HL Deb 12 December 1983 vol 446 cc11-26

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 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, 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 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 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 …". 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 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.

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 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 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 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.

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 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


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 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.

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.
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.
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.

Back to