January 1984.
The original payment regulations came into operation on 1st January 1980. The payment tables in those regulations were increased by 40 per cent. from 1st January this year by regulations debated in this House on 20th December 1982. This restored the payments to the value they had when first determined. This proposed further increase will once again restore the value of these payments.
The purpose of the Act is to provide for compensation, in the form of a single payment, to sufferers from the dust diseases pneumoconiosis, byssinosis and diffuse mesothelioma, where there is no former employer remaining in the business against whom a claim for damages might have been made.
The Act is not intended to be used as an alternative to seeking compensation through the courts. These diseases are in a special category as they are slow developing respiratory diseases. They frequently do not manifest themselves until well over 20 years after first exposure to the dust. They often continue to develop after exposure to the dust has ceased. A sufferer from one of these diseases is therefore at a disadvantage when he seeks to sue a former employer as there is a greatly increased likelihood that his employer will have gone out of business by the time he realises he has the disease and seeks to obtain compensation. The problem is particularly acute for those who worked in declining industries.
I now turn to conditions of eligibility. It is therefore a condition for payment under the Act that every relevant employer of the sufferer has ceased to carry on business. The Act explains that a relevant employer is any person by whom the disabled person was employed at any time while he was developing the disease and against whom he might have, or might have had. a claim for damages in respect of his disablement. In addition, the sufferer must be in receipt of disablement benefit and he must not have brought any action or compromised any claim for damages. Provision is also made for the payment of compensation to certain dependants of deceased sufferers.
Next, I come to applications and payments made. During the first 1 I months of this year there have been 186 fresh applications in addition to 38 applications outstanding at the beginning of the year. Of these, 133 applications were approved at a total cost of £570,000. Seventy-four applications were rejected, mainly because there was still a relevant employer still in business. Thirty applications are at present
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outstanding. Thus the total of payments made under the Act since it came into force is £25.5 million. Nearly 4,500 people have benefited.
In conclusion, these proposals will maintain the value of the compensation paid under the Act to people who are disabled by these distressing diseases and are unable to claim compensation through the courts. I understand that my right honourable friend the Secretary of State intends to review these amounts annually in the future. I commend the regulations to your Lordships.
Moved, That the draft regulations laid before the House on 16th November 1983 be approved.—(Viscount Long.)
Lord Dean of Beswick: My Lords, I thank the noble Viscount. Lord Long, for the spirit in which he moved the regulations. They cater for people in society who, because of circumstances beyond their control, have gradually deteriorated through industrial disease and have no recourse to action against their former employer because the firm no longer exists. From various inquiries I have made, I understand that the largest group of applicants to and recipients from the fund is now textile workers. The noble Viscount is correct when he says that the applicants come mainly from the declining industries. I should think that steel smelting and engineering generally come a very close second to the textile industry. The number of applicants from those industries might even equal the number from the textile industry. At one time we had a tremendous industry in steel, iron and brass foundries. They were a large percentage of the engineering industry. Anyone who saw, even a few years ago, the conditions in which people were working in the fettling and blasting shops knows only too well the type of matter that was being inhaled. As the noble Viscount said. the disease is regressive. Very often it starts as a slight cough, but as time moves on it becomes very serious indeed.
I have taken the trouble, as I am sure the noble Viscount has, to read the debate in Standing Committee in another place. I do not put my arguments in the same way as the honourable Member for Bolsover, but he sometimes gets near the nub of the argument on what we should look to for the future. People who suffer from closely related diseases, such as emphysema, find it difficult to understand why they are not included in the scheme and why they are treated differently. To the ordinary man in a textile factory or steel works—whether the disease is silicosis or asbestosis—it means the same thing if he has a bad chest or bad lungs: the name of the disease does not matter. The man becomes an almost permanent invalid with no hope of recovery.
I am glad that the noble Viscount said that the Secretary of State was keeping the matter under review. Progress has been made in various industries in the type of extractors used, in damping down and in the types of spray used in these very difficult processes. The methods that were once used took a substantial toll of people's lungs, causing chest complaints, and so on. I hope that I am right in believing that the number of people contracting these diseases is diminishing. I have not seen figures for the past few years. If the number of applicants is diminishing, I hope that the

69
Secretary of State and the Government will look not to reducing the overall sum but to erring on the side of generosity, being kinder wherever they can and, if necessary, substantially increasing some of the grants.
I am sure that the grants are extremely welcome, but we should bear in mind the additional things that the sufferers need to purchase and the type of life that they have to live. I have been round the homes of elderly people in industrial areas, as I am sure have other noble Lords. One finds the odd miner, dry grinder, and so on, who is a complete wreck and has no recourse to any claim because the company that he worked for years ago no longer exists.
I have been as brief as possible. It is a very human problem. I am glad that the noble Viscount said that the Secretary of State was keeping the matter under review. Speaking from this side of the House, I hope that when it is possible he will look at the compensation more generously, in which case everyone will be extremely grateful. I support the regulations.
Lord Kilmarnock: My Lords, we on these Benches should also like to thank the noble Viscount, Lord Long, for introducing these amending regulations. The scheme is clearly a good one as far as it goes. We understand that the intention is to uprate it by something in the order of 5 per cent. for the current or expected level of inflation.
I have one or two questions. The noble Viscount told us that last year 133 applications were approved, that there were some 30 outstanding and that 74 were rejected on the grounds that there were still existing employers or ex-employers. Does he have any evidence as to what has happened in the courts where applications have been made by the people who were rejected under the scheme? It occurs to me that there may be employers who have gone out of business and who may not be able to meet a claim of this nature.
I think I understood the noble Viscount to say that there have been 186 applications made during the past 10 months. I wonder whether he has any evidence of how many of those have been approved and how many have been rejected. Finally, does he agree that the regulations bring into prominence the great importance of the whole area of health and safety at work? Will the Government undertake that there will be no further cuts in this field?
Viscount Long: My Lords, I am grateful to the noble Lords, Lord Dean of Beswick and Lord Kilmarnock, for showing interest in these regulations, as they are particularly important. They concern people who can never be cured of these dust-related diseases. I welcome the questions that have arisen.
I should again make it clear that my right honourable friend the Secretary of State intends to review these amounts annually in future. They will never be allowed to slip away, even with inflation. The noble Lord, Lord Dean of Beswick, spoke about keeping our eye on the disease. Medical research into these diseases continues. It is vital that it should.
Lord Dean of Beswick: My Lords, some of the worst scourges of industrial disease have almost disappeared because of new techniques. That certainly applies to
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the chemical industry and cancer-related diseases. I am sure that most people are pleased about that, but we wish to ensure that the process continues.
Viscount Long: My Lords, I am grateful to the noble Lord for that intervention. The Industrial Acts have helped to wipe out some of the problems in the chemical industry, and so on. I was interested to hear the noble Lord quote the textile industry. The number of sufferers in that industry was fairly large. The mining industry also had an enormous number of people who suffered from dust-related diseases. In the textile industry there were 2,258 approved sufferers, and on top of that there were 276 dependants. I am glad that the noble Lord referred to the textile industry, since I feel that very few people realise how affected it is by its own problems. The noble Lord also mentioned the permanent invalids. This is a very great tragedy, it is a very nasty disease, and medical research must go on to find some help and cure for the sufferers.
The noble Lord questioned me on the figures for the present year. I can say that in the first 11 months of this year there have been 186 fresh applications. It appears that the numbers are balancing down to that figure from three, four, five or more years ago, when the figure was very much higher. So we are beginning to see and record the trend, and I think that that in itself is a help.
The noble Lord, Lord Kilmarnock, asked me some questions, and if I may, I should like to write to him regarding the figures. I wish to thank him for taking an interest in these vital regulations, since we really must keep our eye on the sufferers from this deadly disease, pneumoconiosis, as well as diseases such as asbestosis and so on. I thank the noble Lords, Lord Dean of Beswick and Lord Kilmarnock, for their interest. If I have not replied in full to them, I hope that they will allow me to write should they need any further advice on the regulations. I am most grateful to them.
Lord Kilmarnock: My Lords, I am most grateful to the noble Viscount for his response to my questions and I look forward to his letter.
On Question, Motion agreed to.
The Earl of Swinton: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.22 to 8 p.m.]

Matrimonial and Family Proceedings Bill [H.L.]
House again in Committee.
Clause 31 [Directions as to distribution and transfer of family business and proceedings]:
On Question, Whether Clause 31 shall stand part of the Bill?
Lord Mishcon: I beg to move that Clause 31 be omitted from the Bill. So that the Committee is aware,

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and immediately aware, of the reason why notice has been given that Clauses 31, 32 and 33 should not stand part of the Bill, it is that, in the view of those who support this amendment, a great opportunity has been missed to deal with the whole question of the merger of those courts now dealing with family matters; in particular, divorce, matters relating to custody of children, care and control of children, and maintenance. A great opportunity has been missed to merge these courts and to have family courts.
This is not by any manner of means a new question. There was The Law Society document of some years ago to which, with the Committee's forbearance, I shall refer in a moment. There was the Lord Chancellor's own consultation document issued earlier this year. There has been a great amount of propaganda put out by organisations dealing with matrimonial matters, all of them leading to the conclusion that what we badly need are family courts in this country and not a division of the High Court, together with county court powers and magistrates' courts dealing with these matters having separate jurisdiction and dealing with them in many cases piecemeal.
It is a sad fact that the clauses to which I have referred in this Bill merely play with the problem, if I am not using too dangerous a phrase, by allowing the transfer of business between the High Court and the county court. That is all that this Bill does. If we do not take advantage of this opportunity to create family courts and if we allow this matter to go into further consultation with the Home Office, as suggested, I think, by the noble and learned Lord on Second Reading, then it is obvious that time will elapse and it may be many years before this opportunity ever arises again. What I, together with those who support me on this issue, fear is that this is an opportunity missed and is an attempt to deal with the problem in a way that leaves all the things we have been fighting for over the years unanswered and undealt with.
If I may be a little more constructive, I should like to tell your Lordships what is envisaged in relation to the family courts. I shall, if I may, refer to the document, issued in January 1979, as a discussion paper, by The Law Society. It was called, A Better Way Out. I should like to read to your Lordships about the set-up that this discussion pamphlet recommended. It was:
"A system of Family Courts should be set up. The first tier of the Family Court should have jurisdiction over substantially all family law and consist of a three person bench with a legally qualified chairman, including a man and a woman. The legally qualified chairman alone should have jurisdiction in emergency and procedural matters. He should also have jurisdiction over undefended divorce proceedings where no other relief was needed. All other matters should be decided by the Court of three. Appeals should lie from the first tier Court to a Family Division of the Court of Appeal. Both branches of the profession (i.e. barristers and solicitors) should have rights of audience in the first tier. The first tier of the Family Court should sit locally in all parts of the country, in the interests of maximum accessibility …Additional staff should not be necessary on the setting up of the Family Court. It would be staffed largely by staff from existing jurisdictions on the transfer of work from those jurisdictions to the Family Court …
The procedure of the Family Court should be informal. Whenever practicable, all issues, e.g. divorce, financial relief and welfare of children, should be decided at a single hearing—a consolidated trial. Adversarial procedure should be eliminated as far as possible by the court assuming an inquisitorial role. Decrees of divorce, legal separation and nullity should be announced by a public written notice at the office of the Family Court".
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It is not only the legal profession that has been asking for the family court over the years. I repeat that it is organisations which are familiar with the problems of families and the unfortunate problems that arise from divorce. There are many of us, not necessarily all supporting what I am now saying, who feel that, however discreet may be the magistrates' court, the very fact of those who have matrimonial troubles being told to go to a court that normally deals with criminal affairs is quite wrong. It is the wrong atmosphere, however understanding the magistrates' may be. This is another reason why the family court would be of such great importance.
The fact of this opportunity being lost has, I notice, been observed by the press dealing with the current issues involved in this Bill. I have noticed, in particular, that The Economist of 29th October specifically mentions this matter. I should like, in conclusion, to quote from the article in The Economist of that date:
"However, the bill will do little to improve the chaotic distribution of family cases, now haphazardly divided between magistrates' courts, county courts and the high court. The system is a jumble, with the different courts run by different rules, but offering overlapping remedies. Proposals favoured by the Lord Chancellor to link the family work of the high court and the county courts could have formed part of the new bill. Now the plans appear to have been shelved. The procedural changes in the bill are likely to be modest.
"The last opportunity could well spell the end of hopes for a single family court for England and Wales by the end of the decade. The proposed merger would have stopped short of the welfare-based family court, advocated in 1974 by the Finer committee on one-parent families. and in 1979 by the Law Society. But it would have been a step in the right direction."
I hope that the Committee will think that it has a duty not to miss this opportunity to do something which is so fundamental to the whole question of dealing justly, properly and humanely with those family disputes that unfortunately do take place and with which the Bill at present before us deals.
Lord McGregor of Durris: I wish to say a few sentences in support of what the noble Lord, Lord Mishcon, has just urged about family courts. I do so against a background in which the noble and learned Lord the Lord Chancellor declared himself in your Lordships' House some three years ago in terms:
"I am a family courts man",
to which he added the qualification that that was provided the procedures and personnel of the court were not special to that court. In fact, the family court has been urged by every body which has looked at the problems in this area of law for more than 30 years. I think that the first official suggestion for a family court was made by the noble and learned Lord, Lord Simon of Glaisdale, as he now is, in the evidence he gave to the Morton Commission in 1952.
Since then a family court has been proposed by the noble and learned Lord, Lord Scarman. It was proposed by the Houghton-Stockdale Committee on Adoption; and, as the noble Lord, Lord Mishcon, said, it was proposed by the Committee on One-Parent Families. It was proposed, I think in the late 1970s, by a research sub-committee of the Society of Conservative Lawyers; and, most importantly of all for our purposes at the moment, it has been proposed in detail over the years by Judge Jean Graham Hall. Judge Jean Graham Hall is the only proponent of the family court who has tackled what was asserted for 30 years to be

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the main reason for not having one; namely, its excessive cost. Indeed, when the Committee on One-Parent Families proposed this, it was subsequently said by the then Secretary of State for Health and Social Security in another place that the cost would be far in excess of what could be contemplated by the then Government.
Judge Jean Graham Hall has made a recent study on a small scale (but a scale sufficient to show the general trend) of the consequences of setting up a family court. She has come to the conclusion that cost would not be an obstacle and that there would in fact be a number of unexpected savings. She concludes, for example, that the cost of domestic proceedings in the magistrates' courts is, in fact, currently higher than the cost which would accrue to the same proceedings in the county court. I am, indeed, disappointed that no official costing has been made or, as far as I am aware, has been attempted of the family court. I would very much hope that the present Bill might be the occasion for putting such a costing under way.
I accept all the grounds on which the noble Lord, Lord Mishcon, founded his plea for the family court. I should like to add to them just two, one of which he mentioned but did not pursue. Every body which has looked at this question has urged the abolition of the magisterial jurisdiction in family matters. It was urged by the Gorrell Commission in its report in 1912. That commission said plainly that it would have recommended the abolition of the jurisdiction had it been able to think of anywhere else for the poor to go.
The abolition was recommended after a very detailed and careful discussion by the Committee on One-Parent Families. I do not wish to rehearse the arguments again, beyond saying that there is behind what the noble Lord, Lord Mishcon, said, a great weight of evidence and very little argument to the contrary except from the Magistrates' Association itself in the past and from the Home Office. I understand that the view of the Magistrates' Association is that it would participate in a family court provided that such a court gave scope for lay magistrates. The argument of the Committee on One-Parent Families was not that it wished to abolish the magisterial jurisdiction in order to get rid of lay magistrates in the family court; on the contrary, it wanted to give the lay magistracy a wider scope by bringing them into the new family court, so that there would be no fear, if this development took place, that lay men and women would be taken out of the jurisdiction.
The last reason for urging a family court which I would wish to add to those advanced by the noble Lord, Lord Mishcon, is an issue that was touched upon during the Second Reading debate; namely, the critical importance of the Supplementary Benefits Commission within this jurisdiction. I think everyone agrees that very large numbers of persons passing through the family court, or through any courts having a family jurisdiction, will have to survive for periods of time on supplementary benefit. I do not think that, as a society, we have yet faced up to the consequences of making divorce so widespread that large numbers of people are brought within its ambit, and hence brought to the need of looking, temporarily at least, to the taxpayer for subsistence.
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It is a disagreeable subject. It is surrounded by a good deal of, if not moralising, at least strongly held moral views. These could, at least in practice, be tackled squarely if the Supplementary Benefits Commission were closely related to the determination of maintenance by the courts. The plain fact of the matter is that in many instances the courts lack the means of making a proper financial determination, and the two institutions—the court and the Supplementary Benefits Commission—continue to act separately as though there were no connection between their respective roles. I very much hope that the noble Lord, Lord Mishcon, would accept that one argument for a family court is to bring the private law of family maintenance into a much closer relationship with the public law of social security than it now enjoys.
8.21 p.m.
Baroness Birk: I should like to support my noble friend's amendment to delete these clauses in order to support the case for the family court. The noble Lord, Lord McGregor, mentioned Judge Graham Hall and the work she has done on this. Something over 25 years ago she and I wrote a pamphlet on the family court.
I am speaking personally from nearly 30 years as a magistrate—amagistrate on the old matrimonial court and now on the domestic panel. Although we do the best we can—and we often do as well as is possible in the circumstances—my noble friend is absolutely right that the ordinary magistrates' courts are not the place for trying to resolve family problems, because this is what it is usually all about.
I remember being in court many years ago, and being in the ordinary court, and a husband and wife were before us on charges of assault, one against the other. On the Friday of that week the same husband and wife were in the matrimonial court for matrimonial business. On the Tuesday of that week the children were in the juvenile court. It was sheer accident that the magistrates knew that the different parts of the family were coming before these different courts. What could be more costly, in both financial and social terms, than a set-up like that?
I was in America many years ago, and in New York I was impressed by the working of some of the family courts there. I am again speaking personally, but there you would get what is so lacking here when one tries to get an informality and a rapport with the people concerned. My noble friend is quite right when he says that they are not being summoned there for having committed crimes. They are not being summoned there for something or other which is outside their family circle: they are there for help to try to sort things out. Yet you have even the physical paraphernalia of the magistrates sitting up on high, the clerks below, and the people either in what is usually used as the witness box or even on occasion the dock. The whole atmosphere is absolutely and completely wrong.
As the noble Lord, Lord McGregor, mentioned, we had the Finer Report something over 10 years ago. Many years ago—and I think that the noble Lord, Lord McGregor, was a member—we had the Council for Children's Welfare, which was a small group of us

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working on the whole question of children's welfare. In those days, we had research into the effect of high rise flats on family living. I am again going back 25 years, but we then came out with plans and a blueprint for family courts. Now here we are, in 1983—and I agree with noble Lords who have spoken that it is a tragic disappointment, I can only put it that way—and we find in this Bill just this tinkering around, moving from the high court to the county court, but without the coherence that we need and the sympathy and humanity that one can find only in a family court.
I know that the Magistrates' Association were for a time against this—I did not agree with them—but there is no reason why there should not be lay magistrates involved. We have nowadays the expertise of social workers and probation officers. In the days when I was first on the Bench one was often plonked into the matrimonial court because so many of one's colleagues did not want to do it, but nowadays the people on the domestic panel are usually people who want to take their part there.
However, we are really working in impossible circumstances. We are not able to do what we should be doing, which is for families and not just for individual people in isolation. When all the costings are done, I cannot believe that it will be more costly in the long term—and I am thinking in social terms as well as in financial terms—than the present set-up we have at the moment.
The Lord Chancellor: We are now discussing Part V of a Bill which has five other parts. There are, I suppose, somewhere about 20 people in the Committee. The idea that you could put a scheme as ambitious as that which is outlined in one form by the noble Lord. Lord Mishcon, and in various other forms and with unbounded enthusiasm by the noble Lord, Lord McGregor, and the noble Baroness, Lady Birk, into Part V of this Bill is sheer Cloud Cuckoo Land.
I of course welcome this debate if. and in so far as, this is a probing amendment, which I hope and believe it is. If it is more and it is desired to transform this Bill, I can only assure the Committee that there is no prospect at all of the Government putting it into this Bill. The idea of family courts is, as has been said by every speaker so far, an old one. Since only those who are emphatically in support of them have spoken, one would think that it was universally acclaimed. This is not so.
The magistrates are against it. The profession, I think on the whole, is against it, but it is certainly not united in its favour. The judiciary—by which I mean the professional judiciary—is certainly not for it. The public is unprepared for it, and the implications of it have been totally unresearched. I myself stand unrepentently, since my previous remarks have been quoted, as on the whole in favour as such a proposal, but to push it forward now would be to court disaster. To speak of opportunity having been lost, or to say that this particular set of proposals in Part V of the Bill is, to use one uncomplimentary phrase, tinkering with the problem, or, in another uncomplimentary phrase, playing with the subject, is, again, contrary to the truth. The truth is that if one is in favour of family courts—and on the whole I think I should favour
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them—it is a modest step towards the achievement of family courts.
But it is suggested that we should merge the courts—that is, abolish the Family Division of the High Court take away the existing jurisdiction of every county court judge and every registrar, remove the jurisdiction of the magistrates and mix them into something of which we do not know the full jurisdiction. The composition is unstated, the channel of appeal has only been touched on and whether the appeal is to be by way of rehearing or by any other means, or limited to questions of law is something which we do not know. Nobody has discussed whether one adds affiliation proceedings. Whether the noble Baroness, Lady Birk, would have included her juvenile or her assault proceedings into the family courts I do not know, and perhaps one day we shall know if we have family courts.
However what we know from the noble Lord, Lord Mishcon, is that the whole tradition of English law, which is based on adversarial advocacy, is to be supplanted by an inquisitorial jurisdiction (whatever that may mean). That fills me with considerable doubts and anxieties. All I know about the inquisitorial jurisdiction wherever it has been tried is that it takes about seven years to reach a conclusion which under the adversarial system is arrived at fairly quickly in comparison.
As long as this is a debate about family courts I am happy to welcome it. If it is a debate about what is to go into Part V of the Bill I am a little less than enthusiastic, although I would probably come down in favour of family courts in the long run. I originally intended this Bill as a Bill which would amalgamate the jurisdiction of the county court and the jurisdiction of the High Court in matrimonial disputes into one jurisdiction, rather on the line that the Crown Court amalgamated the courts of quarter session and the courts of assize in criminal affairs. I found that even that was too big a step to take, given the problems which would be involved in the actual administration and jurisdictional change, and it was also too controversial because they were not universally accepted. I hoped that that would be a rational second course to take. I am quite certain that this is a step in the right direction and a fairly reasonable step because it achieves transferability between the two main civil jurisdictions of the High Court and the county courts.
The magistrates are against a change. So far as I can ascertain from private contacts, opinion is very mixed about whether the abolition of the magistrates' jurisdiction would be a good thing or not. It was started in the latter part of the last century. It proved a quick source of remedy compared with the rather more complex and formal remedies available in the courts of that day. My information is that it is fairly popular to this day. Certainly there is no compulsion in a great many cases to resort to the magistrates, because the jurisdiction is largely concurrent with that of the county court or even the High Court. People use that court because they find they get satisfaction more quickly and more cheaply than in the other jurisdiction. If we have family courts all that is to be done away with.
I do not think the noble Lord. Lord Mishcon, if he sat on this side of the Chamber, would find himself as

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popular as he was with the rather limited audience whom he was addressing in the support of his amendment. I think he would find that there was a good deal of hostility to his proposal. I am far from saying that it was a bad proposal for that reason. Things have to be done in the end by digging the ground, ploughing it, harrowing it, sowing seed and hoping that it will come up. I think he is making a big mistake if he thinks that the abolition of the jurisdiction of the magistrates' courts would be fought without a fairly bloody battle.
What in the end I decided upon is what is in the Bill. I did not decide upon it because it was the best. I did not decide upon it because I did not believe in it. I decided upon it because it was the most substantial advance that I could hope to make within the compass of this Bill and because it did not prejudice any further advance which other people might make hereafter; whether it will be me or some other person standing in my position I cannot say. My view is that it will be necessary whatever is done, even if one goes the whole way to chop it up into three instalments. One is the instalment which is now proposed, which is no mean instalment. The next would be the amalgamation, if your Lordships think fit (and many people do not) between the family jurisdiction of the High Court and the county court. The third would be the formation of a series of family courts. I am not talking about the expense. I realise that calculations of a vague kind have been made. I am told that it would be a good deal more expensive than has been thought. That does not concern me at the moment. The new family court would have to be manned with persons of the type of magistrates, some of whom would no doubt come from the existing magistracy and some would not. Those that came from the existing magistracy presumably would have to be replaced on the existing magistrates' bench by somebody else.
Lord Chancellors appoint magistrates outside Lancashire. Somebody else does it inside Lancashire. They are constantly under pressure because of unemployment, because the self-employed cannot join, the wage earners find it difficult to get time off and the balance that results is not necessarily an adequate balance between different classes of the community or different political persuasions. One cannot find, in the course of a Bill dealing with something else, the personnel to man the new family courts. I presume the county court judges would have to sit as the judges of that court because so far as I know there is nobody else to put in that place. I suppose also that in the family court they would be confined to that court and not be allowed to try the other matters that they have to try.
I am not hostile to family courts. I read the Finer Commission report and there is a great deal to be said for a family jurisdiction of some sort. Those people to whom I have spoken from Canada and other parts of the Commonwealth where these courts exist, have spoken warmly of their successes. I have no dogmatic hostility whatever in my mind to this proposal. The only thing I am sure is, first, that it could not find a place in the Bill, even if it were ready to be put in the oven, baked and brought out as a complete family court and, secondly, it could not go in the Bill even if it were. I am sure it is not ready. I am sure it is still very largely uncultivated soil.
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What I am sure about, in addition, is that I have made the right choice even in cutting short what I should dearly like to have done; that is to say, to amalgamate completely for this purpose the family jurisdiction of the county court and the High Court instead of to arrange for transferability. I am quite sure that that was the right decision and will result in the end in quicker progress further on. Having said that, I do not want to say a word which is hostile to the general conception underlying this, but I repudiate the suggestion that this is a chance missed or that I am either tinkering or playing with the problem.
Lord Mishcon: I must confess that I am disappointed with the reply of the noble and learned Lord. It was given with his usual courtesy and clarity of mind, and it was good to hear him say that he is not hostile to the conception. But I must confess that I am terribly disappointed that the opportunity has not been taken to do much more about merger, and to create the family court. There was one misstatement that the noble and learned Lord made, and, knowing him as I do, I am sure that that was a mistake that he would want to correct. He said very boldly that the profession was against the idea.
The Lord Chancellor: I said that they were not united in support of it.
Lord Mishcon: With great respect, if he reads Hansard tomorrow he will find that in enumerating those who were against it he said that the profession was against it. I want to make it abundantly clear that the Law Society has been for it for many years, has issued publications in regard to it and (I am authorised to say by the Law Society) is still in favour of the family court and still in favour of a Bill like this carrying this burden upon its shoulders and dealing with it.
I ought just to say this. The noble and learned Lord was right. He did not do any precise count, but it was very obvious from what he said that this Chamber is not very full at this moment in order to discuss an important problem of this nature. Therefore, it would be absolutely wrong for me to try to seek the opinion of the Committee, at this hour and with this number involved in your Lordships' Committee, on, as I have said, such an important issue. Obviously, I shall want to reflect upon what the noble and learned Lord has said. I shall do it with some amount of grieving, I anticipate; nevertheless, I will reflect, and possibly it is only right to bring this matter forward, if we do bring it forward again, on another stage of this Bill.
Clause 31 agreed to.
Clauses 32 to 34 agreed to.
8.42 p.m.
Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 38:
After Clause 34, insert the following new clause:
("Rules regarding conciliation.
Provision shall be made by rules of court made under section 34 of this Act for the parties to a petition for divorce, judicial separation or nullity of marriage to attend at court in order that directions may be given, and enquiries may be made of them as to whether any attempt at conciliation has been made by either or both of the parties, and rules of court shall further

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provide that if the court is satisfied on such a hearing or at any stage in the proceedings that there is a reasonable prospect that any issues between the parties relating to the children of the family or to financial provision or property adjustment or to any other matter may be resolved by agreement, the parties may be referred by the court to a court welfare officer or to any other person who would be willing to assist the parties to reach ageement on any of those matters.").
The noble Lord said: This amendment after Clause 34 is a probing amendment, the purpose of which is to recall some very strong expressions in favour of conciliation made on Second Reading and to draw the Committee's attention to the fact that it would be perfectly possible under the present Bill to adopt some such arrangement as would require inquiries to be made through the court welfare officer as to whether or not conciliation had been attempted. It was the Committee on One-Parent Families which, I think for the first time, drew a clear distinction between conciliation and reconciliation, and urged the importance of conciliation through the court process in circumstances in which it clearly recognised and said that in its view reconciliation was entirely inappropriate to be handled in that manner.
One of the main considerations in respect of the importance of conciliation is the way in which the divorce procedure may be spread out over very long periods of time. It would he quite wrong to think that for all parties it is quick. It may be that the actual breaking of the bonds of marriage is separated by a period from dealing with the custody of the children, and separated also by periods from the settlement of financial matters or the allocation of property.
People who have worked in this area now recognise that much hostility and many anxieties stem simply from the ignorance of people who are facing these procedures as to what they will involve and as to what are the critical issues about which they have to make up their minds before they are settled. The small number of conciliation programmes that are now working, on the reports that have been made about them, seem to have been successful, and my understanding is that the programme in Bristol has been so successful that it has received the support of all the professions working in the courts in that area and of the judiciary in that area.
If what is said about these programmes be true, there is not only a considerable saving in anxiety for those involved but also a considerable saving in speeding up the process and reducing its cost. I would hope, in speaking to this amendment, that the noble and learned Lord the Lord Chancellor would consider in the light of the very strong support and feeling for conciliation procedures whether he could not go further now than seemed to be his intention on Second Reading. I beg to move.
Lord Elwyn-Jones: It occurs to me that it might be convenient for us also to take in Amendment No. 39, which is in the name of my noble friend Lord Mishcon and myself. It covers the same point but in somewhat different, but not substantially different, terms.
Like the noble and learned Lord the Lord Chancellor, I am an advocate of the adversarial procedure, having contrived a living by means of it for very many years. But of all the departments of litigation, the
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matrimonial family field is probably the least suited to the battlefield of adversarial procedure in the settlement of family disputes; that is to say, disputes between husband and wife, the basic decision of divorce and, perhaps even more importantly, the field of the regulation of the financial arrangements between the two parties, the care and custody of the children thereafter. et cetera. At present it has to be faced that some of the bitterest controversies in the matrimonial field are in those very sensitive areas of the family, the future of the children and so on. The position at the moment is that, although I apprehend that most solicitors will themselves endeavour to encourage conciliation, there is no positive obligation or duty upon the courts or indeed upon the parties to have recourse to conciliation.
I remember one quaint experience of seeing a conciliation tribunal in action in China. In a little village outside Peking—a dusty little village on the edge of the desert—the parties were mustered. The husband and wife in conflict were made to sit in physical contact with each other on a small bench, which must have been very painful to them. There was a small tribunal of three lay people with a woman in the chair; and the whole purpose of that first shot at divorce was clearly to bring the parties together in an attempt at conciliation. I remember the chairman saying, through an interpreter of course: "We all have our faults. Are you quite sure that your husband is wholly responsible for the difficulties in your marriage? May you not be partly to blame? Think about it again and come back in a year's time". I am bound to say that this attempt at conciliation did not seem to be very satisfactory because I remember that when we went out into the sunlight at the edge of that desert the wife's partisans were there and the husband's partisans were there, and the wife shouted "He'll still beat me!"
But the attempt was made and I am giving a true but perhaps a somewhat frivolous illustration of the value of conciliation. It did not work in that case but, seriously, it could work in many. A criticism that, if I may say so, can be made of the Government now, with the present arrangements, concerns not only the inadequate financing of conciliation bodies that try to achieve these things, like the Bristol court, which has had remarkable results, but also the non-financing and the failure to give any positive encouragement to what is going on. Conciliation can be effective—rarely perhaps, but occasionally it may succeed achieving reconciliation.
Where it can probably be more effective is in the consequential field when the marriage has ended and there comes the problem of settling what to do about the children and all the family provisions. There is a terrible temptation to think that once a divorce is agreed upon all is resolved. It is only in the horror of what follows the break-up of the marriage, in terms of the children, that full realisation of what is involved for the family dawns upon the parties. Very often it is then too late. So I hope that we shall see a more positive approach than we have had so far from the noble and learned Lord to the need for facilities for conciliation.
The amendment put down by the noble Lord, Lord McGregor, does not differ in substance, and certainly not in principle, from mine. Amendment No. 39 has

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the advantage of brevity perhaps, but I would not go the stake to resist Amendment No. 38 in order to achieve No. 39: neither, I suspect, would the noble Lord, Lord McGregor, strongly resist Amendment No. 39.
What we hope to get from the Government tonight is a positive statement rather than the somewhat nebulous, hesitant, tentative views that we have had expressed up till now on the need for conciliation as an important element in removing the bitterness, squalor, fighting and disharmony that the present system, with all the limitations that an adversarial system can provide, causing an addition to bitterness rather than the creation of harmony. I beg to move my amendment.
Lord Donaldson of Kingsbridge: If I may add one word, the Chinese, of course, were talking of reconciliation and we are talking about conciliation, but at a much later stage. However, there is a machinery which exists; there is a court welfare officer whose business it is to find out the facts from the parties and report to the judge. The judge then makes the decision on the report he is given.
What we are asking is that it should be made possible and to be made part of the normal practice for the judge, when he thinks fit and is presented with this report, to say to the welfare officer, "They seem to be within reach of one another: go back and see whether you can get them to agree." If that were to be made a part of the normal procedure in these cases where possible, I believe it would transform the atmosphere of the court, I believe that, even though this Bill does not allow us to discuss conciliation where it ought to be discussed, as the noble and learned Lord, Lord Denning, said ages earlier, it would, by bringing it in at this stage, where the discussion is primarily about details of property and things of that sort, be extremely helpful to the parties.
8.57 p.m.
Lord Mishcon: The noble and learned Lord the Lord Chancellor said very correctly in his Second Reading speech that it is a pretty good guiding principle to follow the recommendations of the Law Commission when you re trying to deal with an aspect of law reform. Obviously it was implied in that remark that you are dealing not only with very experienced and reliable people but also with people who have researched their subjects and taken a great deal of trouble before they make their recommendations. Therefore, one does not follow them, if I may say so, at one's peril as a rule. I wonder, therefore, whether I may be allowed to quote from page 6 of the Law Commission's report, Cmnd. 112, in order that we may know what it is that they recommend and how near that is to the amendment which has been put down in the name of my noble and learned friend and myself and also in exactly the same spirit in the other amendment with which we are dealing—that in the names of the noble Lords, Lord McGregor and Lord Donaldson. This is what the commission said:
"We believe that everything possible should be done to ensure that only those cases which necessarily require adjudication come before the courts for trial of contested issues, and that the legal system should be so structured as to encourage the parties to reach
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an informed agreement about the financial and other consequences of the breakdown of their marriage, and to dispel the illusion that recourse to hostile litigation can produce magical solutions to intractable problems".
Later on, there is a mention of the Bristol scheme and the work in Bristol to which my noble and learned friend has already referred.
There is no point either, if I may say so, in setting up a committee chaired by such an experienced judge in the type of cases that we are dealing with—and I am referring to Mrs. Justice Booth in that connection and also to the Matrimonial Causes Procedure Committee, which was set up at the instance of the noble and learned Lord. On page 3 of their consultation paper, which has only recently been issued, the following appears:
"In considering possible changes in the present procedures it has been a fundamental approach of the committee to suggest a process which would encourage the parties to reach their own agreements, albeit with the advice of their lawyers and with a clear understanding of what they are doing. It has also been fundamental to our thinking that they should be assisted in this by having available to them at an early stage a conciliation service".
As the Bill stands, it will now be possible for divorce to be obtained one year after marriage. It deals with other aspects where conduct will not, we hope, be one of the major matters to be investigated by the court, but nothing is provided for by way of rules of court for a conciliation procedure.
I speak as a practising solicitor when I say that, if the matter is left to the profession and to the profession alone, we are told all too often (although we have a professional duty to try to effect conciliation and reconciliation) when there is no room for a definite procedure by way of conciliation, "Don't you dare show any softness. If you show any softness to the other side, they will take it as weakness. Please proceed". Not all the persuasion in the world can take the place of what is laid down by way of procedure in our courts, perhaps assisted by voluntary bodies outside the courts, which make it an essential part of the proceedings. Your Lordships will not mind if conciliation is wasted in 50 per cent. of cases. Your Lordships will regard it as a triumph if conciliation succeeds in a small number of cases in making agreement take the place of a fight and reconciliation, for the sake of the children of a marriage, take the place of divorce.
If there is no place in the Bill for the family court procedure, let us not miss the conciliation procedure—not laid down in any fixed, inflexible way but laid down by way of provision for rules of court which say that one of the steps in proceedings will be the conciliation procedure to find out whether conciliation can succeed and a battle can be avoided. I very much hope that these two amendments will commend themselves not only to the Committee but to the noble and learned Lord the Lord Chancellor.
9.5 p.m.
The Lord Chancellor: The noble Lord, Lord Mishcon, overstates what is admittedly a good case. He began, I believe, by quoting the exact words of the Law Commission report, but, in case he did not, I shall repeat them:
"The availability and scope of conciliation in similar services should be systematically investigated. Everything possible should be done to encourage recourse to conciliation rather than litigation.".

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That is exactly what I have done. I appointed the committee under Mrs. Justice Booth to do exactly what the Law Commission had recommended; namely, thoroughly to investigate, with a view to encouragement, the possibility of conciliation. That is what they have provided for in their consultative paper: that in every case there should be an initial hearing before the registrar of the court at which the issues may be crystallised and the registrar may, if appropriate—I repeat, "if appropriate"—refer the parties immediately to conciliation then and there. That is the proposal in the consultative paper of Mrs. Justice Booth, whose committee was set up by me, in response to the recommendation I made.
That is, of course, not the same as either of these two amendments. The consultative paper has only just gone out, so we do not know what the response to it may be. It may be that the response will be more positive or less positive than that of Mrs. Justice Booth, but I shall follow the consultative paper and say that we want a response to it, if appropriate. Both of the amendments provide, (without thoroughly investigating anything, as the Law Commission recommended) for compulsion. The difference between the two is that the amendment in the name of the noble Lord, Lord McGregor of Durris, would provide, by rules of court, for compulsory attendance at court by the parties, for consideration to be given to a conciliation appointment. The amendment in the names of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, would compel the parties to go through the conciliation procedure in every case. What is certain is that even the most committed conciliators—and perhaps, in a sense, I am one—recognise that there are a very great number of cases in which conciliation is simply not worth trying.
The noble and learned Lord, Lord Elwyn-Jones, referred to his experiences in China. I did not think that it was at all frivolous to do so; it was a moving and rather striking little episode in his career. I am not sure that I have reached the chapter in his autobiography which deals with it. But, as the noble Lord, Lord Donaldson, pointed out, those parties were trying to effect a reconciliation.
There is a moral in that, too, because we went through all this in 1969. When we started, the original proposition was that spouses should have to go through reconciliation procedures such as that in China before a divorce case could proceed. In the end it was found that a more realistic view—now contained in Section 6 of the principal Act—was that the solicitor should certify whether or not he had discussed reconciliation with his clients.
I am bound to say, and I hope that I am not getting cynical in my old age, that I have always rather considered reconciliation as a desirable thing which happens sometimes but not very often in my experience. I heard of a case last week in which one couple had been married three times and reconciled twice after two divorce proceedings. So while there is life there is hope; they died married. A happy ending to a troubled story.
I have always thought that, in a sense, those who advocate reconciliation tend to be persons who want to salve their conscience for touching the dirty business of divorce at all. We want reconciliation to happen—
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of course we do if it is a genuine reconciliation. But what we are talking about in these two amendments is conciliation; the desire that, when parties find their marriage has broken down irretrievably, they should recognise that acrimony and bitterness are not necessarily in the interests of either—that there are questions about children, about money, about objects, and about property shared happily between them while the marriage subsisted which are far better discussed rationally, in a civilised manner and without passion, unless passion is so deep that it cannot be avoided.
Although I recognised as a practising lawyer—as I suppose I was, although it is more than 10 years ago now that there are many charges levelled against us, I always tried to keep on good terms with my opponent. I thought it was in the interests of my client to do so. I recognised that they did not always like to see me calling my opponent by his Christian name or possibly lunching with him at the same table, but the fact was that my client's interests were often being advanced much more rationally than he would have liked me to advance them in court by insulting his witnesses or shouting at my opponent across the court.
The first line of defence must be responsible and rational members of the profession. I believe nonetheless in the conciliation procedure. I believe that I have taken the right course by setting up the Booth Committee. I liked their consultative paper in the first instance. I received a most powerful and, I believe, all-party deputation from my noble friend Lady Faithfull last week, and I hope I satisfied them that I genuinely meant what I said; that, although I was under the same constraints as any other Minister in respect of getting money and resources, I believed in conciliation and wanted to see it succeed. I believe the way forward is through the Booth Committee. The idea that I should have put something in the Bill when nothing in the Bill was necessary and that I can proceed either by rules of court or by administrative methods is a misconceived one.
I hope that I have said enough to persuade both the noble Lord, Lord McGregor of Durris, and the noble Lords who sponsored the official Opposition amendment that I genuinely believe in the procedure and I want to make progress. But I do not believe that the Bill can be improved by the introduction of compulsory attendance or a compulsory procedure, according to which of the two alternatives one takes. I do not believe the Bill would be improved by either, but I hope that neither the noble Lord, Lord McGregor of Durris nor the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, will feel that I am at all hostile to the general drift of what they have been saying.
Baroness Birk: Following upon what the noble and learned Lord has just said, I can see why he dislikes the compulsory form of conciliation but, as he himself pointed out, it is very different from reconciliation. We are talking here about the results of divorce proceedings—which are by then a little more removed—and the question of children. I fail to be convinced by the noble and learned Lord's argument that there should not be a statutory provision. If people refuse to meet, no one will physically drag them together.

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If we look back at the arguments made against the original sex discrimination Bills and racial discrimination Bills, we find that they were exactly the same—that one should not bring statutory work into it. However, they both proceeded to lay the foundation on which very much better relationships have been built.
The Lord Chancellor: I do not think I am really briefed at this late hour to draw an analogy between matrimonial proceedings and the Race Discrimination Act. I think this is carrying things rather far. All I do say is that Mrs. Justice Booth made the proposal in the consultative paper which I think should be given a fair run, and that says "if appropriate", which excludes compulsion.
Lord McGregor of Durris: In view of the sympathetic response of the noble and learned Lord the Lord Chancellor, and in view of the expectations that we may have of the report of the Booth Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 39:
After Clause 37, insert the following new Clause—
("Conciliation procedures
Provision shall be made by rules of court to establish conciliation procedures and to require parties to any proceedings for divorce to enter into such procedures; and the court may adjourn proceedings until solicitors acting for the parties have certified that such procedures have been undertaken.")
The noble and learned Lord said: I, too, have noted the friendly words in regard to the concept of conciliation that have fallen from the noble and learned Lord the Lord Chancellor, but I wonder whether we can take him a little further. The amendment in the name of my noble friend Mr. Mishcon and myself is an extremely modest one—
"Provision shall be made by rules of court to establish conciliation procedures".
There does not seems to be any dispute between the noble and learned Lord and myself about the need for conciliation procedures, or indeed the requirement that steps should be taken to endeavour to achieve conciliation between the parties.
However, what I think is important in the light of what the noble and learned Lord has said is this. To what extent is he willing to accept whatever recommendations may fall from the committee under the chairmanship of Mrs. Justice Booth. They have already given an indication in their working party report:
"It has been fundamental to our thinking that they should be assisted"—
that is to say, the litigants, I think—
"by having available to them at an early stage a conciliation service".
It is right that I should read the rest. It goes on:
"but it must not be forgotten that divorce is a question of legal status and that husband and wife have legal rights and obligations. It is in this context that the lawyer advises his client. It is outside our terms of reference to consider whether matrimonial suits and matters relating to them should cease to be within the framework of the English legal system."
We do not ask for that; it must be within the
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framework of the English legal system. But the availability at an early stage of a conciliation service has already been recommended, as I understand it, by the Matrimonial Causes Procedure Committee. I cannot ask the noble and learned Lord to say in advance, "Of course I accept every recommendation, every jot and tittle of what emerges". But may we take it from what he has said that he is disposed to give a fair wind to what recommendations will emerge from this committee that he has appointed?
The Lord Chancellor: I do not think I can do more than say that I shall start with a prejudice in their favour. What they did recommend in their consultation paper was this. There was a provisional recommendation that in every case there should be an initial hearing before the registrar at which the issues may be crystallised and the registrar may, if appropriate, refer the parties to immediate conciliation then and there. That is so far as they went, and I think we must see what reaction that takes and what they make of the reaction after the consultation is complete. But I shall, naturally, start with a prejudice in favour of the committee that I myself set up, even if it is not a golden image.
Lord Elwyn-Jones: This matter and this exchange has gone on the record, and we shall wait with hope now for when the report comes. Indeed, if I may say so, without seeking to prejudice the decisions of the relevant committee, I hope that they, too, will read in advance what the noble and learned Lord has said that may give them strength to proceed on the road of conciliation. In the circumstances I do not move my amendment.
The Deputy Chairman of Committees (Viscount Simon): I must apologise to the Committee. After Amendment No. 38 was withdrawn I should have moved, That Clauses 35, 36 and 37 stand part of the Bill. I had not appreciated that this amendment was to a different clause. I first move that Clauses 35, 36 and 37 stand part of the Bill.
Clauses 35 to 37 agreed to.
[Amendment No. 39 not moved.]
Schedule 1 [Minor and consequential amendments]:
9.20 p.m.
Baroness David Baroness David moved Amendment No. 40:
Page 33, line 1, at end insert—
(" . In section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978—

(a) in subsection (1) after the words "on the ground that" there shall be added the words "the applicant or";

(b) in subsections (1), (3) and (5) before the words "the respondent", wherever those words appear, there shall be added the words "the applicant or";

(c) in subsection (2) for the words "the applicant", wherever those words appear, there shall be substituted the words "the other party"; and

(d) in subsection (4) at the end there shall be added the words "save that an order made under this section may be backdated to the date of the application under section 2 of this Act.".").

The noble Baroness said: For this very last amendment of the Committee stage your Lordships have a new voice, a slightly different theme and, I

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hope, perhaps a new response, because I think that the noble and learned Lord the Lord Chancellor has not agreed to a single amendment as yet, although he has said he will look at and consider a great many.
I hope this is a non-controversial amendment. It is a tightening up amendment, and I hope it will take very little time to persuade the noble and learned Lord to agree to it. I was asked by a very experienced family law solicitor, who I know and respect and have seen in action in the domestic court, whether I would propose this amendment to the Bill. This solicitor was indirectly responsible for Section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978 being enacted. Her experience during the period since that Act came into operation in February 1981 shows that its usefulness could be improved by the minor amendment now proposed.
The provisions of Section 6 enable either party to a marriage to obtain from the magistrates' court a consent order that the other party make agreed financial provision for the applicant and the children of the family. It avoids the need for a consent order to be part of proceedings in judicial separation or divorce. It is particularly useful where the parties have separated but have not yet been apart for two years. A court order enables the party who is paying maintenance to claim certain tax relief. This can be important where one income is being stretched to cover two households. Under Section 6 as it now stands, the party who is to make the agreed payments cannot apply for an order that he should make the payments. I hope your Lordships will understand that "he" may be "she", and vice versa.
The section allows for applications only if the other party makes the payments. A husband should be able to apply for an order when he is making agreed payments. His wife may not bother to take proceedings simply to help her estranged husband with tax relief. In the amendment, paragraphs (a), (b) and (c) are all intended to enable the party who is making the agreed payments to apply for a court order as well as, of course, retaining the right of the other party to do so. Paragraph (d) in the amendment is to bring the position in the magistrates' courts into line with normal practice in the divorce county courts. If adopted, the amendment would enable the magistrates' court to backdate this order to the date of the original application under Section 2 in cases where an agreed Section 6 order is to be made after there has been a Section 2 application. I believe that this amendment will fit into Clause 38, and I hope that the noble and learned Lord will agree to it. I beg to move.
The Deputy Chairman of Committees: I am sorry; I must again apologise. Before I called this amendment I should have put to the Committee The Question, Whether Clauses 38, 39 and 40 shall stand part of the Bill? I put that Question now.
Clauses 38 to 40 agreed to.
The Lord Chancellor: Amendment No. 40 was tabled rather late. I think there is probably something in it, but I should like to consider it a little more carefully before Report stage. The noble Baroness is quite right in saying that Section 6 of the Domestic
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Proceedings and Magistrates' Courts Act 1978, which provides a means whereby the parties to a marriage which has run into difficulties can obtain the assistance of the courts in regulating their financial arrangements without having to parade those difficulties before the court, is drafted in such a way that the applicant is the party who will be the recipient of the proposed payments and not the payer of the proposed payments.
I would agree that at first sight this appears to be a formality and that the proposed amendment, although of limited practical difference, would perhaps be advantageous. As it stands, the provision enables the court to make a consent order in the case where the payer is neither present nor legally represented. In those circumstances. the court must receive sufficient evidence as provided by rules of court of the payer's consent to the making of the order and of his or her—but usually his—financial resources. The amendment would reverse this position by empowering the court to make an order in the absence of a payee or her or his legal representative.
I must reserve this: careful thought must be given to the effect of this and to the safeguards to the payee's position in these circumstances. But I am prepared to give careful consideration to this issue and the points made in support of it. I am grateful to the noble Baroness for having brought the matter to my attention. I hope that she will withdraw the amendment, but with what I hope will be a fairly reasonable response from the Government.
Lord Elwyn-Jones: My Lords, before my noble friend Lady David speaks, I owe my noble friend Lord Mishcon an apology. It appears that in a mood of enthusiasm I called him "Mr. Mishcon". We all know perfectly well that he has been nothing but a distinguished adornment to this noble House since he was elevated to the peerage. I do apologise. I do not know what I can do about my mistake. I shall wear sackcloth and ashes for the next sitting of the House.
The Lord Chancellor: The noble and learned Lord. Lord Elwyn-Jones, may console himself with the fact that I received from a colleague a letter saying that he had circulated his letter—which was addressed to another member of the Government—to "Quintin Hogg".
Baroness David: My Lords, I thank the noble and learned Lord the Lord Chancellor for what I consider to be quite a favourable response. However, according to the original amendment, it was first printed on 6th December. It was not really a last minute amendment. I do not apologise for it being near the end. It was put down at quite a reasonable time. I am pleased with the response of the noble and learned Lord, which I think is fairly favourable. I shall look forward perhaps to a more technically correct amendment being put down by the Government at the next stage of the Bill. I therefore beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Remaining schedules agreed to.
House resumed: Bill reported without amendment.
House adjourned at twenty-nine minutes past nine o'clock.