HL Deb 12 December 1983 vol 446 cc35-64

4.52 p.m.

Committee stage resumed on Clause 3.

[Amendment No. 11 not moved.]

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Amendment, by leave, withdrawn.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 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 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 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.

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 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 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).

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 …

  1. (a) the financial needs of the child;
  2. (b) the income, earning capacity … of the child;
  3. (c) any physical or mental disability of the child;
  4. (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. 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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.

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 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. 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 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 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 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 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 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:

  1. (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.
  2. (b) The variation shall take effect on each anniversary of the making of the order.
  3. (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.
  4. (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.
  5. (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 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 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 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 moved Amendment No. 37:

After Clause 8, insert the following new clause:

("Information on children's maintenance costs.


  1. (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. (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.