Lords Sitting of 21 November 1983

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

World Cup Soccer Tournament 1990
Lord Gainford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are taking steps to persuade the organisers that the 1990 World Cup Soccer Tournament should be played in Great Britain.
Lord Skelmersdale: My Lords, the world governing body of football—FIFA—has asked national football associations to bid for the 1990 World Cup. It is understood that England, Greece, Italy and the USSR are in the running, and it is for the English Football Association to pursue with FIFA its bid to host the 1990 World Cup. FIFA regulations determine that the finals must be held in one member country, and therefore the term "Great Britain" is inappropriate as the tournament cannot be staged in more than one of the home countries.
Lord Gainford: My Lords, I thank my noble friend for that Answer. Is it not possible to go ahead, considering the advantages to tourism, employment and also for the benefit of our telecommunications systems?
Lord Skelmersdale: My Lords, of course my noble friend is quite right. Indeed the 1966 World Cup—the finals of which were played here—gave English soccer a great boost. I should remind the House that we won that competition as well as hosting it. Of course this boost would come to all the various industries involved, including tourism. But I should point out to
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my noble friend that the soccer bodies generally would deem it inappropriate if there were direct Government sponsorship at this stage.
Lord Shinwell: My Lords, although I may not be here when this event takes place—I shall do my best—can the noble Lord give an assurance that if any of the matches are played in Great Britain the spectators from England, Scotland, Ireland and Wales will behave themselves?
Lord Skelmersdale: My Lords, regretfully, speaking as a member of the Government, I can only say that the full force of the law will he brought to bear upon them if they misbehave; but I am afraid I cannot give the assurance sought, much as I should like to.
Lord Graham of Edmonton: My Lords, will the Minister not acknowledge that one of the best ways of persuading the authorities to bring the World Cup to this country is to do what the Labour Government did in 1966, which was to make funds available which were then used for the improvement of grounds? Is the Minister not prepared, even though there may be the kind of technical problems to which he referred, to recognise the glorious opportunity which having the World Cup here would be? As the noble Lord, Lord Gainford, said, there would be spin-offs which would benefit not only industry but the millions of people who look forward to repeating not merely the experience of 1966 but I hope the victory of 1966 as well.
Lord Skelmersdale: Yes, my Lords, I quite agree. But I think I am right in saying that so far as the 1966 World Cup was concerned these guarantees were given after the successful application to FIFA. This is exactly what we intend to follow should our application be successful in this instance.
Lord Molloy: My Lords, will the noble Lord the Minister be prepared, in support of Lord Gainford's submission of this question, first of all to substitute "England, Wales, Scotland and Northern Ireland" for "Great Britain"? Secondly, would he be prepared, even at this early stage—because these things take such a long time—to discuss the issues raised by the noble Lords, Lord Graham and Lord Gainford, with the FA,

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so that at least we shall then be properly prepared, and if any of our four countries get to the finals we shall have done the preparatory work, thanks to Lord Gainford's Question?
Lord Skelmersdale: My Lords, I have already answered the noble Lord, Lord Graham, on the point that he raised, and I have said that should we be successful I do not see any difficulty on the Government's side in giving guarantees on matters like transportation, immigration and security. In my original Answer I pointed out that it is for one of the home countries to apply, in which case it is either England, Scotland or Wales; I am told there is also a national body representing football in Northern Ireland. Nevertheless, obviously all true fans are always welcome at football matches wherever they are held.
The Lord Bishop of Norwich: My Lords, in the light of that answer from the Minister, may I ask him whether he is aware that England has the highest concentration of first division top class football grounds in the world? Norwich City, for instance, comes to mind. Is the noble Lord aware that it so happens that the first rate, first division clubs are all close to main line stations, which would help tremendously with our tourism and our trade? Is he also aware that friendly neighbourhood policemen constantly patrol between the stations and the grounds and know those routes, and therefore would be able to take care of hospitality to excitable foreign fans?
Lord Skelmersdale: My Lords, I am very grateful to the right reverend Prelate. The real problem is not that the grounds are not there, not that the very excellent teams are not there, not that transportation is not there, but that there is a mammoth crowd control problem in this country. There is no problem with reputable fans, but it is with what I might describe as the outsiders, who very often do not even bother to go to matches themselves. They are the ones who cause the problem and cause us all concern.
Lord Leatherland: My Lords, may I ask whether the Government, when they have finished interesting themselves in football, will take a little interest in the unemployed?
Lord Skelmersdale: My Lords, that is a totally different question, but of course we regularly take great interest in the unemployed.
Lord Fletcher: My Lords, will the Minister give an assurance, in case the competition is held here in 1990, that the Government will take steps between now and 1990—and tell us what those steps are—to ensure that there is a reduction in the unruly behaviour that now takes place in so many football grounds?
Lord Skelmersdale: My Lords, again that is a slightly different question, but as I have been at pains to stress throughout my answers this afternoon, we are absolutely determined that where law breaking occurs the law breakers should face the full panoply of the law.

EC Citizens: Medical Treatment in U.K.
2.43 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many citizens of EC member states were referred to this country for medical treatment from June 1979 to the present day.
Baroness Trumpington: My Lords, since the beginning of 1979 some 1,100 patients have been referred here under the Community regulations. This figure does not include private patients.
Baroness Lane-Fox: My Lords, in thanking my noble friend for that interesting, although perhaps slightly disconcerting reply, can she say whether the Government are entirely satisfied with the existing reciprocal provisions for health available to British travellers in EC countries?
Baroness Trumpington: My Lords, in answering my noble friend, I am not quite sure why she is bewildered, because it is a tribute to the National Health Service, and in particular to its specialist services, that it attracts so many referrals. With regard to the second point concerning reciprocal arrangements, I believe that about 20 patients a year from this country have gone abroad for treatment.
Lord Wallace of Coslany: My Lords, is the noble Baroness aware that I just do not understand the noble Baroness, Lady Lane-Fox, being somewhat disconcerted by the reply? It is a good thing that people can come to Britain for treatment just as much as people can go to EC countries for treatment. The noble Baroness, Lady Trumpington, said that about 20 cases a year had been referred to EC countries for treatment. Can she give the figure for the number of people treated on holiday due to accidents and the many other causes?
Baroness Trumpington: My Lords, referring back to the other question, it is slightly over 20 cases each year—a total of about 120 in the period covered by the Question; that is, since 1979. With regard to the second part of the noble Lord's question: no, I cannot.
Lord Paget of Northampton: My Lords, surely referrals occur because the treatment cannot be obtained in the home countries. It is a tremendous tribute to our National Health Service that it is so widely desired.
Baroness Trumpington: My Lords, I do not think that there was a questions there. but I have already paid tribute to our National Health Service.
Lord Molloy: My Lords, can the noble Baroness answer one question, if not now then by either writing to me or publishing an answer in Hansard? The principle of reciprocity started in the Council of Europe with about 10 or 11 countries, from which it has since grown as this country has joined the EC, and

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now stretches into some states of America. That shows that this is possibly another great aspect of our NHS, as the noble Baroness rightly said, and it shows a behaviour amongst mankind of which we have never seen the like before. Can the noble Baroness please supply the actual percentage statistics?
Baroness Trumpington: My Lords, may I ask the noble Lord: the percentage statistics of what?
Lord Molloy: My Lords, in the reciprocity agreement some illnesses are not reciprocal. Will the noble Baroness take on board that the degree of reciprocity varies from country to country because it excludes certainillnesses, but generally no accidents—are they all included?
Baroness Trumpington: My Lords, the original Question referred to the EC. The United States and other countries outside the EC do not come into this particular Question.
Lord Leatherland: My Lords, as the Government are closing down a large number of hospitals in this country, will our hospitals be able to continue taking in these overseas patients?
Baroness Trumpington: My Lords, certainly they will, because in no case do they jump the National Health Service queues. When people wish to come to this country for treatment they have to wait their turn.
Baroness Lane-Fox: My Lords, may I ask whether my, noble friend is aware that I was slightly disconcerted about her original Answer because I felt we ought to be absolutely sure that, as such a large number of people are coming from abroad to this country, the reciprocal arrangements are all right for our visitors going overseas? Further, may I also ask whether disabled travellers from this country to EC countries are able to get the same equipment and amenities that disabled patients who visit this country from the EC can obtain?
Baroness Trumpington: My Lords, with regard to the first part of the question, 1,100 people since 1979 does not seem to me to be a vast number. With regard to the second part, that is another question which I shall be delighted to answer if my noble friend can table it on another occasion.
Lord Wallace of Coslany: My Lords, I have one further question for the noble Baroness, and I am sure she will not mind answering. There is a very important point on EC agreements. Before anyone proceeds abroad from this country a somewhat complicated form must be completed. Does the noble Baroness agree that that must be stressed?
Baroness Trumpington: My Lords, if a patient arrives without the necessary form, the department's advice to hospitals is to charge the patient as an overseas visitor but that the cost should be refunded if the form is subsequently received.

West Midlands College of Higher Education
2.50 p.m.
Lord Graham of Edmonton: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the future of the West Midlands College of Higher Education.
The Earl of Swinton: My Lords, the provision to be made in 1984–85 for the West Midlands College of Higher Education and elsewhere in the local authority sector of higher education is currently being considered by the National Advisory Body for Local Authority Higher Education (the NAB)—the body set up by my right honourable friend the Secretary of State for Education and Science to advise him on such matters. The NAB's recommendations have still to be submitted to my right honourable friend, and it will be a little time yet before final decisions are announced.
Lord Graham of Edmonton: My Lords, will the Minister acknowledge that the recommendations of the NAB to wipe out the three degree courses were received with astonishment, anger and dismay not merely by the college and its students but throughout the West Midlands? Does the Minister appreciate that when the courses were conceived as a vocationally relevant package for the 1980s they were approved not only by the authority but by HMIs and the Department of Education and Science? Will the Government recognise and take fully on board the potential knock-on consequences of the action? Will they recognise that not only should these relevant courses of quality he maintained but the future of the college in this difficult area of the country also ought to be secured? Will the Minister use his best endeavours to make sure that the case that I am attempting to make is borne heavily in mind when the future of the college is being considered?
The Earl of Swinton: My Lords, as I said in my original Answer to the noble Lord's Question, the NAB's proposals have not yet been submitted to my right honourable friend the Secretary of State for Education and Science. If the NAB's eventual advice to my right honourable friend is that the diversified courses of the college should be withdrawn, he will need to consider the proposal, not only on its own merits but also in relation to its impact on the institution as a whole. I agree that he will need to reach a judge ment on the prospects of the college continuing as an institution devoted exclusively to teacher training. If those prospects do not appear favourable, the NAB's proposals will have to be weighed against the possible loss of this college's contribution to teacher education. However, as I have said, we are not yet at that stage. I also understand that there has been considerable lobbying on behalf of the college, which has been brought to the attention of my right honourable friend. I shall make sure that he also reads what has been said in this House today.
Baroness David: My Lords, does the Minister know that in the magazine Education this week it is said that Her Majesty's Inspectors admitted to the paper that they had made a tragic mistake in backing the closure of these courses at the West Midlands College? Is he willing to make representations to the Secretary of State and others who will make the final decision to bear that fact in mind, as it seems extremely important?
The Earl of Swinton:Yes, my Lords. I have not in fact read the article, but, as I have said, the NAB has not yet produced it proposals. I am sure that when it does all these things will he taken into account.

Youth Training and Social Benefits
2.53 p.m.
Baroness David: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many young people have had their benefit or supplementary benefit withheld as a result of refusing or failing to avail themselves of an opportunity of receiving training of the youth training scheme.
Baroness Trumpington: My Lords, the scheme has not yet been running long enough for the numbers of young people refusing courses to be known. Quarterly records are being kept of the numbers of reported refusals and premature terminations and some information about these cases should be available early in 1984.
Baroness David: My Lords, do I assume from the noble Baroness's reply that some young people are being reported for failing to take up places on the youth training scheme and also that there are some so-called premature terminations? Will the noble Baroness perhaps be kind enough to find a different word for this, as "premature termination" is not a very suitable description for people who come off the courses? Will she tell her Ministers that the careers officers are finding it very unpleasant to be involved in peaching on their clients when they are supposed to work by co-ordination rather than coercion?
Baroness Trumpington: My Lords, the expression "premature termination" sounds as if it would be better used in a totally different context. With regard to the other part of the noble Baroness's question, there is nothing new about benefit penalties on refusal of suitable training or employment. The rules are based on legislation which has applied for many years. The youth training scheme is recognised as approved training for the purposes of Section 20 of the Social Security Act 1975. We see no reason for making exemptions. Careers officers do of course aim to ensure that offers of training are suitable for particular individuals. If they find that an opportunity of suitable training has been refused without good cause they ought to report the facts to the benefit adjudicating authorities, as they have always done in respect of refusal of suitable employment.
Baroness Jeger: My Lords, can the noble Baroness say whether she has had time to look at the last report of the Social Security Advisory Committee which suggested that young disabled people should have special consideration and that perhaps the cut-off should not be applied so strictly to disabled young people who may have greater difficulties in getting a job? What appeal do these young people have if they feel that they have reasonably refused a job?
Baroness Trumpington: My Lords, I am aware of the disabled cause. I believe that that is being looked into. As I am not certain of this and should hate to mislead the House, I shall confirm that in writing to the noble Baroness. I take it that the second point in her question is whether there is any point in training unwilling people.
Baroness Jeger: My Lords, if a young person feels that he or she has reasonably refused a job, what appeal does he or she have against the decision?
Baroness Trumpington: My Lords, I beg the noble Baroness's pardon. They have recourse to appeal, as in every other case of that kind. They certainly can appeal.
Lord Avebury: My Lords, when the facts are reported to the benefit authorities, both in the case of refusal to take up a place on a scheme and premature termination, as the noble Baroness says that they sometimes are, is a copy of the notice that is sent to the benefit authorities served on the claimant so that he or she knows what case is made against him or her and can therefore properly present a case before the tribunal?
Baroness Trumpington: My Lords, I am afraid that I shall have to let the noble Lord know about that.
Lord Kilmarnock: My Lords, can the noble Baroness tell the House whether the Manpower Services Commission has made a study of the reasons for poor take-up of the scheme in certain areas? May not failure to take up or stick to a course be due to some inadequacy in the design of the scheme?
Baroness Trumpington: My Lords, I think that I included that point in my original Answer. The take-up of places is increasing by leaps and bounds.
Lord McCarthy: My Lords, may I press the noble Baroness on this? The last information that we had in the House was given on 2nd November and it was that the rate of take-up was about 50 per cent. of the numbers required in a full year—that is to say, 240,000 when what is required is 460,000. This is a rather low rate of take-up. If it is to be further detracted from by refusals and premature terminations, what will happen to the youth training scheme?
Baroness Trumpington: My Lords, as I have already said, the figures have gone up since the last notification of figures. The youth training scheme is on its way to being the success that it deserves to be. The numbers joining it are growing all the time. I think that by

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Christmas there should be promises of places for all the numbers eligible.
Baroness David: My Lords, may I ask the Minister to tell the other Ministers involved that the careers officers are worried that form UB86Y, which has to be used by those young people who have prematurely terminated their courses, is extremely complicated and difficult to fill in for those not particularly bright in the head? Can something a little simpler be produced for them?
Baroness Trumpington: My Lords, I am interested in the point which the noble Baroness raises, which shall certainly pass on.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Bellwin will, with the leave of the House, repeat in the form of a Statement an Answer being made to a Private Notice Question in another place on the operations of British Nuclear Fuels Limited at Sellafield.
This will be followed by my noble friend Lord Mansfield, who will, with the leave of the House, repeat a Statement on the shootings in County Armagh.

Oil Taxation Bill
3 p.m.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, I beg to move that this Bill be now read a second time. In his Budget this spring, my right honourable friend the then Chancellor of the Exchequer introduced a number of measures relating to the way oil producing companies are taxed. Most of these measures were enacted in the first of this year's Finance Acts. Another main element of the package, the abolition of royalties for certain fields, is contained in the Petroleum Royalties (Relief) Bill, to which your Lordships gave a Second Reading last Thursday. The Oil Taxation Bill now before your Lordships completes this package of measures on the oil industry.
This year's Budget package was designed to provide incentives to develop future free-standing fields, and to encourage further exploration and appraisal. I am happy to say that the industry has welcomed these measures. More than that, there has been clear evidence that companies are reconsidering projects which they had previously put aside as uneconomic. I know that my right honourable friend the Secretary of State for Energy has been much encouraged by the number of development applications approved or under consideration. In our view, if the tax system properly takes account of changing oil field economics, private enterprise may be relied on to see to it that oil and gas resources are developed.
I now turn to the Bill before your Lordships. As I have said, this completes the package of oil industry measures which we have introduced this year. It relaxes the rules for petroleum revenue tax relief for
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expenditure on assets with shared use, such as pipelines. Partly as a corollary to giving full relief, it also charges related receipts, such as pipeline tariffs, to PRT. Before I say more about what it does, I should like to remind your Lordships of why changes in this area were necessary.
I say "remind" for I am sure that your Lordships will recall that as long ago as May 1982 we issued a consultative document on this subject. It described in detail how the scene in the North Sea was changing, and why it was necessary to reconsider the way in which PRT relief is given for expenditure on long-term assets. The issue of the document made possible a process of consultation which, while inevitably quite lengthy, has been wholly beneficial. In the Bill before your Lordships we are implementing the proposals in the consultative document in the light of the discussions that we have had with the industry, and we have filled them out in great detail to cater for the many permutations of circumstances which exist in the North Sea.
Projects for the development of oil and gas fields in the North Sea involve very large front-end outlays before any significant income arises. Each of the earlier field developments had generally involved a more or less complete dedicated production system. Alternatively, these facilities had been shared between, say, two fields from the outset. That pattern of development was reflected quite directly in the existing PRT structure. PRT is charged separately on each field, and it allows for each field full front-end loaded relief for the assets dedicated wholly to that field.
The indications were, however, that this pattern of development would change significantly over the next few years. There were two reasons for expecting this. First, there is by now a substantial "infrastructure" of assets of the kind that I have described already in place in the North Sea and on land; that is to say, platforms, pipelines, and shore facilities. These facilities were built to a size to serve relatively large first-generation United Kingdom fields. But the profile of field production is characteristically such that many of these assets are already, or will soon be, under-used in the service of the fields for which they were first built. They will have spare capacity to take on oil and gas from other fields.
Secondly, it is generally expected that the next generation of North Sea fields will be smaller than the first generation. Also, they will often be found reasonably close to the "infrastructure" of assets already in place. Some of these new fields may be more productive in resource terms if they use existing assets, rather than use purpose-built facilities of their own; others may indeed be quite uneconomic to develop unless they can do so.
We needed also to consider the case even where no existing assets are available to be shared in the way that I have described. Here, new assets will be needed, but it may well be advantageous to develop these new assets in a way which maximises the potential for them to be shared with other fields later in the life of the assets. It was generally acknowledged that these trends in development were clear, and it was becoming increasingly important that the tax system should support the trends rather than discourage them or stand in their way.

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But the latter is precisely what the existing rules for giving relief for expenditure on the assets involved do, where there is any question of their being shared with a third party's field. Relief is given under one or other of two rules. As the law stands, if the proportion of use by a third party can be estimated, relief for the necessarily costly expenditure on long-term assets is restricted by that proportion. If full relief has already been given before any question of use by a third party arises, then some of it is clawed back. But it may well not be possible to estimate the extent to which third parties will use an asset. Where that is the case, under existing law the expenditure has to be spread over the life of the asset and a proportion allowed period by period. A switch to this basis could cost the industry some hundreds of millions of pounds on existing assets alone, only part of which would be restored later, and then possibly over a long period of years. And where any new development had to be put onto this method from the start it could well be discouraged. That is why we have had to introduce the Bill before your Lordships. In most cases the provisions in this Bill will remove both the existing rules so that third party use is no longer a ground for restricting relief; full relief will he available from the start. In ordinary circumstances, there will be no possibility of its being lost.
The consultative document also proposed to charge incidental receipts, such as tariff income or sales proceeds, where they are attributable to the assets which are being given this more favourable relief treatment. The Bill also achieves this. Now that we are giving full relief for an asset irrespective of whether it is used by a third party, it is reasonable to take receipts into account. In any case it is also anomalous that tariffs received by the owner of an asset for the use of his pipeline are not liable to PRT in his hands, although they are allowable PRT expense for the field which pays for them.
But, although it is right that they should be charged, we have had regard to the possibility, which was raised with us by the oil industry, that the new charge would drive up tariffs to an extent which would make certain small fields that would be asked to pay them uneconomic to work. It would be quite wrong to proceed on the assumption that the level of tariffs is set only by the tax system. Commercial factors—for example. what the market will bear—are very important. But tax plays a part, and its was partly for this reason that, following the consultation process that I have described, in addition to the increased relief for the relevant expenditure on the tariffed assets, the Government proposed a tariff receipts allowance, and set it at a generous level.
Perhaps I should draw your attention to one matter which was announced in the May 1982 consultative document, but which was not included in the spring Finance Bill. This is the extension of the charge on receipts to those relating to fixed assets in our territory, or on our sector of the continental shelf, which are owned by licensees of overseas oil fields. We did in fact give notice of our intentions in this respect last April in a parliamentary Answer by my honourable friend the then Minister of State to the Treasury. Foreign oil-producers are on a similar footing to our own oil-producers, and it is clearly right that any receipts
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generated by the United Kingdom use accruing to assets in United Kingdom waters should come within the same taxing scope for petroleum revenue tax as applies to our own producers, as indeed they already do for corporation tax. There have been discussions at official level with the country which could be affected in the near future—that is, Norway—to ensure that any double taxation is relieved.
This is a long Bill, and its provisions are long and complex. That is because the situations for which they have to provide are many and complex. But I have explained to your Lordships why the Bill is needed and what are its main purposes and effects. These are relatively straightforward and I think not in any way controversial. I commend the Bill to your Lordships with confidence. My Lords, I beg to move.
Moved, That the Bill be now read a second time—(Lord Glenarthur.)
3.10 p.m.
Lord Stoddart of Swindon: My Lords, I feel sure that the House will wish to thank the Minister for the lucid manner in which he has described a very complicated Bill, and for the fact that he has done so in a very short time. Since North Sea oil is so crucial to this country's economy at present and will remain so for a long period ahead, it is always tempting, when the slightest opportunity arises, to discuss the subject on the widest possible basis—for example, to discuss depletion policy, the use to which oil revenues are put. the effect on our total economy and the planning for the time when North Sea oil runs out. These are all interesting and important subjects which ought to exercise the minds of your Lordships. I shall, however, resist the temptation today because it would take a long time. I feel sure that there will be another opportunity to discuss these matters.
The Bill, although very important, deals with a comparatively narrow area of oil taxation. The changes do not conflict with any fundamental principles, as was the case, for example, in the Petroleum Royalties (Relief) Bill, which obtained a Second Reading in your Lordships' House last Thursday. Over the past four years, there have been a large number of changes in the oil tax regime. Indeed, these changes have caused much frustration to the oil companies, who have felt that their need to undertake long-term planning has been sacrificed to the Government's desire to maximise their own revenue in the short term. However, the measures enacted in this year's Finance Bill together with the measures contained in this Bill are much more acceptable and bring hope of a more stable tax regime for the future. That will certainly be welcome to me, to the Opposition, and, indeed, to the oil companies.
The Bill, as I say, is a complex measure and the provisions within it are highly technical. However, the proposals are sensible and recognise the changing circumstances in regard to the future of North Sea oil development. It is highly likely that new developments will be smaller than existing ones and the need to cut costs will be a paramount consideration. It is essential that the Government remove any barriers in the way of the oil companies making the best possible use of

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existing and future assets, for, by so doing, they will encourage the development of the smaller fields.
The provision in the Bill for relief on shared and mobile assets will assist, particularly as proper safeguards are provided. The provisions are certainly acceptable and the Opposition will put no impediment in the way of the Bill, which should be passed with the minimum of delay.
Lord Glenarthur: My Lords, all I will say is that I am grateful to the noble Lord for his general welcome to the Bill.
On Question, Bill read a second time; Committee negatived.

Access to the Countryside (Northern Ireland) Order 1983
3.14 p.m.
The Parliamentary Under-Secretary of State, Department of Energy (The Earl of Avon): My Lords, I beg to move this order in the name of the my noble friend Lord Mansfield.
Moved, That the draft order laid before the House on 27th October be approved.—(The Earl of Avon.)
Lord Fitt: My Lords, in the absence of the noble Earl, Lord Mansfield, I take this opportunity to make a few remarks on the order. I had hoped that, on the occasion of my maiden intervention in the House, I should have been able to exude some confidence or express some hope for Northern Ireland in the future. However, the events of yesterday afternoon in County Armagh have determined otherwise. The happenings yesterday afternoon in a little church not far from the border in Northern Ireland will, I believe, have shocked and appalled every Member of this House. I myself, who have spent my lifetime in Northern Ireland, cannot yet fully understand what was the motivation of those who carried out such a brutal and callous murder of innocent people in a place of worship.
I had hoped last week that this order could have been moved and debated in a non-controversial manner. It deals with access to the countryside. Northern Ireland has a beautiful countryside, but the actions of those men yesterday have desecrated and defiled the very soil of the island of Ireland both North and South and have brought nothing but shame and degradation to the name of Ireland. I know that I shall have the support of the whole House in expressing my sympathy to the relatives of those who were so cruelly cut adrift from their loved ones in Northern Ireland.
I remember most vividly my maiden intervention in another place in 1966. Again, it was to highlight the awful state of society as it then was in Northern Ireland. Sadly, every day and every year has only led to an exacerbation of the awful situation as it then was. The events of yesterday, I believe were deliberately calculated to provoke a religious civil war in Northern Ireland. I believe that that was the deliberate and calculated intention. I can only make an appeal to those who are the target of that provocation not to fall into the trap that has been set for them.
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The order contains 56 articles and five schedules. It seems a very heavy order if it was designed solely to create legislation to allow people to pass along public highways in Northern Ireland. I am ever mindful of any, or all, of the powers that are at present used and that may be given to district councils in Northern Ireland. There is nothing that is not controversial, or that cannot be made controversial, in relation to district authorities in Northern Ireland.
I wonder whether the Minister has undertaken the required consultation with the district authorities. Has he sought and been given ideas, or been made aware of the attitudes of the various spokesmen within the Northern Ireland Assembly? As my noble friend, Lord Donaldson, who is here this afternoon, will be aware, however much we may deliberate in this House or in another place, the real place to discuss these issues as they affect people in Northern Ireland is in a political assembly in the city of Belfast which would take in the representative views of the whole community in Northern Ireland. I have repeatedly said throughout my life as a political representative that another place, and indeed this House, cannot be fully aware in exactly the same way as people elected to a local assembly where local political structures are created of all the issues as they relate to Northern Ireland.
Therefore, on looking at the 56 articles, I personally, having been a city representative, cannot see anything dreadfully controversial, but it may be that some of the rural Members from Northern Ireland will see something in this proposed legislation which I do not see. I would only ask the Minister when he is replying to tell us whether he has had the consultations which are so necessary with the local authorities and with the representatives of the Assembly.
I have risen to my feet this afternoon to speak on this Bill, but my real intention is to put on the record of this House the appalling tragedy which befell the people in Armagh last night and to emphasise the need for us, everyone in this House, to say to those who were responsible that, however devilish their deeds may be, they will not succeed in attaining their political aims.
3.21 p.m.
Lord Underhill: My Lords, I am certain that the whole House will have been pleased to hear the maiden speech of my noble friend Lord Fitt and will be pleased that he is with us in this House. I am certain that he will bring to the House added sincerity and conviction on the issues of Northern Ireland. I am sure that the whole House will pay tribute to his courage and to his conviction. Knowing his views on political and social matters I feel certain that the House will wish to hear my noble friend not only on Northern Ireland issues but on other matters as well. We thank him for his contribution this afternoon.
The order before us deals with very important matters; namely, the protection and maintenance of public rights of way and the public access to the countryside. As my noble friend Lord Fitt has said, the order comprises some 56 articles and four schedules. It is equivalent to a Bill, but because of the way in which we have to deal with legislation affecting Northern Ireland it cannot be amended. I note that the draft was considered by the Environment Committee of the

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Assembly and that a detailed report was presented to that body. As no amendments are possible there is no point in going into detail, but there are a number of questions and matters which I would like to raise with the Minister. I am only sorry that I was unable to give him prior notice of these matters, but some of my reading of the Assembly's report was only completed over the weekend.
Article 2 draws no distinction between footpaths for walkers only and bridle ways which are to be used by both walkers and horse riders. In fact, the definition of "public path" would appear to cover walkers, horse riders and cyclists. There is also reference to it in Article 20, and it would appear to me that there is not sufficient definition. Under Article 3(1) a district council is charged with the compilation and preservation of maps and records of public rights of way. I should like to ask the Minister: what is the situation if a council fails to act? What is the standing of these maps and records? Do they have a definitive and legal standing? They are the same type of provisions as in Part III of the Wildlife and Countryside Act. Nowhere is there any reference to the scale of the maps or to how the public rights of way shall be marked upon them. Nor is there any reference to these maps and records being available for public inspection. What is the position regarding existing rights of way and public footpaths? Will a current register be sufficient? Will that have legal backing or has there to be a separate notice and decision on each path and public right of way?
Under Article 7 there is no duty upon the district councils to enforce the provisions with regard to ploughing. County councils in England and Wales have to carry out certain enforcement duties. Article 12 deals with the compulsory powers for the creation of public paths. Should there be public pressure for a public path, but a district council considers otherwise, are there provisions for any persons to appeal, may be to the department? I cannot see any reference to this in Schedule 1.
As regards Article 19, do the provisions of Schedule 1 apply to the temporary closures and diversions? If not, what safeguards will there be? Article 21 deals with long distance paths. Is the Minister able to give any indication as to the type of bodies which may be consulted as provided for in paragraph (4)? Will guidance be given to district councils on the type of bodies that should be consulted? In those cases where a long distance path may traverse more than one district council, how will the co-ordination be arranged? Will appropriate bodies be consulted before decisions are taken?
It was clear from the evidence presented to the Environment Committee of the Assembly that there are questions being raised in Northern Ireland about the Ulster Way which I understand passes through 21 of the 26 district councils. Why is the Ulster Way Committee not to be retained? If that body is not to be retained, why is there not another suitable body for that purpose? That point is made very strongly in paragraph 8 on page 8 of the Assembly's report. It is also advocated by the Sports Council of Northern Ireland, the National Trust and the Society for the Preservation of the Countryside.
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I come to Part III dealing with access to open country. I see that Article 27 provides that:
"A district council shall consult the Department and such bodies … representatives of owners and occupiers".
Is there provision for bodies representative of the public to be consulted? If not, why not? I note that the Sports Council of Northern Ireland states that it is a fact that the public in Northern Ireland generally believe that access to the mountains, moorlands and coastline is theirs as of right. In fact, many of us believe that that is the case in Great Britain as well. It is also observed that it is possible for an individual to gain legal access to open country, but after traversing a few miles he may find that legal access is no longer open to him. Is that not a matter for a central body to deal with?
I note that under Schedule 1 there is reference to prescribed bodies. Your Lordships will find the reference in paragraph 3(b)(iii). Will the Government list precisely who those prescribed bodies are? Finally, is there not a sound case for the creation of a body somewhat similar to the Countryside Commission to deal with all relevant matters under this order? Despite the efficiency of "the Department"—which is referred to throughout but which I presume is another way of describing the Ministers concerned—it is not sufficient to leave these matters to the Department, and the establishment of such a commission is recommended by the Assembly on page 10 of its report. I have raised just some of the issues which seem to me to be apparent. If we were able to amend the order like a Bill, there would be many other matters.
3.29 p.m.
Lord Donaldson of Kingsbridge: My Lords, I must confess my feeling of admiration for the homework which has been done by the noble Lord, Lord Underhill. I looked at the order fairly carefully and I could not find a single question to ask. However, I suppose that that is the difference between industry and idleness. I did take the trouble to ring up the Northern Ireland Office and was assured that this order was simply bringing Northern Ireland into line with our arrangements here.
Although I do not have much to say about this order, I have quite a lot to say about the most important part of it; namely, the maiden speech of my old friend and colleague the noble Lord, Lord Fitt, and his appearance here, at which we all, in all parts of the House, rejoice. I think that he was the Member of Parliament for Belfast Dock in the 1972 Stormont Government. We then had the executive, which lasted for five months on a power-sharing basis and was finally wrecked because one section of the Protestant extremists had failed to join. The best organised men of violence on the Protestant side broke it. During that time the noble Lord, Lord Fitt, was a colleague of mine; I was the Minister in the Government and I think that he was Deputy Chief Executive of that Government. He was respected by all—certainly by the Protestants and certainly in those days by the SDLP. It was only later that they turned against him, and they turned against him because he was right and they were wrong. If they had been able to do what he would have done and what he favoured doing—which was to come into the Assembly at once and share the

17
power that was being offered—we would have a very much more hopeful situation than we have now.
He was a pleasure to work with. He used to enter the Secretary of State's office, sit down, take his gun out of his pocket—of course, he was not allowed a gun in the Secretary of State's office, although he was allowed one in his pocket—and the flow of language of all kinds was fascinating but always extremely well-informed and extremely shrewd. It is a tragedy that his colleagues in the SDLP have rejected the best man they ever had.
I shall say no more, except to point out that in his remarks he gave us something very disagreeable to think about concerning what we have to discuss in the Statement which is to be made later this afternoon. I shall say no more about that until then. However, I should like to conclude by saying that I welcome this order, but even more I welcome the presence of the noble Lord, Lord Fitt, in our House.
3.32 p.m.
Viscount Brookeborough: My Lords, like other noble Lords, I should like to rise and congratulate the noble Lord, Lord Fitt, on his appearance in this House and on his speech. I agree with what the noble Lord, Lord Donaldson, said about how much he will contribute on many matters to this House. The noble Lord, Lord Fitt, and I have known each other for a very long time and I think that we have a mutual respect. It is a great pleasure to follow him, and his maiden speech today was certainly the trigger which prompted me to speak on this particular order, because this draft measure has been very fully discussed with many people. It has not satisfied everybody, and I personally have one or two reservations.
The noble Lord, Lord Underhill, mentioned horses. I believe that the order empowers local councils to allow trekkers on horseback and people like that to use these footpaths, but it is to be at the discretion of the local council and there could be some disagreement on that. For my sins, I am the national representative of the British Horse Society in Northern Ireland and we have made representations on this point.
On a much wider issue, if the Minister can assure us that the Department of Agriculture will have a very large say in the consultations that will take place before a footpath is designated, I believe that the fear of the farmers will in fact be satisfied. As I have said before, the Department of Agriculture has a very special relationship with the industry, whether it is the manufacturing industry attached to agriculture or the agricultural industry itself. The farmers of Ulster have great confidence in the department. I should like an assurance from my noble friend that he is satisfied that in fact his department will have a large say. I, therefore, recommend this order.

Radioactive Waste: Sellafield
3.34 p.m.
The Minister of State, Department of the Environment (Lord Bellwin): My Lords, by leave of the House, I should like to repeat an Answer to a Private Notice
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Question being made in another place by my honourable friend the Under-Secretary of State at the Department of the Environment. It reads as follows:
"The Sellafield works of British Nuclear Fuels Limited which are an essential part of the United Kingdom's nuclear power programme, operate under the terms of a site licence issued by the Nuclear Installations Inspectorate of the Health and Safety Executive and in accordance with authorisations for the disposal of radioactive waste issued by my department and by the Ministry of Agriculture, Fisheries and Food. The latter are published in an appendix to the company's annual report on discharges, and according to the department's information, they have kept within them.
"My right honourable friend the Secretary of State for the Environment set out fully in a Written Answer on 2nd November the substantial reductions in discharges the company have recently made and the further reductions we have required them to make over the next couple of years. The authorising departments keep a continual watch on the situation and all the available scientific and monitoring data, and will take whatever action is necessary to ensure continued protection of the public.
"A discharge occurred over the weekend of 12th-14th November, which caused some contamination of a short stretch of beach near the site to be discovered on 19th November. BNFL have stated that this did not represent a danger to the public and the beach was reopened last night. As a precaution, the Ministry of Agriculture, Fisheries and Food is carrying out its own monitoring in the area, including monitoring of the beach and fish. Inspectors of my department are making a formal investigation to discover how the incident occurred and whether there has been any breach of the conditions of the authorisation."
My Lords, that concludes the Answer.
Lord Graham of Edmonton: My Lords, will the Minister accept that the frank and forthright statement by the Parliamentary Under-Secretary on the radio programme, "The World this Weekend" yesterday, that the Government are dissatisfied with the safety standards at Sellafield, while alarming in itself, is welcomed as a manifest of the Government's unease? When the Parliamentary Under-Secretary said in that programme that he was not satisfied that BNFL was meeting the high standards which now exist, does he appreciate that this must fill the whole country with alarm—and, I venture to suggest, with anger as well—and that all actions he intends to take to make BNFL management act efficiently and responsibly will receive the backing of all sides of this House?
When the Parliamentary Under-Secretary said that the Government have been worried for some years about the discharges and have been taking major action to diminish them, can we be told what these major steps have been? Without wishing to over-dramatise the issue, does the Minister appreciate that it is not possible to over-dramatise this particular issue? Has the Minister seen the statements by British Nuclear Fuels that it is satisfied that there is no danger

19
to the public? However, the public—particularly those living in the area—are far from satisfied.
Is the Minister aware that process workers have stated that the recent leak was bigger than has been admitted? Can the Minister reconcile press reports over the weekend that, although workers claim that up to 20 times the permitted daily limit of radioactive waste has been pumped into the sea, the company asserts that it has only been two-and-a-half times the legal limit? If the Minister shares our view that two-and-a-half times the legal limit is intolerable, will he ensure that the company complies with the standards laid down on medical and environmental grounds, and that no excess above the legal limit will be tolerated?
Finally, are the Government aware that public confidence in ultimate public safety, as it is affected by the disposal of nuclear waste, can be crucially affected by the manner in which Ministers face their responsibilities to make sure that safety measures for the public safety are scrupulously and unfailingly observed? To this extent we on these Benches say on this issue, "All power to your collective elbow".
Lord Tordoff: My Lords, I too should like to thank the noble Lord, Lord Bellwin, for repeating this Answer. I would not wish in any way to be alarmist about this situation; I think it is very easy to draw alarmist conclusions. Recently there has been much publicity about leukaemia cases occurring near to Windscale. My own view is that one should be suspicious of too many conclusions being drawn from a very small sample. However, that will not make the problem go away.
Again, like the noble Lord speaking from the Labour Party Front Bench, one heard the statements by Mr. William Waldegrave the other day, which did very little to alleviate one's concern. Do the Government not agree that the Answer we have just heard is somewhat anodyne in relation to the statements made over the weekend? May I ask why, for instance, if a discharge occurred over the weekend of the 12th–14th it then took five days for the site to be discovered from which it was apparently necessary to remove the public? Does that mean that regular monitoring is not going on in these areas and that a sudden accidental discharge will not be picked up in time to preserve the local population from undue hazard?
One is grateful for this Statement having been made, but in the past so many statements have been made and assurances given—for instance, by the noble Baroness, Lady Birk, on 22nd December 1976. The public is getting a little tired of feeling that a veil of secrecy is being drawn unduly over these matters when their health could be at risk. I am not saying that it is at risk; I am saying that it could be at risk. Will the Government recognise that they need to be even more open than they have been so far?
Lord Bellwin: My Lords, I am grateful to the noble Lords who have spoken on this subject. I certainly appreciate the concern. Indeed, I welcome the chance to amplify some of the things which were said over the weekend. The one thing that we do not want is any secrecy, or anything of that kind. That is the one thing
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that is likely to cause real concern, and with some justification for it.
So far as the Statement which my honourable friend made is concerned, clearly he would himself have to expand on that if it was thought necessary, but may I answer some of the points that the noble Lord has made. First, the Government are showing their concern by the fact that we have immediately called for the Black inquiry to be carried out. It is right that it should be. Although we have no evidence at all that would indicate that there is need for concern at the moment, nevertheless the fact that this kind of thing happens itself is enough to have made us want to institute the inquiry, and that we have done.
If I may answer both noble Lords together, I was asked why it took five days before the effect on the beach was observed. I understand that there is no effect if the tides have taken the waste away from the coast. But, again, this is the kind of thing that needs to be considered, and I am sure will be, when the Black inquiry does its work. Of course, it is basically a responsibility of the company, but, having said that, the Government themselves must want to know also; because it is true, as the noble Lord, Lord Graham, said, that there is great concern by individuals, and not least those who live in the area. That is why we seek in no way to try to say all is well.
So far as we know on the evidence we have there is no need for concern, but the fact that this matter has arisen in this way is enough, and we must look at it. I assure both noble Lords and the rest of your Lordships' House that we do not take this lightly at all, despite the fact that we do not consider that there is any evidence so far that makes us worry overly about it. Nevertheless, it must be looked into carefully, and it will be.
Lord Graham of Edmonton: My Lords, may I say what I ought to have said earlier? I am grateful to the Minister for having repeated the Statement here that was being made by his honourable friend in another place. Will the noble Lord the Minister take it from me and I am sure from many others, that we welcome the declaration that he has made, that in no way are the Government to be party to secrecy or hushing up? There is obviously a borderline to be drawn in the kind of information which properly falls into one category. However, we are talking about a public unease and unrest that in our view can be quickly allayed, and that is by the determination of the Government to make sure that the company fulfils the responsibilities laid upon it. The weekend press reports may not be wholly accurate, but if the assertion is made that something which is two and half times above the legal limit is tolerable, then we on this side of the House are saying that that assertion should in no way be tolerable. But we are grateful for what the Minister has indicated, and that is deep concern and continuing determination to make sure that safety is maintained.

Darkley, Armagh: Shootings
3.45 p.m.
The Minister of State, Northern Ireland Office (The Earl of Mansfield): My Lords, with the leave of the House I shall now repeat a Statement being made in

21
another place by my right honourable friend the Secretary of State for Northern Ireland.
"At approximately 6.15 p.m. yesterday, at least three men armed with automatic weapons entered the Mountain Lodge Pentecostal Gospel Hall near the village of Darkley in County Armagh. They opened fire in the entrance hall, killing two church elders and fatally wounding a third, whom they then followed into the Gospel Hall itself. There the gunmen opened fire on the congregation of between 60 and 70 people, including about 20 children. Seven members of the congregation were injured, two seriously. The gunmen then ran outside, fired another 25 shots at the congregation through the outer walls of the hall, and then fled. None of the congregation had any connection with the security forces. Responsibility for this appalling attack has been claimed by a body calling itself the "Catholic Reaction Force". One of the weapons used has previously been used in incidents for which the Irish National Liberation Army has claimed responsibility.
"The whole House will join me in extending our sympathy to the families of those killed and injured. It will also share my horror and disgust at this outrage. Though in the course of the 14 years campaign of terrorism endured by the people of Northern Ireland there have been other incidents involving greater loss of life, none before has involved the cold-blooded murder of people at worship. The shootings show the true nature of terrorism, and the true nature therefore not only of those who perpetrate it but also of all those who advocate and support it.
"The universal condemnation they have received from all sides of the community, and from all parts of the United Kingdom and Republic of Ireland, shows in full measure the revulsion which this hideous act has aroused.
"The Government of the Republic has given the strongest possible assurances of its full co-operation in pursuing those responsible. The RUC, assisted by the Army, is determined to arrest the murderers".
My Lords, that concludes the Statement.
Lord Underhill: My Lords, I thank the Minister for repeating this Statement. It is a tragic commentary that consideration of an order dealing with the recreation and ordinary life of people in Northern Ireland has to be interrupted by a Statement of this tragic nature. First from these Benches we join in expressing sympathy to the families of all those persons who have been killed and to those who are suffering injury. We join also in the expression in the Statement, of horror at this indescriminate and insensate act. I note in particular in the Statement the emphasis of the universal condemnation which is being given by all sections in the United Kingdom and also in the Republic of Ireland.
No stretch of imagination could justify these acts for any reason whatever. It may be understandable that there are reactions to these horrific acts. From these Benches I would implore that there should be no reprisal activities, and urge also that there should be no protest withdrawal from the Assembly. Either course
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would play into the hands of the terrorists. I should like to feel that the Government will endorse these two appeals.
Reference is made to steps to be taken by the RUC assisted by the Army. I welcome in the Statement the assurance that the Government of the Republic has promised all co-operation in trying to track the perpetrators of this act. These shootings may bring pressure for additional security measures and changes in legislation. May I ask the Government, if they should consider such pressure, to await completion of the review now being undertaken by Sir George Baker?
3.50 p.m.
Lord Donaldson of Kingsbridge: My Lords, we in the Alliance in both parties wish to be associated with the horror which has been expressed by the Secretary of State, and we thank the noble Earl for repeating the Statement today. Those noble Lords who heard Lord Fitt's maiden speech a few minutes ago will realise that we can say very little to improve upon what he said in his disgust and horror at this intolerable action.
There are two things which are very significant about it. The first is that it was a Nonconformist church, where all the people, on the whole, may be regardedas not terribly keen on Catholicism. It was unquestionably an action motivated by an indirect religious motive. I think that those who did it were probably using religion but were not themselves religious. This feature is particularly disgusting to all of us who believe that people's relationships with their Maker, if any, should be respected by other people as well.
The other significant fact is that one of the weapons used belonged to an organisation which has done great damage already. It is, as it were, the extreme wing of the IRA. I believe it has never been specifically dissociated from the IRA by the IRA, though I may be wrong about that. So far as we are concerned, this is an extreme wing and an even more extreme group has done something which we all deplore.
In his maiden speech, my noble friend said that he thought that this was a deliberate attempt to induce a religious war. It is the first time that I have heard those words used in this House. I believe he was right to use them. I hope he is wrong in his expectation, but I think it is a great warning to all of us to relax not at all in our fight against terrorism. I am glad that the noble Earl, in repeating the Statement, has made it perfectly clear that we will pursue these scoundrels as hard as we possibly can.
The Earl of Mansfield: My Lords, I should like to thank the noble Lord, Lord Underhill, and the noble Lord, Lord Donaldson of Kingsbridge, for their welcome to this Statement. It is quite obvious that feelings of disgust and revulsion are universally shared throughout the House.
The noble Lord, Lord Underhill, made an extremely important point about possible reprisal activities. It is true to say that no amount of horror at these shootings could ever be a justification for people taking matters into their own hands. The rule of law can only survive if its enforcement is left to the proper authorities. To do otherwise will merely mean an

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escalation of violence and will further the objective which the terrorists themselves seek. There can be no question of a religious war; it would merely be an excalation of terrorism.
The noble Lord, Lord Underhill, made another point which is also important. Of course the framework is there in the Assembly at Stormont for the people of the Province to workout their political differences in an atmosphere of democracy and union, and it is for them to take up the opportunity. One hopes that the OUP will determine its attitude with the good of the greater number—indeed, of all people in the Province—in mind.
To reply to the noble Lord, Lord Donaldson of Kingsbridge, very little is known about the Catholic Reaction Force, because no organisation bearing that name has ever claimed responsibility for an incident and therefore nothing is known either about it or about its members.
Lord Rawlinson of Ewell: My Lords, having regard to what the noble Lord, Lord Donaldson of Kingsbridge, said, which, in certain quarters, may not be fully understood, will my noble friend make perfectly clear the utter horrorand degradation which is felt by everybody, and particularly the Catholic community, at this vicious and vile murder which took place last evening?
The Earl of Mansfield: My Lords, I am grateful to my noble friend. I am sure that all responsible sections of the community in Northern Ireland, and not least the Roman Catholics, will, if they have not already done so, express their revulsion at what has happened.
Baroness Phillips: My Lords, I wonder if I may put on record, following what my noble friend and the noble Lord, Lord Donaldson, said, that, as I understood it, the Roman Catholic Archbishop has already stressed his condemnation. It would be most unfair if that were not recorded.
Viscount Brookeborough: My Lords, may I add my expression of horror at what happened last night? It has increased the danger of retaliation. I can only say that any of us who live in Northern Ireland in areas which are under attack will have to do a lot to try to convey confidence back to the people who suffered this appalling tragedy.
What I think has come out—I should very much like my noble friend to convey it to the Royal Ulster Constabulary—is what a magnificent force it is and how scientifically based, so that, within 24 hours, it can trace the ammunition back to the person who has been using it. That is how efficient the force is, and it deserves our tribute from the whole House.
Will my noble friend represent to the Secretary of State that a certain increase in over-security adds confidence in areas where there is a shortage of confidence? That is the presence; a higher level of profile, I think it is called. Secondly, will my noble friend remember that the rule of law is a very delicate thing when there is an attempt at revolution and that suspension of freedom as given by the emergency legislation is something which has, so far, deterred
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retaliation? When the new emergency laws come back for re-enactment, will he remember that any further weakening of the forces of law might have a disastrous effect in the present climate? Therefore there must be no weakening in the new laws of emergency.
The Earl of Mansfield: My Lords, I shall be very happy to pass on everything that my noble friend has said by way of congratulation. In fact only a week ago I went to the forensic science laboratory in the suburbs of Belfast and was extremely impressed with what I saw. I have no doubt that a word of congratulation should be passed to that organisation and the scientists there. I also endorse the other matters which my noble friend mentioned.
Lord Fitt: My Lords, will the noble Lord agree that there are a number of factors attached to this very brutal murder which are not evident in other murders? First, it was deliberately and overtly, without any ambiguity or qualification, designed to be a sectarian murder. It took place in a church hall. What arose from that was deliberately designed to bring about retaliation from the other community.
Secondly, the word "Catholic" has been used by those who claim to be the Catholic Reaction Group. This is only the second time that the word "Catholic" has been used by those who claim responsibility for murders. The other occasion was when 10 Protestant workmen were killed in the very same area in January 1976. Again, no one has been apprehended for that. It may well be that it was the very same bunch of murderers who murdered the 10 Protestant workmen which carried out the atrocious murder yesterday.
Thirdly, there is a question which frightens me in Northern Ireland. There are many Northern Ireland politicians on the minority side who talk of the alienation that now exists between the minority community in Northern Ireland and this Government. Such sentiments expressed can only but give succour and support to the murderous thugs of the IRA and the INLA. Alienation from the establishment or from the Government can mean one thing, but it should not mean that one then proceeds to the ballot boxes, as many Catholics did in June this year, to vote for candidates who were openly in support of murderers and thugs. That is most important.
Finally, no matter how many troops you may have in Northern Ireland or how many members of the RUC, the only people who can defeat these murderers are the community which at the moment would appear to be giving them support. These murderers could not operate for a single second were they not given the assurance that people within the community either in Northern Ireland or immediately over the border are willing to protect them. It is those people—and particularly the Catholic community in Northern Ireland—who now have it in their own hands to take those people out of circulation by giving information to the security forces. By doing so, they will not only be protecting their own lives but they will be protecting their own community in Northern Ireland and—whether or not it is said by Cardinal O Fiaich—it is in the interests of the Catholic community in Northern Ireland that they should inform on those people, if they know who they are, to the security forces.
The Earl of Mansfield: My Lords, I am sure that the whole House agrees that the noble Lord, Lord Fitt, has neatly and succinctly summed up the situation pointing out not only the difficulties and dangersbut—perhaps most important of all—that if it were not for the regrettable attitude of some parts of the community, then the men of violence could not exist. This, of course, applies on both sides of the sectarian divide. So I think that it is up to all those who live in the Province—and it is certainly up to the Government—to continue to provide the machinery and the framework which will enable people on each side of the sectarian divide to sink their differences and resort to the ballot box and the debating chamber rather than the bullet.

Access to the Countryside (Northern Ireland) Order 1983
4.2 p.m.
Debate resumed.
The Earl of Mansfield: My Lords, it may be convenient now that we get back to a little access to the countryside. My first duty is to apologise to the House because I was not in my place at the very moment when this order was called on. My second duty is a much more pleasant one. It is to congratulate the noble Lord, Lord Fitt, on his maiden speech. I have had the privilege (if that is the word) of serving (if that is the word) in Ulster only for about six months. I have had the pleasure of meeting the noble Lord, Lord Fitt, on only one occasion which, curiously enough, was a jubilee dinner in honour of the Royal Maternity Hospital. But what I do know is the universal affection with which he is held in all parts of the Province. That extends to people of every creed and of many different occupations. I know that his wise counsels will help your Lordships when Northern Ireland matters fall to be considered in future. I, too, hope that he will not confine himself to Northern Ireland matters alone but, now he has broken his silence, that he will weigh in on all sorts of issues. I for one shall be very happy to listen to him.
I should also thank your Lordships for the way in which this order has been greeted. It is an important order. It will bring the Province into line with the rest of the United Kingdom by introducing legislation which is equivalent to the rights of way and access to the countryside provisions which have been operative in Great Britain for many years. I think that I shall confine my remarks this evening to outlining the main provisions of the order. I can go into any detail if I am interrupted. The noble Lord, Lord Underhill, illustrates the drawbacks of this type of legislation in that we do not have a Committee stage. I am sure that he will forgive me if I say that most of his points were technical and really Committee stage points. I shall write to him about those which I did not scribble down or on which I have not had the help of my officials to answer this evening. I shall send a copy of the letter to every other noble Lord who has taken part in this debate.
What I want to say to begin with is that there have been very wide-ranging consultations with interested
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bodies in the Province and widespread support for the legislation has been shown. The bodies who have been consulted range from the Assembly itself (which was extremely useful in its consideration of the draft) to organisations such as the Ulster Farmers' Union and the district councils. All in all, there have been pretty full consultations at different levels. Not only were changes made as a result of the consultations, but the revised proposal was considered by the Northern Ireland Assembly. The Assembly welcomed the legislation and put forward 12 recommendations for amendment. Three of them have been included in the draft order and seven of them are already covered in substance in the provisions of the order.
As some noble Lords have said. Part II of the order makes district councils responsible for the assertion and protection of public rights of way and enables them to maintain such ways and to erect guide posts and direction notices on them. Your Lordships will note in Article 3 a change from the published order in that district councils are required to maintain appropriate records of public rights of way in their districts. It is not proposed to introduce a statutory registration procedure with the preparation of definitive maps as provided for in Part IV of the National Parks and Access to the Countryside Act 1949. Differences of scale, land tenure, the number of public rights of way and so on make a less formal approach more appropriate in Northern Ireland. District councils are also empowered to create new public paths, to bring such paths into fit condition for use, to maintain them, to close and divert public paths by order where necessary or desirable and to make appropriate payment or to pay compensation to persons having an interest in the land involved.
A further change has been made in Article 15 to enable diversion of public paths on appropriate grounds. These changes will enable the protection of the flora and fauna to be grounds for diversion or closure. Article 19 has been amended to allow persons other than the occupier of land to make representations for temporary closures or diversions. Part III makes provision for enabling district councils, where necessary, to make formal arrangements with landowners to enable the public to have access to open country such as mountains, moors, foreshore, woodlands and so on for open-air recreation. Article 26 provides for certain categories of land to be excluded from the provisions of this part of the order, for example, most agricultural land and nature reserves, while Article 27 requires district councils, in consultation with the Department of the Environment and other bodies, to keep under review the need to secure public access to open country and to consider what action should be taken, whether by negotiating access agreements with landowners under Article 28 or by making an access order under Article 29, where it is not possible to make an agreement.
Articles 39 and 40 enable the district councils and the Department of the Environment to acquire land, where this is considered necessary, to enable the public to have access. Provision is also made for the safety of the public on the access land and for the payment of compensation to persons having an interest in land which is adversely affected in consequence of the coming into operation of an access order. Part IV

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contains further powers of the district councils and the department as well as general financial and supplementary provisions. In particular, Article 44 requires district councils in exercising their functions under the order to have regard to the needs of agriculture and forestry and to the need to conserve the natural beauty and amenity of the countryside.
Article 50 empowers the Department of the Environment to grant aid expenditure incurred under the order, while Article 51 enables district councils to make arrangements with landowners or other persons to assist them with functions concerning the protection, maintenance and signposting of public rights of way and public paths, the carrying out of certain works on access land, and to contribute towards the expenses of these volunteers in so doing.
A number of questions were put to me. I think I have illustrated the very wide range of bodies which were consulted, such as the Ulster Farmers' Union and the Ramblers' Association. I was asked about appeals and I think Article 12 was mentioned by the noble Lord, Lord Underhill. There is an appeal to law as of right but it will be for the Department of the Environment to make the actual decision and there will be no appeal from that. Perhaps I might say on this point that the Department of the Environment will be what I might call the "lead department" in this area; but of course it will take advice from the Department of Agriculture for Northern Ireland. I have absolutely no doubt that many of its decisions will be based on the advice it receives from those who are perhaps more versed in agriculture than is the department itself. This applies to what I think my noble friend Lord Brookeborough was saying, that my department, the Department of Agriculture, will have a very full part to play.
Lord George-Brown: My Lords, may I interrupt the noble Earl? I do not pretend to be an expert on this but I was rather shaken by something he has just said. He said that the Department of the Environment will take the decision and that there will be no appeal from that. it just struck me, as an ex-departmental Minister, that he is enunciating a new principle. If the department takes the decision, surely it has been the whole of our practice previously that there has to be an appeal against that to somebody—"to Parliament", says the noble and learned Lord the Lord Chancellor sotto voce; to the ombudsman, say I more loudly; to the courts. Did the noble Earl really mean that if a department bureaucratically takes a decision the individual has no appeal to anybody?
The Earl of Mansfield: My Lords, no doubt the noble Lord, Lord George-Brown, pulls me up correctly. It is necessary to look at the drafting of the order, and also to have some regard for historical events in Northern Ireland, actually to understand that when I say that decisions will be taken by a department it is in fact a term of art and springs from those functions which originally were transferred to the old Stormont legislature and those which were not. Those which were, were drawn back at the time direct rule was imposed on the Province, but because of the way in which their legislation has been traditionally
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drafted, and still is, if the noble Lord will turn to the order he will in fact see that it is the department in all these cases which acts in a particular way and not the Minister. I have to confess that when I first came to the Northern Ireland Office I was not a little startled to read that myself.
Regarding appeals, for instance, under Article 12, the matter is going to be very similar to an administrative order which a Minister makes. Of course, as such he bears full political responsibility for it and, as I have already said, an appeal will lie at law and it goes without saying that in a proper case the ombudsman will come in. So that I think the correct way to sum up what I have been saying is that in many ways it is similar to what might be called a compulsory purchase order, and the same safeguards and balances will apply as in that instance.
I was going to answer my noble friend Lord Brookeborough about horse riding. District councils have the power to create new public paths and in each case the district council will decide the type of traffic—I think that is the word: at any rate, those who may use the path, for instance, ramblers, equestrians, cyclists or a combination of these—and the district council will pass by-laws which will regulate traffic in these ways.
The noble Lord, Lord Underhill, referred to the definition of public paths. The district council will have the power to create new public paths and they will have the power to determine what type of path each will be. In other words, it goes back to the traffic point. A public path is defined in Article 2, I think: that is the definitions article.
I think this order will be welcomed by all those who have pressed for legislation to safeguard the right of the public to have access to the countryside. It will also prove of benefit to the farming community. It goes a long way towards reconciling the increasing demand for recreation in the countryside, which has to be balanced with the need for agriculture. It is in that spirit that I commend the order to your Lordships.
On Question, Motion agreed to.

Matrimonial and Family Proceedings Bill [H.L.]
4.17 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I rise to move that this Bill be now read a second time. Before I embark upon what I have to say, I must apologise for the length of the speech I am driven to make. I have tried to reduce it, but find I cannot do so without failing to do justice to my argument. The Bill has been widely misunderstood and widely distorted, and it is right that I should seek to put the record straight.
This is an important Bill and it is urgently needed. I do not think it is possible to exaggerate the need, for the reasons which I will give, but it is possible to exaggerate its effects and therefore distort its contents. May I begin by quoting from a recent leading article in the New Law Journal, which gets it exactly right in this respect—and I hope that if I do quote I shall not be

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accused of giving any personal or subjective bias to what it says. The article read as follows:
"The myths and exaggerations are already forming around the Matrimonial and Family Proceedings Bill and need to be dispelled. The reality is that the Bill is not an assault on the family or the institution of marriage. It does not presage the return of fault-based divorce, nor would its enactment create a new class of destitute jobless first wives on the breadline while their husbands' second families live in luxury.
"Indeed the practical effect of the new measure, when implemented, is likely to disappoint, or alternatively assuage the fears of those who expect it to introduce dramatic changes in the way the courts deal with the financial aftermath of divorce.
"The Bill brings together proposals of three Law Commission and one Scottish Law Commission reports, and adds a dash of procedure inspired by the Lord Chancellor's Department, not least to attempt to unravel the jurisdictional problems that Richards v. Richards revealed".
Lest anyone should think that I have introduced this measure out of my own ideas, let me reassure them. Apart from Part V and the miscellaneous section Part VI, there is nothing in this Bill which has not been proposed by the Law Commission. There is nothing in this Bill proposed by the Law Commission which has not gone through the full procedure of working paper, consultation, reconsideration and publication of final reports—the full and proper methodology which law reform in an important field is now recognised as requiring. This is not—if I may contradict a religious programme—Lord Hailsham's Bill; it is a Law Commission Bill backed by the Government.
The Bill embodies the substantive recommendations of Law Commission Reports Nos. 112,116 and 117. It does not alter the grounds of divorce as laid down by the Act of 1969 (now consolidated in the Matrimonial Causes Act 1973). It does not pre-empt the consultation paper recently issued by the Booth Committee, which has not yet gone beyond the consultation stage.
I said a moment ago that the reforms were urgent. Within literally a week or two of taking office in 1979, I discovered one outstanding difference between my first term of office as Lord Chancellor which began in 1970 and my present term of office still continuing in 1983—the complaints of the injustices alleged to arise from the law of divorce. This was not surprising. The law of divorce had been altered in 1969, and by 1979 the consequences were beginning to be felt as the vastly increased number of broken marriages began to accumulate.
I need not remind your Lordships of the nature of the reforms of 1969. By that statute, which I criticised at the time in another place, irretrievable breakdown was substituted as the one ground for dissolution, in place of the old grounds which were largely based on fault. It was done, at least in part, on the initiative of the Church of England in a booklet called Putting Asunder. Whether or not I was right to criticise the Bill does not now arise. But I recall that I said then that it was brought forward very largely on the advice of the Churches, and in particular the Church of England, and would greatly increase the number of divorces. It has, in fact, done so. For the present, at least, it is enough to say that the decision taken in 1979 is irreversible.
Lest anyone should doubt my own views on the subject—and some foolish people have—let them now be placed on record. I believe that the family is the
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solid foundation upon which all human society should be built. I believe that the ideal of marriage is one man and one woman during their joint lives. When it occurs, I regard divorce as a misfortune—even a disaster—for both parties, and especially for the children of the marriage. I believe that people flounce out of marriage too often, little recognising and seldom understanding the abiding consequences of dissolution. Marry in haste, they used to say, repent at leisure. Divorce in haste, say I, and the consequences will be with you for the greater part of your life to come.
Nonetheless, one must be realistic. The Churches need not celebrate marriages of which they disapprove, and each possesses distinctive and divergent views as to the nature and degree of dissolubility of the vinculum of marriage applicable to their own communicants. One Church has a distinctive law of nullity which differs substantially from that of the secular law of the land. But whereas the Churches have jurisdiction over their own communicants, they have no jurisdiction over others and the state has no such option.
We have a single status with which we have to contend. We have marriages between Catholics, Protestants, or mixed, Jews and Quakers, Moslems and atheists, agnostics and believers, first marriages, or marriages of divorced persons who may, in theory, have anything between one and 10 former partners between them. All partake of the civil status of marriage. To one and all the English laws of nullity and dissolution apply. The children of all are entitled to maintenance, and the laws of maintenance and property of divorced partners must apply to all, irrespective of creed. Broken marriages are with us. We are not in the field of moral theology. We are in the field of law and social policy and, although there is room for many views in this free country about the nature, dissolubility and sanctity of marriage—or any particular marriage—there is only room for one law of divorce and one law of the consequences which follow from divorce.
It soon became apparent to me in 1979 that those affected by divorce resolved themselves into three divergent classes. There were the children—innocent, silent, inarticulate, and almost unrepresented. There were the husbands and—where they existed, as they usually do—their second or subsequent wives. There were the divorced wives, in the nature of things less numerous, and therefore less vocal, than the husbands and their second spouses. After divorce, wives remarry less often, and, since their claims to maintenance disappear on remarriage, not all of those who are divorced remain upon the field of battle.
Each group had a case. Each had an irrefutable case in many instances. Each underestimated the strength of the case on the other side, because each generalised from his or her own experience. Each blamed the law, usually unfairly, because what each was complaining of in substance was not, in fact, the fault of the law but the result of the facts of life. The husbands complained of the fact that one income will not keep two families, and the continuing expense of a former partner proved an unwelcome burden on the resources of a second union. The divorced wives complained because, in the nature of things, a wife's earning capacity is

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diminished or perhaps destroyed by marriage, especially when her renewed earning capacity after dissolution is further impaired or rendered impossible by responsibility for the children and their care and control.
So I referred the matter to the Law Commission and have since had recourse to the Booth Committee, in the circumstances that, though the law could not alter the facts of life, it need not unnecessarily exaggerate the hardships inevitably involved. Above all, we have no right to use the law concerning the sequelae of divorce as a tool to impose on others our own moral theology regarding the dissolubility of marriage which, by that time, ex hypothesi has already taken place in the form of dissolution.
There are three separate groups of proposals in this Bill with which I must deal in this speech. I shall not deal in detail with Part IV (Scotland), Part VI (Miscellaneous) or, except cursorily—for it is technical, and more suitable for the Committeee stage—Part V. I shall therefore deal primarily with Parts Ito III. I shall deal with them in inverse order of their importance and discussibility, and not in the order in which they occur in the Bill. The first, which in my view need hardly be discussed at all on Second Reading because it is so obviously right, is contained in Law Commission Report No. 117 under the heading "Financial relief after foreign divorce". The report recommended, and Part III of the Bill provides, that the High Court should have power to entertain applications for financial provision and property adjustment, notwithstanding the existence of a prior foreign divorce, annulment or legal separation. This is particularly important where there are assets in this country.
Its advantages are limited to persons domiciled or habitually resident in England and Wales and to persons whose matrimonial home was in England or Wales (in which case the powers are still further circumscribed). It is highly technical and, because the other parts of the Bill are so much more important, I shall for the moment leave it at that. I submit that it is obviously required and fills an obvious gap in our existing legislation. The jurisdiction is heavily circumscribed and is wholly within the discretion of the court.
Part IV of the Bill contains Scottish provisions which correspond to those for England and Wales in Part III, to provide in Scotland for financial relief after foreign divorce. The nature of the jurisdiction conferred upon the Scottish courts by Part IV will be rather different, but the differences arise on the whole from the fact that we are dealing with dissimilar systems of law on either side of the border. The purpose of the reform in each case is the same.
The second and in my view the second least contentious part of the Bill is Part I. I say "in my view" because, strangely enough, owing I believe largely to the fact that one religious body failed to respond to the invitation to participate in discussions on the consultation paper, and did not even bother to notice the report till a year after its publication, it has been largely misunderstood and misrepresented.
The case was fully argued in Law Commission Report No. 116 and, if only the critics had taken the
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trouble to read it, I cannot help thinking that a great deal of muddled thinking and acres of print could have been saved. At the time the report was issued it received almost unanimous approval. There are two provisions in this part of the Bill. The less contentious is in Clause 2. This gives the court a slightly enlarged discretion to admit petitions for nullity of a voidable marriage after three years from the date of its celebration where the petitioner himself was suffering from mental incapacity during the first three years. This slightly amends what is now Section 13(2) of the consolidating Act of 1973 which was derived from my own Nullity Act of 1971, and this provision is based on the revised view of the Law Commission contained in paragraghs 3.1 to 3.6 of the Law Commission Report No. 116. Their revised opinion was based on principle and on experience. I do not myself believe the point to be contentious and, at least at present, I do not intend further to enlarge on it.
More important in Part I is Clause 1, which amends and replaces what is now Section 3 of the 1973 Act, although the substantive law goes back to the 1969 legislation. The 1969 legislation imposed a discretionary bar against proceedings for divorce within three years of marriage, a discretionary bar which can be lifted in cases of "exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent". Contrary to what has been suggested, the Bill does not make divorce easier. The ground for divorce remains the same; namely, irretrievable breakdown, provable only by establishing one of five alternative states of fact. It deals solely with the time which must elapse after the celebration of the marriage before the presentation of a petition by either party. The Bill, following the views expressed in paragraph 2.32 of the report, imposes an absolute bar of one year in place of a discretionary bar of three. This might be considered illogical since the comparable Scottish law without social harm imposes no bar at all. What is obvious, however, to me and what was obvious to the commission, was that the discretionary bar must go and that any bar which remained would have to be absolute and, being absolute, would have to be shorter. The inescapable choice is between no bar at all, as in Scotland, and an absolute bar, as in the Bill. The status quo is a non-starter. After consultation, the proposal, as I said, received almost unanimous support among those consulted.
I now summarise the arguments against the discretionary bar. These are, first, that it is conceptually absurd and therefore unacceptable; second, that it is incapable of enforcement consistently or in practice at all and has been recognised as such by the judiciary; thirdly, that it can be circumvented by a simple device; and, fourthly, that in practice it has increased bitterness, done harm to the children and reduced the chances of conciliation because it encourages use in the petition of damaging and sometimes inaccurate allegations of a painful kind.
It is conceptually unacceptable because it assumes that there exists a normal standard of depravity which should be condoned and accepted despite irretrievable breakdown and which is capable of precise definition, or a similarly normal standard of hardship with the same characteristics. On reflection, I should have thought it was obvious that there are and can be no such normal standards, and since the question arises

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only on proof of irretrievable breakdown the whole apparatus is nonsensical, anyway.
It is incapable of consistent application because in the absence of a precise definition of exceptional depravity or hardship each judge will apply, and does apply, his own subjective and different standards to a particular case. In practice it cannot be enforced at all, because petitioners simply put in allegations of such an extreme character that, in the absence of sufficient scrutiny, applications nearly always succeed, and once the proceedings are commenced they are commenced and the doors close behind the petition. Where petitioners resort to this device, conciliation often becomes impossible. Where they do not, they circumvent the law by proceedings in the first place for judical separation, following their petition for that with one of dissolution.
I must add here, sadly, that I heard it seriously suggested by one eminent ecclesiastic that the parties should be compelled to use judicial separation as a separate device. I must say that that cock will not fight and that no practising lawyer would accept the ecclesiastic's view. No doubt judicial separation must be an option for a petitioner who believes in the indissolubility of his or her own marriage, but for those who do not it is a straitjacket which it is unjust to force upon them.
I must add my note on the Scottish experience, which is illuminating in the extreme. As I have said, the Scots have no time bar at all and, although the matter has been referred to them more than once, have resolutely refused to accept the English rule. As a race, I would respectfully have said to my ecclesiastical critics that the Scots would not be particularly complimented by the implied criticism that they are less zealous than the English for the Christian religion and doctrine, the stability of marriage or the sanctity of family life. Indeed, they would have facts on their side which are best illustrated by a graph on page 56 of the Law Commission Report. The time bar may, indeed does, defer divorce in some cases. It does not deter it. The graph establishes this conclusively. What the time bar does is to increase the number of "limping marriages"—that is, marriages which have broken down irretrievably but are not yet dissolved. A more potent stimulus to immorality outside marriage I can scarcely imagine. That the Church of England should in the report of the Board for Social Responsibility on this set of proposals thus encourage adultery or fornication is not a particularly good cause for Christians to advocate or adopt.
It may be asked, if this be so, why have a time bar at all? Logically this is a good question which is dealt with in paragraphs 2.12 to 2.15 of the report. The answer to this is that, under present procedures, a reduced time bar will not in fact impose intolerable hardship and is unlikely to operate at all, except in a relatively insignificant minority of cases. There are, however, certain abuses of the law of marriage—for instance, in order to obtain nationality —which might be encouraged, particularly in London, if there were no bar at all. Though the commission originally sounded a rather uncertain note in their consultation paper, I believe with their final report that an absolute bar for one year is the right rule for England and Wales. Otherwise I must say at once that I would get
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rid of it altogether and conform to the Scottish practice.
I now come to what is the most important of the proposals in the Bill. It is more important because it affects more people, and in particular the two classes of person I referred to at the beginning of this speech. It amends Section 25 of the consolidating Act of 1973 which lists the matters to which the court must have regard in exercising its powers in relation to the financial settlement following divorce. It is these which have given rise to the greatest amount of correspondence, and in which the difference between the former wife on the one hand, and the former husband and his subsequent partner on the other, have been most viciously and articulately expressed.
I must say at once—and one starts from this proposition—that fundamentally the policy of the existing Section 25 and the cases based on it is right. It is as well to remember why it is right. It is right for the following reasons: First, it is right because it recognises that the circumstances of each case vary so infinitely that it is impossible to do more in the Act than to enumerate the factors which the court should take into account in making provision, and it cannot put the court in any form of simplified straitjacket compelling it to come to a conclusion contrary to justice and commonsense.
Secondly, despite much talk by husbands condemning what they call the principle of the "meal ticket for life", it enables the court to recognise that a wife frequently—I would say in the case of a marriage of substantial duration or where normally there are young children—loses or impairs her earning capacity during a marriage of any length, while a husband normally does not, and that this effect of disparity continues after dissolution more particularly when—as again is normally the case—the children are young and remain in the care and control of the wife. This is inescapable even though it means that, though the marriage is dissolved, the ex-husband continues to have for an indefinite period some responsibility for his former partner; unless of course there are capital assets which can facilitate a clean break, or, in the absence of children, a young wife can go back to earning at something like her own level before too long. It is in this connection that it is no good talking of a "meal ticket for life" where there has been a cruel or unfaithful husband and an innocent and caring wife who has lost her earning capacity and has care of young children. There is a continuing moral responsibility which the law must recognise. May I just add here how deeply I resent the suggestion put forward by some one-purpose pressure groups that the intention of this Bill is to deprive such wives of their existing rights. My intention is to preserve them, and I believe the courts will act the same way.
Thirdly, the existing section is right because, although it provides that conduct can have some influence on financial settlement and that it would be repugnant to conscience if it did not do so, the section, as interpreted by case law, makes it quite clear that nothing—I repeat "nothing"—would justify a return by the courts to the degrading and squalid experience which we can all remember as "the defended cruelty case".

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While these elements in the old section are right, I very rapidly came to the conclusion, shared independently, as it now appears, by the Law Commission, that there are defects in it which urgently require amendment, and in their practical operation give rise to legitimate complaints. The first, and the least controversial, of these relates to financial provision for the children of the dissolved marriage. Subsection (1) of the new Section 25 (contained in Clause 3 of the Bill) provides that in exercising its powers first consideration is to be given to the welfare while a minor of any child of the family who has not achieved the age of 18. The old section did not give the same degree of priority to the children of the marriage—even though the courts in practice may to some extent have done so. We have, however, continued the old subsection (4) which qualified this with respect to children not physically the children of one or both parents.
My Lords, the second, and most important, change is to the last words of the old subsection (1). This limited the discretion of the court by enacting that, in exercising its powers, the court should place the parties, so far as it is practical, and, having regard to their conduct, just to do so, in the financial position in which they would have been had the marriage not broken down. This is to set the court an impractical and wholly undesirable objective. The basis of divorce being the irretrievable breakdown of the marriage, it is neither practicable nor desirable to attempt to put the financial eggs back in their shells. That would involve the courts in a miracle worthy of my reputed predecessor, Saint Swithin, who is reported to have done just that on a famous occasion. It is this which has led to the most anomalous of decisions and given rise to the legitimate element in the "meal ticket for life" complaint.
The comparable passage in the Bill requires the court to have regard to the standard of life enjoyed by the family before the breakdown of the marriage, and of course to their means. Given that divorce has taken place, the so-called principle of the clean break in appropriate cases, but only, I repeat, in appropriate cases, is the only practical and by far the most desirable outcome. Say a broken marriage lasts six months without children, or where capital assets allow a clean and permanent break, prolonged maintenance and repeated variations can only, in my judgment, lead to prolonged bitterness. At present the courts cannot of their own motion give effect to this principle. If you are going to base dissolution on irretrievable breakdown, the sooner the parties can be parted, if they can be parted without injustice, the better. The new law alters the status quo by enjoining the court to take into account the possibility and the justice of the clean break principle where it is applicable at all, and provides consequentially, reversing a previous decision under the old law, that a prayer for further relief may be dismissed at the suit of either party. I am sure that this is both wise and just. Given that divorce takes place there must come a time, at least in a minority of cases, but I would suggest only a comparatively small minority, when the financial dependency should come to an end. In an extreme case this time may come relatively soon, but in other cases only after a period of years.
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The third respect in which the old Section 25 is altered is, I believe, more verbal than real. The courts early took advantage of the manifest policy of the old Act of 1969 that the old "defended cruelty" cases, to which I referred a moment ago, should not be resurrected under another name. This decision was embodied in a reported case known to lawyers, after the name of the parties, as Wachtel. But for a time after the decision there was a tendency to treat certain phrases in the judgment as if they constituted an amendment to the plain wording of the Act, when they were only intended as a piece of judicial rhetoric when they were uttered on the lips of Lord Justice Denning, as he then was. This, of course, it could not have been intended to do since it would have been contrary to the main terms of the Act. Recent practice, I am told, has recognised this, and it is made plain beyond doubt in Section 25(2)(g) of the Act, as it would be inserted by the present Bill, which provides that the court is only to take conduct into account if the conduct is such that the court considers that it would be inequitable to disregard it. This is in effect slightly more restrictive than the wording of the old Act, but slightly less restrictive than the judicial rhetoric "gross and obvious" of Wachtel might lead one to suppose if taken out of context.
My Lords, I come now to Part V of the Bill, which differs in character from the first four parts. Part V is entirely about the machinery of justice. Its main thrust is to improve the distribution and transfer of business between the High Court and county courts, and to abolish the rule that, if defended, matrimonial causes must automatically be transferred to the High Court. There is also a transfer of rule-making powers to what has hitherto been called the Matrimonial Causes Rule Committee.
These provisions about distribution and transfer represent the policy I have decided upon following the responses to a consultative paper we issued last January. That paper canvassed two alternative options. One was to improve and rationalise the present distribution of business between the High Court and the county courts. The other was to amalgamate the family jurisdiction of the High Court and county courts by creating a Family Court, although not at that stage one which would have included the jurisdiction of magistrates' courts. The response to that consultation was not all one way. A majority of those who replied were in favour of the Family Court, though many of those who took this view regretted that I was not going further and proposing the creation of a new Family Court with exclusive jurisdiction in all family matters. A minority expressed the view that it would be wrong to take family business away from the High Court, and that to do so would appear to downgrade it, whereas it was said that in reality a good deal of family work is some of the most important of all the work done by the High Court.
I myself have never concealed the fact that I am attracted by the concept of a Family Court, though I do not believe it would usher in the millennium in the way that some of its supporters seem to suppose. I have also been impressed by the views of those replying to my consultative paper who regretted the fact that the paper did not canvass the possibility of

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including the jurisdiction of the magistrates. Given the continued strength of support for the idea of a comprehensive court with exclusive jurisdiction in all family matters, I have agreed with my right honourable friend the Home Secretary that we should now re-examine the idea of a unified family court, starting with a detailed study of the resource implications in terms of finance, manpower and accommodation.
In the meantime, I am anxious to meet the main criticisms that have been made about the way in which family business is distributed between the High Court and the county courts. In the present Bill, therefore, I have decided to proceed on the lines of the first option in the consultative paper. The elements of the scheme are very simple. First, the rule that a divorce or other matrimonial cause automatically transfers to the High Court on becoming defended is abolished. Secondly, the criteria according to which family business is distributed and transferred between the High Court and county courts will he set out in directions given by the President of the Family Division with the Lord Chancellor's concurrence: that is, Clause 31. Clauses 32 and 33 make general provision to facilitate transfer, the powers for which will be exercised in accordance with the President's directions. "Family business" is defined by Clause 26 as all the business which is assigned exclusively to the Family Division of the High Court. That assignment is, itself, alterable by subordinate legislation under the Supreme Court Act 1981, so that it will be possible to alter the scope of these new transfer provisions without the need for primary legislation.
I hope that this scheme, which should ensure the maximum flexibility of transfer between the High Court and county courts, will go a long way to ensuring that the right cases come before the right judges, and I am confident that it will eliminate the vagaries of the present system. Much will, of course, depend on the contents of the President's directions, and that is something on which we must work together in the coming months. Finally, the powers of the Matrimonial Causes Rule Committee are extended to cover all family business.
A number of the clauses of Part V, for example Clauses 28 to 30 and 35, make no significant change in the law but have simply been carried over into the Bill, with little or no amendment, from the Matrimonial Causes Act 1967 so as to facilitate in due course the total repeal of that Act.
I should perhaps mention one thing which is not in the Bill because it may be that some of your Lordships will have hoped to see something about it; that is, the topic of conciliation in matrimonial proceedings. Let me say first that I heartily support the principle of conciliation. It is of course better and more civilised for people to resolve their differences amicably than to fight them out, though in the context of divorce the interests of the children need to be watched. The real issues over conciliation are about methods and funding.
I must, however, emphasise one point. This Bill is not a necessary vehicle for advancing the cause of conciliation. Quite apart from the fact that it would be premature to bring provisions into it in advance of
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decisions on the report, the cause of conciliation does not need primary legislation to promote it. It needs people with skill and dedication, it needs money and it may need changes in procedure and practice, which can be effected by rules of court and other subordinate legislation. This latter aspect is being examined by the Committee on Procedure in Matrimonial Causes under the chairmanship of Mrs. Justice Booth, which issued a substantial consultation paper a few months ago. I hope, therefore, that no noble Lord will attribute the silence of the Bill on this topic to a lack of interest or activity on the part of the Government or myself.
I am conscious of having taken up a great deal of your Lordships' time, but I do not think I could have presented the terms of the Bill more shortly, and I hope your Lordships will forgive me. I beg to move.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
4.55 p.m.
Lord Elwyn-Jones: My Lords, I do not think that the noble and learned Lord the Lord Chancellor need apologise for the length of his speech in view of the complexity and importance of this Bill. Indeed, if I may say so, we were forewarned when on First Reading he read the Long Title of the Bill, which achieved a record for worthy inclusion in the "Guinness Book of Records", if that were not an unsuitable place for so important a pronouncement.
I respectfully agree with the opening words of the noble and learned Lord that the family is the solid foundation of society. Further, I believe that to maintain and support the family is a primary duty of Government—alas, too often neglected in this day and age. The Bill we are now considering affects a very large number of families—husbands, wives and children—in our community. I doubt whether I have received such a large postbag on a Bill as I have on this since I have been a Member of your Lordships' House. I have to say that a great deal of it comes from one source—the supporters of the Campaign for Justice in Divorce. I make no complaint about that. I have also received serious and substantial representations, some of them critical of the Bill, from the rights of women organisation, the one-parent families organisation, the Children's Centre, and also a helpful briefing from the Family Policies Centre. What has been communicated by them indicates that we are to have a pretty lengthy Committee stage, and if there are any Whips present—I see one—no doubt that will be notified to the appropriate quarters so that we shall not have too much impatience reflected by the Government Chief Whip, in his own inimitable fashion, when the matter comes to the Committee stage.
One of the difficulties mentioned by some of the organisations is concern about the rise in the number of divorces since the Divorce Law Reform Act 1969 came into force in 1971. That has given rise to concern, possibly legitimate concern, about the future of the family. But I do not think there is any actual evidence that more easily obtainable divorce has in fact led to more marital breakdowns. Divorce is the end result of the breakdown of a marriage, not its cause. When that has happened in a way the divorce itself becomes the least important part of the

39
proceedings. When legal aid for undefended divorces was withdrawn—a step for which I take responsibility—legal aid remained available for financial relief and matters relating to children. These are the problem areas and, not surprisingly, they constitute the crucial elements in the Bill, as the noble and learned Lord indicated.
One of the difficulties that we are facing is a certain inadequacy of information about important matters, particularly when we are considering financial provisions; that is to say, much more information is needed about the cost of bringing up children. That is especially important in considering the circumstances of children living in one-parent families.
If and when the Bill comes into force, we believe that it will be of great importance to ensure that provison is made for continuous monitoring of its operation, particularly the parts dealing with the financial consequences of divorce. In this context perhaps I may be permitted to remind the noble and learned Lord of the provisions of Section 105 of the Children Act 1975 which require the Secretary of State to lay before Parliament every five years:
"a report on the operation… of the Act… and… institute such research as is necessary to provide the information for those reports".
That is an important precedent. I hope that the noble and learned Lord the Lord Chancellor will perhaps comment on this either at the end of this debate or later as a precedent which should be followed in view of the uncertain impact at present of the financial provisions of the Bill.
There is a geat deal of concern in certain quarters about the so-called clean-break provisions of the Bill. However, it is claimed on the Bill's behalf that a clean break to end financial liability between spouses following divorce would not apply where children are involved. When we come to consider the detail of the Bill we shall want reassurance that that is clearly spelled out. The presence of children in the family surely makes a clean break impossible. After all, parents cannot divorce their children.
So far as concerns the proposal that wives should become more self-supporting, we should consider the fact that at the time of divorce most wives are not in a position to be so. In the Committee we shall examine very carefully whether the Bill will fetter the discretion of judges and registrars to decide whether short-term maintenance or a clean break is appropriate in a particular case. If they have that discretion it may be that the effect of the Bill will not be as fierce as some critics have indicated. I think that it is right that we should bear in mind that wives do suffer serious economic disadvantages from marriage itself, as well as from divorce.
Mostly—although there are many exceptions —wives are still expected to put their jobs and their economic independence second to the interests of their husband. They are still the principal carers of children, the elderly and other dependent relatives. Few in those circumstances can manage to keep a full-time job throughout their marriage. Many women are prevented from taking paid employment outside the home because of the wholly inadequate day nursery facilities at the present time. Opportunities for training
40
and retraining are limited. Sadly, women in general still do not enjoy equality of opportunity and pay at work. No doubt my noble friend Lady Lockwood will enlighten us on this matter when she addresses the House.
Therefore, while it may be right—as the Bill does—to consider the wife's earning capacity when there are no children of the marriage, I submit that it is not realistic to expect a mother raising children to take steps to increase her earning capacity. When the Bill is discussed in detail we shall have to consider the impact of the provisions of subsection (2) (a) in the amended Section 25 of the 1975 Act—namely, that regard shall be had to the earning capacity of the mother in the marriage and:
"any increase in that capacity which it would… be reasonable to expect a party to the marriage to take steps to acquire".
It is simple to state but not easy for many wives to achieve.
The reassuring provision in the Bill is its pronouncement that the first consideration in the financial provisions will be financial support of young children. That will be generally welcomed in the House. The Children's Legal Centre, however, which has communicated with me, casts serious doubts on whether the Bill achieves that aim. We shall have to consider that in due course. There may indeed be something to be said for giving the children the right themselves to apply to the court independent of the parent or the guardian in certain circumstances. Maintenance as a child's right would concentrate the court's attention on the child's needs—although I venture to think that most judges and registrars will be most concerned about that. Unhappily it is the case sometimes that neither the father nor the mother has much concern about the children. I recollect the father who said: "If it was not for the children, my wife and I would have been divorced years ago. She will not have them and I will not have them". That, I trust, is a very unusual condition.
The new Section 25(1) in Clause 3 perhaps covers too narrow a limit when it speaks of:
"first consideration being given to the welfare while a minor of any child of the family"—
and then it adds—
"who has not attained the age of eighteen".
Many children necessarily remain dependent on their parents beyond the age of 18 for educational, medical and other needs. Perhaps this is a matter for adjustment in Committee.
Some fear has been expressed about the impact of the new Section 25(2)(g) and the duty to have regard to:
"the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".
There is a fear that that will reopen the unhappy disputes about behaviour and conduct which have so long in the past prolonged divorces: increase the likelihood of contested hearings; and perhaps cause grave damage to any possibility of a long-term relationship between the parents and the children. Perhaps we can revert to that in the Committee stage of the Bill. It certainly is desirable that we should avoid as far as possible the creation of discord in this already difficult field.

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The noble and learned Lord dealt in devastating fashion with the criticisms that are made about Clause 1 of the Bill which will substitute for the present three-year requirement an absolute bar during the first year of the marriage of the possibility of a petition for divorce being available. I confess that I am in full sympathy with the noble and learned Lord's criticism of the present language of the law, the present provision that if a party wants to petition for divorce within three years they can do so, but must show exceptional hardship or depravity. In the past many judges have condemned that; and, if I may say so, it is gratifying to see among the list of speakers today judges of great experience in this field. No doubt they will give us the benefit of their own experience of dealing with these matters.
I am bound to say that my own inclination is to support some time restriction before divorce proceedings can be brought. I think that in the interests of public policy it is important that there should be a limited period of experience for the newly married. I venture to think that it could well devalue the institution of marriage if divorce were readily obtainable within days of the marriage taking place. Therefore, I favour a time restriction. I certainly agree with the view expressed by the noble and learned Lord and by the Law Commission that the law would be simpler and more comprehensible if it asserted the general policy by means of an absolute bar upon divorce during the first year of the marriage. I am not dogmatic as to whether the period should be one year or two years. I am inclined to the view expressed by the noble and learned Lord and the commission that,
"where the spouses' incompatibility is revealed during the early days of marriage, the balance of social advantage clearly lies with the speedy termination of the marriage".
I do not think that I should like to be quite as speedy as they are in Scotland about these matters without there being any great harm to the public or indeed the private morals of Scotland. I think that a year's waiting time is a helpful suggestion.
I conclude by referring to the matter which the noble and learned Lord the Lord Chancellor dealt with at the end of his speech; namely, the need for conciliation. If he will allow me to say so, I confess that I was not greatly reassured by what the noble and learned Lord said. I can quite see that it might be difficult to make a statutory provision requiring conciliation. Compulsory conciliation is indeed almost a contradiction in terms. But the ready availability of conciliation services has already proved itself in different parts of the country—in Bristol, and in other cities. Even if conciliation would not save a marriage—though it might do so in some cases, with second thoughts—conciliation conducted by neutral and independent conciliators can reduce much of the bitterness in divorce in the drawing up of agreements on custody access, and even financial settlements.
Therefore, I hope that the Government will now really take this matter seriously. If I may say so without impertinence to the noble and learned Lord, lip-service is not enough. Public finance is needed. Most of the people who do the work do it either for nothing or for most inadequate reward. I do not think that what I suggest would impose a tremendous burden upon the Exchequer. Therefore, I hope that
42
before we finish the debate the noble and learned Lord the Lord Chancellor can at least give us an assurance that he will have a go at the Treasury—as I venture to suspect he has done from time to time in the past—to see that this important aspect of conciliation is provided for, as I, too, tried to do in my own time.
As the 1966 Law Commission Report, The Field of Choice, expressed it:
"When a marriage has irretrievably broken down it should be possible for the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.".
Those are indeed notable words. We believe that conciliation and the efforts of conciliators could help greatly to achieve that purpose.
5.16 p.m.
Lord McGregor of Durris: My Lords, the issues with which this Bill deals touch deeply held and often conflicting views about family life and about the relationship between private and public morality, and therefore raise strong feelings. For example, feelings have been aroused among women who have feared, happily mistakenly—the noble and learned Lord the Lord Chancellor has reassured us on this point—that the Bill was intended to strengthen the husband's hand against his wife in respect of maintenance. I do not regard this debate as a proper occasion for contributing to such discussions; nor do we in the Alliance regard the proposals of the Bill as a subject for party politics.
The noble and learned Lord the Lord Chancellor has set an excellent example in his urbane, tolerant, and most helpful discussion of the purposes and content of the Bill. The Bill stems from some of the major changes in family law which were shaped by the English Law Commission in its early days under the chairmanship of the noble and learned Lord, Lord Scarman. In part, those changes represented an adjustment to the silent social revolution which has taken place in the family as an institution as a result chiefly of demographic developments and of the movement of wives towards equality with their husbands.
In considering the Bill it is helpful to have in mind some aspects of this transformation, because in order to support the family we must understand it. First, changes in the last 40 years in the sex ratio and in the propensity to marry have given women equality of opportunity to marry. We have a high proportion of the population marrying, and until very recently they did so at younger and younger ages. That, combined with the fall in adult mortality, has greatly increased the duration of marriage, so that for the average couple it has become an institution which lasts for 45 years.
To put these points in more dramatic terms, I would say that Professor Anderson has calculated that the cohorts born in 1861—the grandparents of the interwar years—were the first people in our history a majority of whom would know all their grandchildren. Today men can expect to live for 14 years and women for 23 years after the birth of their last grandchild. The lifespan of the family has indeed lengthened as the number of divorces has risen.
It is not possible fully to assess the significance of the huge increase in divorce and to compare the experience of the present with that of the past, because there

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are no means of knowing what proportion results from greater access to divorce as a consequence of the growth of equality before the law, and what proportion represents a greater willingness among people at large to seek divorce as a cure for the ills of marriage.
The lengthening of the duration of marriage gives at least the statistical perspective upon the estimate that somewhere around one-third of married couples will soon be experiencing divorce. It is not possible to predict whether this proportion will increase or decline. Good arguments can be put either way, but there are certainly no signs of a flight from marriage given the very high re-marriage rates of divorced persons. We know that a high proportion of women remarry. What we do not know is whether those who remarry are the mothers with the larger number of younger children. One may reasonably suspect that they are the very people who fail to reconstitute themselves easily into new families.
From these Benches, we shall not oppose the Bill, and we are glad to accept most parts of it. However, we feel some disappointment. The noble and learned Lord, Lord Elwyn-Jones, has mentioned the inadequate factual information that is available for law reform in this area. In its response to its own discussion paper on the financial consequences of divorce, the Law Commission referred to this difficulty. It said:
"Even the most basic questions about the extent to which the existing private law imposing financial obligations on spouses does, in reality, provide any significant support for their families cannot be answered. We do not know how much maintenance is in fact ordered to he paid by the courts. Still less do we know in what proportion of cases such payments are actually made, and for what period of time they continue".
So we are in a position—under what the noble and learned Lord the Lord Chancellor called a degree of urgency—of legislating about maintenance in complete ignorance of the social reality we are attempting to regulate. That is not an adequate basis for effective law reform. Indeed, when the legislation was being framed in the late 1960s and early 1970s, the Law Commission considered a proposal to monitor the financial consequences of the legislation that we have been discussing. Unhappily, that proposal fell through. but had it been undertaken there is no doubt that many of the difficulties now being experienced would never have arisen. It is a considerable disappointment that there is no provision in the Bill for monitoring its results. This is in sharp contrast to the monitoring arrangements proposed in its draft Bill by the Scottish Law Commission. I hope that the noble and learned Lord will be able to consider the desirability of providing monitoring.
It is perhaps an oddity of family law reform that the area about which there is considerable and detailed knowledge of the wishes of the population at large—that is in respect of matrimonial property—is the one area in which the Government rejected legislation. They are now proposing legislation about an area of which everyone agrees we are ignorant. It is desirable that we get rid of the requirement in the legislation under which parties must be put in the financial position that they would have enjoyed had the divorce not occurred. That would necessarily put judges, who are, in any event, engaged very frequently
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in judgments of Solomon in this area, in a position in which they had to speculate in the absence of effective information. I suspect that the use of phrases in the present Bill of the order of earning capacity and future earning capacity will involve very similar speculation.
It is desirable beyond dispute to make the welfare of the children a first consideration when dealing with maintenance. But this is not, in practice, as simple as it sounds. It was stated by the noble and learned Lord, Lord Elwyn-Jones, that the notion of a clean break would be quite inappropriate where there was a mother with young children. I think that we would all agree about that. But when you face the other ranges of circumstance, from the young couple, both with jobs, who have no children, to the couple in which the wife has never worked and who has now reached her mid-60s, you move across the arc. You face the most formidable of all problems in administrative justice. No formula can possibly secure just results. There must be the exercise of very wide discretion to achieve justice in individual cases. That justice must also depend to a large extent on very much greater knowledge of the consequences of maintenance awards than we possess at present.
There has been a small amount of academic research, all of which points in the direction of confirming that little has changed since the publication, in the late 1960s, of the Graham Hall report, which contained a small-scale study of maintenance in the divorce court, and the Finer Committee on One-Parent Families in 1974. Both of those reports and all of the present studies show that the problem is not so much what law we ought to apply, as the fact that in a very large number of instances there is no money to apply the law to. Surveying the whole area of maintenance there will, of course, be a number—but it will be a minority—of persons who have money, who can allocate it, and who will respect the allocations. But in a large number of cases the casualties of broken homes must be borne by the taxpayer, and the taxpayer in fact carries them and has carried them since the first Poor Law Act 1601. All that has changed has been the circumstances in which the payments are made.
The Finer Committee on One-Parent Families showed that maintenance contributed only 12 per cent. of the total amount received by one-parent families on supplementary benefit. The maintenance that came from the Supplementary Benefits Commission was the substantial, crucial element, and what came from maintenance orders and voluntary payments was marginal. I believe that this situation is the norm of what exists in this society. I do not suggest for a moment that we should consider removing the personal responsibilities of husbands or, in a very small number of cases, of wives, for maintaining their spouses. But what we must certainly do in the long run is to stop treating the institutions of the law and the institutions of social security as separate organisations with no connection with each other in this area. What we have to do is to bring the private law of family maintenance into a much better relationship with the public law of social security. That inevitably points in the direction of the family court, because the main argument of the Committee on One-Parent Families for having the family courts was precisely that the

45
social security authorities and the courts could work in effective harness.
So I am very disappointed that we make no progress in this Bill towards the family court. I certainly welcome very gladly the decision of the noble and learned Lord to set up an inquiry into aspects of the establishment of family courts, but I would again echo what the noble and learned Lord, Lord Elwyn-Jones, said about conciliation. Conciliation is urgent; it has reached the stage at which support and very small amounts of money would help it to become established, otherwise it will wither and those who are engaged in it will become frustrated, disappointed and will go elsewhere.
We all know about the admirable scheme in Bristol and of the schemes elsewhere. Not in Treasury accounting terms, but in realistic accounting terms, conciliation will save money in all kinds of ways which do not need to be listed, just as Judge Jean Graham Hall in a recent piece of research has shown the likelihood that the establishment of a family court based on the divorce county court will lead to savings in public expenditure in this area. I very much hope that one of the areas that the noble and learned Lord the Lord Chancellor will investigate will be the costing of family courts and also, if possible, a cost benefit analysis of the effect of establishing a family court.
I have said enough to indicate that the Alliance welcomes the Bill because of the parts of it which are necessary and useful; that in respect of family courts its expectations have been aroused; but in respect of the financial provisions we have considerable anxiety about the future effectiveness of provisions which rest on no foundation of economic or social fact.
5.37 p.m.
The Lord Bishop of Rochester: My Lords, the historic partnership of Church and state in the life of our nation is a precious thing and has long been acknowledged by those of all faiths and of none. But as one who is not a lawyer I speak in this debate with more than usual trepidation.
However, there are few matters which affect more of our fellow citizens than those of marriage and divorce, because the family formed by marriage is the foundation for democracy and the keystone to stability and happiness for husbands, wives and children. So notwithstanding a recent unfortunate lapse, to which the noble and learned Lord has referred so graphically and so understandably, a lapse which I personally much regret, it has been the most natural thing in the world that in recent years the Church should have been involved not only in examining Christian teaching about marriage and how it should be exercised within its own membership, but also in looking at the law of the state concerning divorce.
That double role is not always understood as it should be, but in a book on Marriage in Church and State, published as long ago as 1912, the author, T. A. Lacey, writing of the duty of a Christian called to the reformation of the laws of the state, said:
"In doing this he has no right to put aside what he has learnt as a Christian, and in the quality of citizenship to act as a mere natural man … But neither is he bound to insist that the laws of the State, in regard to marriage or in regard to anything else, shall conform exactly to Christian teaching. Not all subjects of the State are Christian and the State must legislate for all.".
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It was in this spirit that in 1966 a report was presented to the then Archbishop, Lord Ramsey, entitled, Putting Asunder: a divorce law for contemporary society. This report, to which the noble and learned Lord has already referred, considered what provision should be made in civil law for divorce, and the Law Commission's response in its own report, The Field of Choice, and the consultations which followed both reports, were the basis of the 1969 Act passed by Parliament.
The central recommendation of the report, Putting Asunder,
which was implemented in the subsequent legislation, was that divorce law should be based on the concept of matrimonial breakdown as opposed to matrimonial offence. This was seen as being more in accord with the true nature of marriage and of what divorce means. It was thought that the doctrine of the breakdown of marriage ought not to lead to "divorce by consent", and that it was,
"not unworthy or incompatible with the covenant of lifelong union".
The report stated:
"In our opinion, this is a move away from superficiality towards a serious attempt to deal justly both with the complexities of the matrimonial relationship itself and with the interest of other persons upon whom the conduct of the spouses may have impinged. The social context of the family is thus recognised".
The group of people who produced Putting Asunder believed that, in putting forward this basic argument, they were assisting those who had to consider the framing of the reform of the divorce law in this country. They were not commenting on the form the Church's internal discipline should take, but on what the state ought to do to fulfil its obligations in the provision of law for marriage and divorce.
The essential consequences of such a change in the basis for divorce in civil law were, I believe, seen to be threefold: first, that the court should have a duty to inquire into what attempt at reconciliation had been made; secondly, that the trial of a divorce case should become much more of a judicial inquiry into the alleged fact and causes of the "death" of a marriage relationship, where associated questions concerning children and property could also be decided; and, thirdly, that the inquiry as to whether a marriage had irretrievably broken down should be of sufficient length and depth and that all verbally formulated grounds for divorce should disappear.
Although the law as it now stands makes the irretrievable breakdown of marrige the sole ground for divorce, it does not make provision for some of the key elements in the thinking of the report, Putting Asunder. The emphasis on reconciliation, so strong in the report, is minimal in the Act. The procedural proposals for proper inquiry into marriage breakdown have never been instituted or followed and, of course, now the sheer number of divorce petitions makes such provision hard to contemplate. However, it is perhaps worth observing that the authors of Putting Asunder gave a warning, that,
"to alter the law while leaving the method of administration as it is, would make divorce easier to obtain".
The Law Commission Working Paper No. 76 pointed out that, although the ground for divorce is that the marriage has broken down irretrievably, it is not necessary for the court to be affirmatively satisfied

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that such breakdown has occurred. On proof of one of five facts—such as adultery or cruelty—the court must grant a decree, unless it is satisfied that the marriage has not broken down irretrievably. As your Lordships all know, over 90 per cent. of all divorces are uncontested and are completed by post without the necessity for any court appearance by the applicants.
I submit that this is the background against which we need to see and assess whatever rule is made about the timing of divorce petitions. In fact, the present rule goes back to 1937. It was introduced to counterbalance the effects of some extension of the grounds for divorce. I believe that the original draft Bill contained no such restriction. In another place a clause was introduced to place an absolute bar on presentation of petitions for five years. But your Lordships' House amended this to three years with provision for cases of "exceptional hardship" or "exceptional depravity".
Nearly 30 years later in 1966 the Law Commission, following the recommendation of the report, Putting Asunder, favoured retention of the three-year rule. It said that divorce should not be so easy:
"that the parties are under no inducement to make a success of their marriage and. in particular, to overcome temporary difficulties".
Now, after the passing of another 17 years, as the noble and learned Lord has told us, the Law Commission thinks that there are strong reasons for change, the strongest of which is surely that the three-year rule seems to defer, but not to deter, divorce.
After considering five options, the commission decided in favour of the reduction of the time restriction to one year and the abolition of all exceptions. I think that we should take careful note that the commission believed that the lifting of all restrictions would have a bad effect on marriage as an institution, for it said:
"there is an obvious danger that any move which would appear to make divorce easier to obtain would be seen as eroding the stability and dignity of marriage".
However, there are many who believe that the option which the Law Commission has chosen does just that. So I hope that, in deference to those who feel strongly about the progressive erosion of the institution of marriage, during the Committee stage of this Bill we shall look very carefully at the other four options which the Law Commission considered, especially the possibility of issuing new guidelines for the courts on exceptions and of maintaining the three-year rule or possibly reducing it to two years. After all, it was this House that made a change in the Bill of 1937 which brought in the three-year rule. Perhaps it would not be inappropriate, therefore, if it were to be this House which makes a change nearly half a century later on the same matter.
I believe that there are a number of reasons why we should look very carefully at this proposal. If the basic concept underlying divorce law ought, in practice as well as in principle, to be "the irretrievable breakdown of marriage", then before such can be demonstrated, a marriage will normally need a sufficient time to get itself established. Of course, there will be some marriages which, for one reason or another, are non-starters from the outset. But surely it ought not to be beyond the capacity of the law to make
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provision for such cases through the humane and compassionate exercise of legal discretionary powers.
Secondly, in view of the evidence that at least 25 per cent. of those who present petitions do not proceed with them to the point of obtaining a decree absolute, there are clearly a minority of petitioners who in effect are saying, "Our marriage is in a deep crisis; we can see no way forward except divorce".
Such pleas for relief and help surely indicate that the most urgent need is not so much to alter the three-year rule, as for serious consideration to be given to more adequate support for marriage growth and development, and for the appropriate professional resources to be made available to support this, as I believe the noble and learned Lord, Lord Elwyn-Jones, was suggesting.
The third reason why we should think carefully before amending the law in this way is that, as he has told us tonight, 15 months ago the noble and learned Lord the Lord Chancellor appointed the Matrimonial Causes Procedure Committee under the chairmanship of Mrs. Justice Booth. Judging by their consultation paper, the report of this committee is going to be far-reaching and of great significance. If the Booth committee is looking at the tension between the fundamental concept of the breakdown of marriage and the facts which are used to demonstrate breakdown then, my Lords, would it not be wiser to hold over any change until the whole package of changes likely to be proposed by the Booth committee are before us and we can assess their mutual interdependence?
The committee's provisional view is that a hearing should take place as soon after the filing of a petition as is reasonably possible, and that the parties should be brought together in a non-adversarial setting. This could be an important proposal, as indeed could be those of the Booth committee about conciliation, for they say quite categorically, "there is evidence that conciliation can lead to reconciliation, sometimes in apparently unpromising cases."
The Booth committee is looking at the whole scene. Is there not a real possibility that its report might offer us a better climate in which to think about humanising divorce procedures? Will not the one essential requirement for their proposals about a hearing and those about conciliation be time? Should we not therefore think long and carefully before making any piecemeal decision affecting the time within which petitions for divorce can be made?
Marriages have to be made in the sharing of love and of life. It is surely the duty of the community, if we wish marriages to succeed, to do all in our power to prepare the ground for success. Is it not also the duty of the community to frame its law so that couples are encouraged to make their marriage work? To do this requires both time and the commitment of the will.
I speak only for myself, and I recognise the problems of the three-year rule, but I question whether the alternative proposed is the right one at this time. I also see the need for some action on maintenance; but only, if I may say so, if we bear in mind that many divorced wives as well as divorced husbands will sadly be among the 3 million unemployed today. What might have been a reasonable and possible expectation

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of employment in the 1960s is for many in the 1980s a sheer impossibility with the best will in the world.
I presume to hope that under the guidance and leadership of the noble and learned Lord the Lord Chancellor, whose passion for justice and whose compassion for the suffering we all respect, this House will look critically, and, if need be, radically at this Bill in Committee. Like the noble Lord, Lord McGregor, I do not think that this is a matter for party politics. My own hope is that we, the Lords Spiritual and Temporal, can reach such an agreement on a matter of human and spiritual importance that when it comes before Members in another place they will feel that the people of England, in all their need and frailty as well as in all their great potential, will find that the law is concerned to strengthen and stabilise their marriages and their family life.
5.55 p.m.
Lord Stallard: My Lords, in rising to make my maiden speech in this House, I find it difficult to define in precise terms exactly how I feel at this moment. Suffice it to say that if I knew what the term was, roughly translated it would mean extremely nervous. I am also very much aware of the established conventions on these occasions. I respect those conventions, and it is not my intention to offend them in any way. Having said that, however, I recognise the task that I have set myself by choosing to make a speech on the Second Reading of this Bill. So I hope that if I stray a little from my good intentions, the House will forgive me and noble Lords will continue to show me the same friendliness and courtesy I have experienced and appreciated since becoming a Member nearly two weeks ago.
When I first read the Bill I had reservations about some of its proposals, but I was hesitant about expressing them in this House which is so richly endowed with legal expertise, feeling that my own non-legal opinions might not be considered relevant. I must confess that the opening remarks of the noble and learned Lord the Lord Chancellor have done little to assuage those fears. However, after listening to the recent debate initiated by the most reverend Primate on the problems of crimes of violence, and hearing contributions during that debate from the Lord Chancellor, the Lord Chief Justice, my noble friend Lord Soper, and other noble and learned Lords, I was encouraged and inspired to make this short contribution because I found that many of the remarks made in that debate coincided with my interpretation of parts of this Bill.
For example, the most reverend Primate the Lord Archbishop of Canterbury in his opening speech on the 15th November (at column 1156 of Hansard) said:
"Unless we can do more to strengthen families and to reduce the frightening increase in divorce and separation we shall not be getting at the roots of violence."
The Lord Chief Justice, after listing what he considered were some of the causes of violent crime, said at col. 1179:
"But on top of that there is a host of other reasons—easier divorce—soon to become easier still … with broken homes as a result, easy abortion, the Pill at the age of 11 and 12 with all that means by inference …".
Running through many other speeches in that short but extremely important debate were pleas for a return
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to Christian standards, for a strengthening of family ties, and for more to be done here and elsewhere to assist this process.
I felt that here in this Bill was an early opportunity to perhaps begin that process. Informed opinion of many people outside this House, people involved with the implementation and effects of legislation in this field, seems to suggest that, far from assisting the achievement of the ideals expressed during that debate last week, certain aspects of this Bill might even be seen to be compounding, in part at least, some of the problems outlined by noble and learned Lords.
Indeed, Part II, Clause 3 of the Bill is unique in one respect: it seems to have united leading churchmen and organisations like the Legal Action Group, One-Parent Families, the Children's Legal Centre, and others in opposition in similar terms. One eminent Christian is reported as saying:
"This Bill does nothing to strengthen marriage and if enacted it will weaken marriage".
Another leading Christian has said:
"At a time when steps should be taken to rehabilitate the family as a stabilising influence in society, there is a danger that those people who take their basic morality from what the law permits will increasingly view marriage as a temporary contract".
The Legal Action Group says:
"The Bill will impede conciliation, create uncertainty in the law, and is unlikely to do anything significant to help dependant children who are involved in 60 per cent. of divorces".
Other organisations have made similar comments. My view is that we should listen to, and consider, those views.
I am concerned, too, about the social implications of the Bill, particularly when we consider the size of the problem. I have not time to give many statistics except one that frightens me. In 1981 159,000 children under the age of 16 in England and Wales had parents who were divorced, nearly double the number affected in 1971. If the current trend continues, it is estimated that about one in five children will experience their parents' divorce before they reach the age of 16. So, if we get it wrong at this stage, the social implications could be quite dramatic to say the least. I wonder at this point whether there was a DHSS input at the drafting stage of the Bill.
There are fears, too, in many quarters that the amendments to the Matrimonial Causes Act 1973 contained in Part II, Clause 3, of the Bill, could worsen the situation for many one-parent families. These doubts and others about the provisions of the Bill arise, in part, from the fact that very little reliable up-to-date information is available. Indeed, the Law Commission Report No. 112, in paragraphs 8 and 9, noted:
"One of the most serious difficulties encountered in examining any proposal for law reform in this area is that—notwithstanding a valuable study of the matrimonial jurisdiction of registrars carried out between 1973 and 1975 under the aegis of the Centre for Socio-Legal Studies at Wolfson College, Oxford—very little reliable … information is in fact available about the operation of the existing law.
The lack of such factual information obviously constitutes a formidable handicap to the task of law reform.".
The Commission went on to say in paragraph 11:
"it is in our view unsatisfactory that law reform should have to proceed on the basis of inadequate information about the operation of the law".

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Because of time, I will not further develop those arguments, but I hope that your Lordships will agree that they deserve further consideration.
I recall, too, the Private Member's Bill introduced earlier this year in another place which now forms the basis of this Bill. Permission was granted for the Bill to be read a second time, but on the appointed date, 4th February, objections were raised, the Second Reading was refused and the Bill was dropped. I found myself wondering what has happened since to make this measure so urgent that that Private Member's Bill now has the full weight of the Government machine behind it so soon and is being given such a degree of priority.
So far I have not been able to find any record of debate or official response to the Law Commission's reports on Family Property (in 1978) and Illegitimacy (in 1982), and we know that the Booth committee is currently consulting the public on its proposals on matrimonial procedures. The Law Commission is in the midst of a study on the legal consequences of the present grounds for divorce, all very relevant. I quote the Lord Chancellor's remarks during a short discussion in this House on 1st February last, when he said:
"you cannot go on tinkering with the law of marriage and divorce every 10 years".—[Official Report, 1/2/83, col. 680.]
With that I agree. I should have preferred it if we could have waited for the outcome of considerations of all those excellent initiatives taken by the noble and learned Lord the Lord Chancellor, as well as the need for full-scale review of court procedures, of the need for a national conciliation service and for the possibility of Government action on the desirability of establishing family courts. I welcome the Lord Chancellor's remarks on those aspects earlier today.
I look forward with others to the Committee stage of the Bill, when, hopefully, we shall discuss in some detail those matters to which I have briefly referred. For now I wish to thank noble Lords for the patient and kind consideration that they have shown me this afternoon.
6.3 p.m.
Lord Rawlinson of Ewell: My Lords, it is always a privilege to speak first after a maiden speech and therefore to offer the maiden congratulations to the maiden speaker. I do so particularly after the noble Lord's contribution with his particular experience of social care, his ministerial experience and also the arcane experience which he had in the Whip's Office in another place. That means that my noble friends Lord Denham and Baroness Trumpington must look after their onions, if that is the right expression, and noble Lords opposite will have to be even better marshalled than they have been in the past. The noble Lord has joined us in this debate. I am sure his name will appear many times on the Paper and he will always be listened to with great respect and great attention.
It was in 1815 that William Lamb wrote to Lord Landsdowne. He said:
"I know enough of domestic inquietude not to be surprised at any step a man may take under the pressure of it".
He certainly knew what he was talking about. Though it was expressed by a man married to Caroline Lamb,
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that was a sentiment which could equally have been echoed by many a woman of the time.
It was not until 40 years later that there was first established a new court to which was removed all the old jurisdiction of the ecclesiastical courts. It took another 66 years, till 1923, before the sexes were put on a similar footing as to the grounds for divorce. It was after the Royal Commission in the 1950s, following the Bill of the noble Baroness, Lady White, who will speak in this debate, that there came the Divorce Reform Act 1969, which altered the whole concept of the law of divorce with the elimination of fault and guilt.
Thus, divorce has become progressively easier over the past 130 years. Therefore, the institution of marriage, as traditionally conceived, has obviously been affected. Some of the criticism of the Bill has surely been absurdly exaggerated and, in part, grossly distorted, for society has accepted the need to provide for dissolution of marriage and the prime duty therefore is to ensure that the rules concerning the consequences of dissolution provide a fair and balanced system, especially when modern society openly accepts arrangements of living-in lovers and the children of such unions, and, in some aspects, seeks to require the law to provide rights to property and maintenance—the "palimony" syndrome, which in some quarters gains increasing acceptance. If it be that some sanctions are socially desirable so as to protect and enhance the status of marriage, it may be that the law should ever be used to enforce the legal consequences of marriage, but never the moral obligations arising out of associations outside marriage.
It is therefore understandable that the changes which were introduced by the 1969 Act and the legislation in the 1970s have not yet wholly provided a fair and balanced system of law. Like other noble Lords—indeed practically every noble Lord, I suspect—I have received massive representations, as I did following shortly after the 1973 Act. That attempted, as your Lordships will appreciate, to oblige the courts to put the parties into the same financial position after divorce as if the marriage had not broken down, while at the same time applying the new rules that guilt and fault had been eliminated.
In my view, many of these representations convincingly demonstrate some of the wholly inequitable consequences of Section 25. I accept that the people who write are usually the articulate who come from a particular section of society, but I have no reason to doubt that the
same traumas are experienced by others in other sections of society. Apart from representations, more personally influential is my own experience and that of many practitioners. There is no doubt that there have been many inequitable consequences from the operation of the 1973 Act and the obligation of the court to put the parties on the same footing as though there had been no breakdown of the marriage. This has accentuated the feeling of resentment when, in every case and whatever the circumstances, conduct has to be wholly ignored. These are the cases which arouse the most bitter resentment—where one of the parties to the marriage has caused the family life of the marriage to break into pieces, has behaved scandalously by any standard, but

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nevertheless ends up with a handsome financial settlement and with amenities to enjoy the fruits, and sometimes of wicked wrongdoing, while the wronged party suffers loss of marriage and home and is left quite unable to create another.
By that, I do not mean returning to the old syndrome of defended divorce. But I do believe that there can be cases, and are cases, where it is only equitable for the court to take conduct into account. The breakdown of marriage, as every one of us in this Chamber realises, affects and wounds individuals more than any other experience in life—more than death, more than illness, more than financial disaster. None of those creates such pain and distress or engender such bitterness; which can be, and is, targeted upon an individual, an individual who once, even for a short time, was loved and admired. Time is usually, but not always, the only healer. I am sure that it has been the experience of other noble Lords to have heard across their tables in the Temple or in their offices the voice which says "Never, never, will I forget or forgive". But, fortunately, people do forget and people do forgive. Time is the only thing which makes that possible.
Therefore, it is always a moving and distasteful task for the practitioner in the representation or the advising of those engaged in divorce. So often parties find it difficult to consider rationally which is best for them, and indeed, what is best for their children, because they are so blinded by their own immediate unhappiness. I think that we should appreciate in this House the task which is given to the judges of the Family Division and the appellate courts—requiring the judgment of Solomon, as the noble Lord, Lord McGregor, has said. It requires men and women of particular ability and character to man those courts; and, although they are entitled to guidance from the statute, nevertheless for justice to be done they must be given wide powers of discretion.
I turn now, if I may, to the passages in the Bill which have principally concerned the debate so far. I welcome the abolition of the "exceptional hardship and depravity" provisions. As the noble and learned Lord the Lord Chancellor has demonstrated, it is an impossible concept when looked at conceptually. What is "exceptional depravity" compared to "depravity"? What is the standard of cruelty where you have to find exceptional cruelty or exceptional perversion? What is perversion, apart from the obvious loopholes which have existed through alternative remedies?
I share the view of the noble and learned Lord, Lord Elwyn-Jones, and the right reverend Prelate: a preference for the substitution of some absolute and unqualified period when proceedings are barred. The question of course is what period? This is the most difficult judgment. Let nobody underestimate the very careful review and the arguments set out by the Law Commission, nor the importance of the Scottish experience. It is clear that on the Law Commission some wanted a period of more than one year. Would it be unreasonable for mature parties—because they ought to be mature if they get to marriage, sufficiently mature to realise what they are doing—that at least the marriage be not broken for more than one year? Would it not be reasonable for persons entering into
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the contract of marriage to accept that it cannot be broken for a period longer than one year? Personally, I am troubled if one year is sufficient. One year is sufficient to deter the sham marriage and to restrain the impulsive and ill-considered proceeding.
But in the context of the solemnity and social importance of marriage and to mark the gravity of the social contract—and I leave aside the question of sacrament—I wonder whether it ought not to be extended beyond one year. Of course, we cannot force parties to live together if there is a breakdown within that first year. Yet is it not reasonable to have a longer period? This question will be debated in Committee. I would say that the views I had expressed have been much tempered by what the noble and learned Lord the Lord Chancellor has said in his speech proposing this debate. I saw and heard very vividly the power of the argument against either no absolute bar or one year. I think that my own view at the present time is that perhaps it should be longer than one year.
I wholeheartedly support Part II. There are many examples of injustice, particularly since the acceptance of the "living together outside marriage" provision. We have all had the letters. I remember some that I had years ago which I put before the noble and learned Lord when he became Lord Chancellor many years ago—the letter, for example, of the wife who has won the home and maintenance until remarriage, cohabiting with her lover, selling the home, moving into a more manageable house, both working. It is not fair, it is not acceptable, and the noble and learned Lord the Lord Chancellor should be congratulated on his courage in deciding to change it. I do not believe that the provisions of this Bill affect the position of the middle-aged wife, after a long marriage, who is ill-equipped (after 20 years of bringing up children) to earn a living. She has got the right to expect—and will, I have no doubt, receive—the long-term maintenance. In those circumstances she will be protected.
However, with the proper claims of women being met and their increased participation in employment we must accept in appropriate cases the desirability of their becoming financially independent. The "clean-break" solution may be rare but it is desirable in particular cases. Even then, there are some hard cases which flow from it. Above all, the increased emphasis upon the financial support for the children must be commended. It is the children who are principally wounded by breakdown and theirs are the interests that, above all, must be safeguarded.
Some critics say that this Bill gives insufficient guidance to the courts. I do not accept that. I believe that there must remain this large sphere of discretion. The consequences of divorce are so painful, so complex and often so very different in application that, for parties to receive justice, the court must have ample discretion. The provision of the certainty of flexibility is, I think, achieved in this Bill.
I apologise to my noble and learned friend the Lord Chancellor and to the noble Lord, Lord Mishcon, who I understand will be winding up the debate for the Opposition, for not being able to be present here at the conclusion of the debate. I should like to say that I think that this Bill, within the limits—and I have sometimes criticised the way in which we make law in

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this country—of the present methods of the lawmaking processes, has been sensibly and carefully prepared in response to the demonstrably unfair effects of the present law. As I have said, and repeat, my noble and learned friend the Lord Chancellor should be commended and congratulated for bringing in this Bill so early in the present Parliament.
6.20 p.m.
Lord Denning; My Lords, may I second the congratulations of the noble and learned Lord, Lord Rawlinson, to my noble friend Lord Stallard on his maiden speech, prepared with such care and research.
This topic is one with which I have been concerned for most of my time. At the beginning of this century marriage really was a lifelong institution. It conformed both in Church and state to the definition: the personal union of one man with one woman to the exclusion of all others on either side for better or for worse so long as both shall live. That is how it was in 1900. There were hardly any divorces then.
Now, in my time, the structure of society has changed radically. Let me give four instances. First, the emancipation of women: at the beginning of this century the woman was subordinate to the man in law and in almost every other way, in professions, in life. Now she is free and equal, or should be. The second is the institution of marriage itself: whereas it was lifelong, now it can be terminable for irretrievable breakdown, often by consent, without any formality at all or with the barest formality.
Next, divorce was a social stigma, bringing shame and disgrace on the participants so that they failed in any appointment to anything of that kind. Now it is all right; it is no stigma at all, it is an object of sympathy for those concerned and there is the hope that they will be able to rehabilitate themselves as well as may be.
The other great change in the structure concerns the change in grounds for divorce. Until 1969 the petitioner had to prove adultery, cruelty or desertion for three years—and we would often go through days and days on trivial incidents of cruelty when both sides wanted a divorce. They fought it out at such length and at such expense, often on legal aid, because on it depended the vital questions of maintenance and custody of and access to the children. That has gone aside and, quite rightly, we now have irretrievable breakdown as the sole cause of divorce.
That brings me to this Bill. If I thought that it would in any way weaken the institution of marriage or that it would imperil it in any way I would vote wholeheartedly against it, but I see this Bill not as infringing or weakening marriage itself but as simply remedying injustices which have appeared in it.
Let me take the three-year limitation introduced by Sir Alan Herbert's Bill in 1937. The three-year limitation was a bar on a petition except when there was a case of exceptional hardship or exceptional depravity. Let me tell your Lordships how it worked in practice, because I sat in many cases where such applications were made, and I gave a judgment in Bowman v. Bowman which was reported in 1949 Probate. These were the sort of cases we had. Within a few days or weeks of marriage, the wife went off to
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her former lover and lived with him. The husband was left alone; and the wife became pregnant by her former lover. Needless to say, I granted leave at once: the marriage had irretrievably broken down.
Then there was the reported case in 1980 which was heard by my learned friend Lord Justice Ormrod. There was a honeymoon, a perfectly heterosexual relationship; and after three weeks the man went off with a male cousin, committed homosexuality with him, and discarded his wife. Of course, leave was given at once to present a petition even though a few weeks only had elapsed. Those are the sort of cases in which we gave leave. If I rightly think back—and your Lordships may read my judgments—whenever the marriage had irretrievably broken down within the three years we gave leave to go on at once. Here we come to the same test as is in the modern law. If it has irretrievably broken down, then do what you can at once to rid the parties of the impossible position which they are in.
I would agree with the practice in Scotland. Do not put any time limit at all on the matter. When the marriage has irretrievably broken down, whether it is in six months, or nine months or two years, let the petition be then filed. Mark you, having that three-year or even one-year limitation does not bring the parties together again. There is no mending of the marriage: they have only to wait until the two years or the three years are up, whatever it may be. It does not deter the breakdown; it just defers the formal finding of it.
I sympathise with what my noble and learned friend Lord Rawlinson says. In a way it is putting a mark on it, a one-year limitation. In a way I can sympathise; I do not mind it. I am quite agreeable to the Bill as it stands, but I am not sure that the better way would be to follow Scotland and put no time limit at all on it. If the marriage has irretrievably broken down, let the party petition for divorce. That is on the time limit.
The next and much more important matter is the question of maintenance for the first wife to the hardship of the second wife. This all stems from a section in the 1973 Act which provided for the order for maintenance in respect of the first wife. Imagine for the moment that the case involves an innocent wife and a guilty husband who has gone off. The duty of the court was to put the parties, so far as practicable and having regard to their conduct so to do, in the financial position in which they would have been had the marriage not broken down and if each had properly discharged his or her obligations and responsibilities to the other. Taking the instance of the innocent wife and the guilty husband who has gone off, the words of that section are imperative: you have to put the first wife in the same financial position as she would have been if the marriage had continued, so that she need not go out to work. She can go on and say, "You must pay me and keep me in such a good financial condition as if the marriage had not broken down".
That is an appalling provision when you remember that by law there has been a divorce enabling remarriage, so that the first wife has no common law claim to maintenance or to a roof over her head. The husband has married a second wife, by permission of the law, and he has all the responsibilities to her of

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keeping a roof over her head, bringing up the children and maintaining her. He has all those responsibilities. How wrong it was, unknowingly, for Parliament to say that the husband has still got to pay the first wife just as if nothing had happened!
I have taken the case of the innocent wife. What about the much more frequent case when both parties are to blame? How far is the first wife's conduct to go in diminution of the case for maintenance? There is trouble about that with our case law. My noble and learned friend the Lord Chancellor is quite right. We had a case called Wachtel v. Wachtel. My noble and learned friend Lord Roskill was also involved. We agreed on the judgment, and what we said was that we wanted an end to all those innumerable cruelty cases when each side charged the other with cruelty, whether it was throwing a kettle at the husband or using some swear words. Those cases used to rake up pages and pages of particulars of frivolousness and they took days and days to try—nearly always at the expense of legal aid, so we all had to pay for them—simply to say who was to get the divorce which both really wanted. They were doing all that in order to have a better claim for maintenance or for access to the children.
We wanted to get rid of all that situation. Therefore we said: "Don't go into conduct at all in all those ordinary cases"—these are Lord Justice Ormrod's words, not mine—"when it is obvious and gross, because they are easy and simple to inquire into". We did not want to put it in the words of a statute. We just wanted to show that one ought not to go into all those matters. If it is the wife's fault and she has gone off, then she ought not to be entitled to maintenance. If there are children, that is another matter.
I am saying all this to show that I am very glad that the section is to be repealed about putting the wife in the same financial position. Instead there are comprehensive statements so that you are, first, to have regard to the children, provided that the husband has to pay, then see whether it is inequitable. See, also, about the earning capacity of the first wife. If she is a youngish woman she ought to go out to work. All those matters will now be left open to the court, the children being the primary responsibility.
It has been asked: is it wise to leave all that discretion to the judge? Each judge or registrar will have a different view, and so on. I do not see any way out of it. This is essentially a matter where the circumstances vary so much in every individual case that you must leave it to the individual judge to decide. The guidelines are quite clear enough and quite good enough in the proposed clause of this Bill.
I have dealt with conduct. Let me now say just a word about reconciliation. Years ago, in 1946 or thereabouts, when I was chairman of a committee, we considered all these matters of reconciliation. It is quite unreasonable, or even impossible, to operate by compulsory means. Reconciliation or conciliation must be attempted at an early stage. The right stage is before the parties go to a solicitor. Let them go first to the Marriage Guidance Council. When they go to a solicitor, let the solicitor see whether there has been an irretrievable breakdown. Let the solicitor inquire into the marriage and ask: "Isn't there a chance of you coming together? Why don't you go to a marriage
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guidance counsellor?". That is what I think the greatest number of lawyers do now, and that is the best way of seeing what you can do to achieve a conciliation.
I do not think that any statute or any provision will do anything about it. Conciliation should be attempted at the early stages, before the marriage has broken down. It has been questioned whether our procedure has become too simple and easy. You do not now have to go to a High Court judge and go through that formality. You sign an affidavit and, if there is no objection, the divorce goes through. Having dealt with no end of undefended cases in court, which went through as mere formalities, I am quite sure that this special procedure, as it is called, this ordinary procedure, is an excellent one and is the right way to dissolve a marriage when it has irretrievably broken down.
I should like to say one word about the courts. In 1946, when I was chairman of that committee, we had a large body of evidence asking: "Ought we to have family courts specially for the purpose?" I am very glad that my noble and learned friend the Lord Chancellor said that, yes, he is considering them. I hope that he will consider them and that the outcome will be that we shall have family courts.
I am not sure whether they ought to be staffed with a chairman and two laymen—a man and a woman. They ought to be differently staffed. They ought to be persons who are not too legal, with humanity and not going by all these precedents. There ought to be a tier of appeal—because these matters are so vital—dealing with all those important things such as access, custody, property and the like. There is a wealth of jurisdiction upon the subject, and I am very glad that my noble and learned friend is to look into the present system.
Sometimes, cases of the first importance are dealt with by registrars in the county courts, whereas they ought really to be dealt with by a High Court judge who is specially versed in these matters. I gather from what my noble and learned friend said that this will be looked into. However, I would make this plea, coming back from all those years ago. Is it not time that we had family courts, properly staffed, to deal with these vast and important matters which affect so many people in the land, with all their troubles which are so heartrending and difficult to deal with? You can never tell what is right or wrong. You simply hope for the best in giving one parent or other the child. There is no law about it. You have to use your discretion hoping that, in the end, your decision will be right. So I suggest that family courts should be considered for these cases. If I thought that this Bill would weaken the institution of marriage, I would vote against it at once. But this Bill will simply remedy injustices which are there and, for that reason, I wholeheartedly support it.
6.38 p.m.
Baroness White: My Lords, I intervene briefly in this debate because I have found myself out of sympathy with some of what appear to be the main provisions of the Bill which is before us. I listened with the closest attention to the noble and learned Lord the Lord Chancellor and also to the noble and learned Lord, Lord Rawlinson, but I am still not entirely

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reassured. As the noble and learned Lord, Lord Rawlinson, kindly mentioned, some 30 years ago I introduced through the fortune of the ballot in another place the first major divorce law reform Bill, following the milestone legislation that was introduced and carried by Sir Alan Herbert in 1937. I was, of course, of a generation which was brought up on his entertaining, but profoundly serious, book Holy Deadlock.
My Bill was introduced in 1951—a critical electoral year for the Labour Party. In spite of an overwhelming majority in its favour on Second Reading, the late Herbert Morrison was fearful of the possible electoral effect in the country if it were passed. He indicated to its supporters, with great lucidity, how he would take steps to block its further progress. Abetted by the then Attorney-General, Sir Hartley Shawcross, he fobbed us off with one of the most divided Royal Commissions in history. I am afraid that even after the passage of the years my indignation at the way we were treated has not entirely evaporated. In consequence, legislation substituting breakdown of marriage as the primary justification for divorce had to wait, as has been mentioned several times in this debate, until 1969. Needless to say, I was happy that at long last this provision reached the statute book.
May I deal with just one or two of the matters that concern me about the Bill which is before us? I am far from happy with the proposition that there should be a one year complete bar to the presentation of a petition for the dissolution of marriage. It seems to me that this makes the worst of all possible worlds. I can understand, from the explanation very clearly given by the noble and learned Lord the Lord Chancellor and referred to by other noble Lords, that the three-year period, discretionary power being given to the court, is difficult to enforce. But surely a one-year period is unsatisfactory. It is neither one thing nor the other. A successful marriage—in the experience of most of us, I would suppose—demands persistence, perseverance and hard work. What encouragement is it to any couple to exercise these qualities if the law takes such a short-term view?
In former days, there was at least the tenable proposition that serious sexual incompatibility could not with propriety be discovered before entering into the married state. Nowadays this simply is not so, even in the most respectable quarters. I simply do not believe that people who have entered responsibly into matrimony can be sure, within a twelvemonth, that they have made an irretrievable mistake. If they are so convinced, they can separate, but they should do so knowing that they must make their own arrangements for at least another year—that is, if one has any time limit at all.
Having listened to the debate this evening, I have come to the conclusion that the Scottish provision of no time bar is probably the most sensible. Then you do not pretend. It appears to me that to have a period as short as one year must indicate to the public that Parliament really does not care one way or another whether marriage matters. But for those of us who still believe that marriage and the family are among the most worthwhile relationships, one year seems to me to be, as I have said, the worst choice of all. I trust,
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therefore, that at the Committee stage we can very carefully reconsider this suggested proposition.
I would suppose that all of us are agreed nowadays that if a marriage really does not work it should be terminated as fairly and decently as possible. But are the changes proposed in the Bill really conducive to fairness? I am not usually a passionate feminist, but what I have read of the commentaries on the Bill convinces me that its provisions could be strongly detrimental to many women other than young career women who reach marriage and then divorce without having any children. Most of us have seen the Family Policy Studies Report which makes it clear that the majority of lone mothers with young children are subsisting at a very low level of income, with a significant number relying on supplementary benefit. Surely this is not a satisfactory basis for bringing up children if you can possibly avoid it. At the other end of the age range, a woman who has brought up one or more children to the age of 18 cannot but have lost in the careers race, unless she has exceptional resilience and ability.
It is not clear to me that, as the Bill stands, justice is likely to be done to those women who find themselves in such a position, particularly taking into account, as the right reverend Prelate remarked. the state of the labour market, the low level of women's earnings and the complete uncertainty about the ability of people, and of women in particular, to comply with the proposed revision of Section 25(2)(a) under which they will have to take steps to increase their earning capacity in ways which, in the opinion of the court, it would be reasonable for them to take.
As I understand it, once matters are settled, there seems little chance of later readjustment, whatever the circumstances. In other words, the clean break, which is the intention of this proposed legislation, does not seem to me always to be attainable with reasonable justice for both sides. The noble and learned Lord the Lord Chancellor indicated that he considered that a clean break would be attainable in a minority of cases, but he did not, as I understood it, make it quite clear in what circumstances he considered that this would be achieved.
Finally, there is the reference in Part II to conduct: I refer to Clause 3 and Section 25(2)(g). This seems to me again to be an extraordinarily difficult area in which to reach sound decisions. Unless it is demonstrably outrageous, those of us concerned with earlier reform were of the view that conduct in marriage is extraordinarily difficult to judge fairly. There are even situations in marriage in which nothing is more desperately exasperating than the worthiness of a "worthy" husband or the "virtue" of a good wife.
We must be grateful to all those who have laboured on the Law Commission and the various other reports but, as the Family Policy Studies Report makes clear and as the noble Lord, Lord McGregor of Durris, most admirably described, there are still many gaps in our knowledge about what really happens and what, therefore, it is really desirable for us to endeavour to legislate about.
This Bill is a lawyers' bill rather than a social workers' Bill. We have to legislate, but I would hope that the noble and learned Lord the Lord Chancellor

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might consider the pleas which have been made for possible further consideration of some of these matters. I should be very much less concerned about the inadequacies of the Bill if he could indicate that he would consider most seriously the pleas which have been made for family courts. I believe that many of the matters with which this legislation is concerned cannot be settled by ordinary judicial procedures and that the family court, with the right kind of advice at its disposal, would be more likely to bring about the justice and fairness to all concerned which I am sure we greatly desire.
6.48 p.m.
Baroness Faithfull: My Lords, the Conservative Party manifesto put forward the proposal to improve family law. It also put forward the proposal to support the family. The Bill which is before the House today is not a comprehensive reform. It is an important Bill but one hopes that it will be the precursor of wider and more imaginative reforms, to which I shall refer at a later stage.
First, may I deal with Part I of the Bill which removes the discretionary bar of three years from the date of marriage to the presentation of a petition for divorce and substitutes an absolute one year bar. I agree with the reduction from three years to one year for four reasons. First, if a marriage has broken down within one year and the couple are not physically living together, the period of three years while waiting for a divorce prolongs the bitterness. This is helpful to neither partner and does nothing to re-establish the marriage. It has to be remembered that at present with the three year waiting period petitions for judicial separation have increased. Half such petitions are made by couples who have been married less than three years. Under the present law these couples may go through two stages: judicial separation; and, three years later, a divorce.
Secondly, if a couple for housing, financial or other reasons, continue to live under the same roof in disharmony until the three years is up, they rarely take advice or conciliation at that stage. It can happen—and has happened—that, in an attempt to make the best of a bad job, almost unwillingly a child is conceived who later is the subject of dispute and faces a disrupted life. Reference has been made to Scotland, where there is not the three year ban. Within seven years the figure of divorces per thousand of the married population is the same as in England and Wales. This suggests that the three year restriction postpones but does not avoid divorce taking place.
Fourthly, under the three year rule a petitioner may be given leave to present a petition on the grounds of exceptional hardship or depravity on the part of the respondent. This may encourage would-be petitioners to vilify the respondent in order to obtain a divorce before the three years are up. For those four reasons I support Part I of the Bill.
Part II of the Bill deals with the financial consequences of divorce. I cannot think that the eventual outcome of this Bill is any different in principle from the Matrimonial Causes Act 1973. I suggest it is more a matter of emphasis. The present
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Bill places greater emphasis on children's needs. I quote:
"First consideration is given to the welfare, while a minor, of any child of the family who has not attained the age of 18 years."
I support the noble and learned Lord, Lord Elwyn-Jones, in questioning the age of 18 years. I think probably 21 years would be a better age, considering what our education policy is in regard to grants for students, for instance, up to the age of 21 years.
With regard to financial relief, it is surely impossible to devise rules which take sufficient account of the variation of individual circumstances. In this age women are calling for equality of opportunity with men. If when children are off her hands and it is assessed that she has the capacity to earn, then is it not reasonable for her to be accorded the dignity of doing so? I am sure that many of your Lordships will have had copies of an enormous number of letters as I have had. I think that the letter that impressed me most was from a woman who does not have a professional background, who has been divorced for eight years, and who resents taking money, or being thought to be taking money—which she is not—from her husband. She prefers to be independent.
There are those who do not accept this Bill. I could wish it was being passed against the backcloth of other changes which I believe would then make it acceptable to all. I come to the question of family courts, to which so many of your Lordships have referred. As the noble Lord, Lord McGregor, has said, this was referred to and recommended in the Finer Committee report. I believe that if we were to have family courts, and if the questions of maintenance and the care of the children were to be dealt with by family courts, then each case could be dealt with individually on its merits and on its needs. I understand that Judge Jean Graham Hall has costed this and that the cost is not as great as Ministers and civil servants would have us think.
If family courts were to be set up along the lines of the courts of Australia the settlement of the claims of husband and wife could be approached in an entirely different manner. Instead of a legal battle, there would more likely to be settlement by mutual consent with both husband and wife being involved in the discussions. According to the Queens land registry, this is proving to be a successful method of dealing with such cases. Both husband and wife and their solicitors are directly involved in discussion and negotiation.
The Matrimonial Cases Procedure Committee chaired by Mrs Justice Booth reports next July. For the moment we welcome the consultation paper, where she again has recommended both conciliation and reconciliation. If when a marriage breaks down the case is referred at an early stage, as the noble and learned Lord, Lord Denning, said, then there is hope for constructive support to the family, possibly reconciliation, but at any rate a more kindly and more understanding conciliation.
I am bound to say that the inter-departmental report on conciliation is a disappointing and poor report. Consideration seems to have been given only to the saving of money in the short-term, arising, if I may say so, from some questionable costs—very questionable. I believe that the consultation paper issued by Mrs Justice Booth supports the conciliation services,

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and I much hope that in her final report next July this will be strengthened.
Finally, those of us who support this Bill believe in marriage, we believe in family life, and we believe that children need stability, continuity of affection and care. The Bishop of Birmingham wrote in The Times on Friday, 18th November:
"Easy divorce is no answer."
I would submit that harsh divorce does not lead to the stability of marriage.
6.59 p.m.
Lord Scarman: My Lords, I welcome this Bill. It is not a Bill of fundamental law reform. The fundamental reform in family law was, as noble Lords have already pointed out, fulfilled in 1969, when irretrievable breakdown was introduced as the sole ground of divorce. This Bill, properly considered, deals with the consequences of divorce or the breakdown, and contains some valuable pieces of law reform. But let us dispel at once any suggestion that there is any fundamental change in the law proposed by this Bill. All its provisions are completely consistent with the fundamental change in the law that was carried through in 1969.
The noble and learned Lord, Lord Rawlinson, and my noble and learned friend Lord Denning, good advocates that they are, have dramatically displayed to your Lordships the inequities of the existing law and the need for some law reform. It is therefore unnecessary to go over that ground except to remind your Lordships that we are discussing a Bill which is based on the recommendations of the two Law Commissions. As the noble and learned Lord the Lord Chancellor said, this Bill, in so far as it is concerned with the subject matter of the reports of those two Law Commissions, adheres to their recommendations. It is always a good rule in this House, and I hope in another place, to give very favourable consideration to recommendations of the two Law Commissions, perhaps to the extent that, unless they can be demonstrated to be erroneous or undesirable, they should have the benefit of the favourable consideration of the House. That is true of this Bill.
What does this Bill do? So far, I have noticed in the debate a good deal of eloquence on matters not covered by the Bill; a good deal of eloquence on the inequities which the Bill must remedy, but rather less attention to what the Bill proposes. Since there have been some tragic misconceptions abroad in this country as to the effect of the Bill upon married women, I will spend the few minutes during which I intend to detain your Lordships on directing attention to the Bill.
Part I substitutes for a discretionary bar of three years an absolute bar on divorce of one year. The essential piece of law reform in Part I is to get rid of an ugly and objectionable discretion which is causing embarrassment to judges and a good deal of hardship and bitterness to the parties whose marriage has broken down. Of course, one can have a view as to whether there should be any bar at all, granted the principle of irretrievable breakdown. If there should be a bar, for reasons one could well understand, should it be for one year, two years or three years? This is very
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much a matter of judgment and conscience and it is a matter on which one would hope the good sense of Parliament will ultimately reach a sensible solution. As to the removal of the discretionary character of the ban, that can only do good, relieve hardship and improve the purity of justice in this field.
I now come to Part II of the Bill. This is perhaps the most important part. It is certainly that part which has given rise to the greatest volume of misconception outside this House. There is nothing in Part II which need cause apprehension to the middle-aged or elderly married woman who has been deserted by her husband and who has no reasonable prospect of supporting herself either by earning or from her own resources. There is absolutely nothing to cause apprehension, as I shall very briefly demonstrate. The positive value of Part II is that it gets rid of certain errors that have crept into the law which have already been the subject of eloquent analyses by other noble Lords.
Let me now indicate what Part II does. It substitutes new guidelines for the existing guidelines which judges follow in determining whether there should be any, and if so what, financial support and property adjustment after divorce. These are largely based on or include the old guidelines but contain some new ones. Let me remind your Lordships of what they are. In the new Section 25—which substitutes for Section 25 of the 1973 Act—we find, first, that the judge is to give first consideration,
"to the welfare while a minor of any child of the family".
Nobody suggested that there is anything wrong with that. That is a first consideration. Are people really worried lest High Court or county court judges will forget that first consideration when dealing with subsequent questions affecting the wife and mother with whom the children are? Of course he will not. If he did, as my noble and learned friend Lord Denning knows, he would soon be corrected by the Court of Appeal.
What follows? Much of this is repetition of what is already in the law, but there are one or two matters of value, none of which is of the slightest danger to needy women who have been desertd by their husbands, and much of it is of very real support for them. The court must have regard to the resources of the parties to the marriage. The court must have regard to the needs—I underline the word "needs"—of the parties to the marriage. That is to say, in every application for financial support or property adjustment the judge must assess the needs of the parties. Of course, one of the needs of both husband and wife after a marriage has broken down may be a need arising after dissolution. That must be considered too, because those needs as well as the needs of the spouses in other respects have to be considered. Bear in mind that, throughout, the judge must look at all the circumstances of the case. Then the judge must take account of the disability, if any, of either party and of the contributions of either party to the marriage. He must also take account of their conduct. Your Lordships have heard how conduct comes in subject to the judge being satisfied that it would be inequitable to disregard it. There is a matter not yet mentioned—the right of the wife to have her financial support assessed on the basis, if it be the fact, that she may lose her chance of

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sharing in her husband's pension. All those are good, straightforward guidelines, containing no threat to the middle-aged or elderly married women.
We then come to new Section 25A. This would incorporate the "clean break". I was distressed to hear the anxiety of the noble Baroness, Lady White, on this part of the proposals. Although she has had to leave us, I hope I can say a few words which will allay her distress, very temperately put to your Lordhips' House but somewhat hysterically felt by many people outside the House. What is embraced by this nice piece of developing jargon, the "clean break"? Let me remind your Lordships. If the court thinks it is a case for financial support, it shall then,
"be the duty of the court to consider whether it would be appropriate so to exercise those powers",
on the basis that the financial obligations of each party to the other might be subject to a time limit, and only of course if to do so would be "just and reasonable."
Again here is a branch of the law, and here is a Bill, which of necessity confers upon the judge a very wide-ranging discretion, as one noble Lord has already emphasised. Is it to be thought that county court judges exercising divorce jurisdiction or High Court judges will overlook the limit on their power? They must do only that which is just and reasonable. Is it really so dangerous that you must not entrust to a High Court or a divorce judge the power to consider the possibility of termination? Do your Lordships really think that there is any risk there to women who would be left in penury after desertion—women unable for one reason or another to provide for their own support? Once looked at in those ways these misconceptions are, with respect, nonsensical.
There is, of course, the power which has disturbed some—and which I think disturbs the noble Baroness, Lady White—that the court may direct that no futher application for maintenance shall be made by a spouse who has made an application. Again this is not an inevitable guillotine hanging over the neck of a penurious and deserted wife. It is a discretion given to a judge of the Family Division or a judge exercising family jurisdiction. He can do it in cases where it is appropriate. He already has the guidelines which I have enumerated. He already has the duty to look at all the circumstances of the case.
Everyone agrees that with the emancipation of women there are an increasing number of cases in which women can and do wish to look after themselves after the break-up of their marriage. All that this provision does is to empower the judge in cases where it is appropriate to impose the so-called clean break. I say no more about Part II of the Bill, save to implore your Lordships both now on Second Reading and later in Committee to pay attention to what the Bill says and not to the misconceptions which outside this House have been allowed to develop.
I would make two other points on this Bill. First, very little has been said in this debate about the valuable provisions enabling the courts of England and Wales and Scotland to order financial relief to a woman whose marriage has been dissolved by an overseas decree. Of course there will be jurisdictional conditions to be met; of course there is a filter to ensure
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that the marriage, the married life or the woman herself has real connection with this country. That is a very valuable provision indeed. It has been a dangerous and miserable gap in our law. Part III of the Bill bridges that gap.
Part V of the Bill has been seen by some—and I confess I am one of that number—as paving the way towards a family court. Like many of your Lordships, I was very pleased to hear the noble and learned Lord the Lord Chancellor tell us that family courts were to be examined. Like others, I was greatly heartened by what we have so far learned of the work of the Booth Committee on matrimonial causes procedure. It appears that we are at last seeing a slight movement in the log jam which has prevented us from proceeding towards family courts.
The right reverend Prelate the Bishop of Rochester, the noble Lord, Lord McGregor of Durris, and even I think also the noble and learned Lord, Lord Elwyn-Jones, made speeches which were really directed to the issue of the desirability of a family court. To that extent, with respect, I profoundly agree with them. I am very sad that this Bill contains no provision for a conciliation service. I am very sad that it contains no attempt to deal with the problem of the occupational pension and the right of the wife who has been divorced to have some share of that pension. I am also concerned—again it has not been mentioned in this House yet—at the very wide discretion inevitably conferred upon judges by this and any other legislation in the same field. I see that none of these matters are perhaps ripe for inclusion in this Bill. I certainly should not regard any of them as a reason for not proceeding with a tierce loyalty with this Bill to ensure that it passes to another place, enshrining the principles of reform which it does at the moment.
Having said that, I hope that this Bill will help pave the way towards a later consideration of fundamental law reform in the procedural field comparable only with the fundamental law reform in the substantive field of 1969 and completely suited to it. This is a good, healthy and just Bill, relieving hardship and doing nobody any harm at all.
7.17 p.m.
Lord Hatch of Lusby: My Lords. it has been a privilege to listen to the learned legal opinions stated this afternoon. I do not intend in any way to follow that trend. However, I pick up the point made by the noble and learned Lord, Lord Scarman, regarding pensions. I do not have time to deal with this tonight, but it seems to me—as it appears to him—to be an unwarranted omission from what the noble and learned Lord has described as a Bill that does nobody any harm, and one which may do some people some good. The Bill could do more people some good if it included the provision that he mentioned—the right of a divorced woman to participate in the pension.
I do not attempt to deal with the Bill on legal grounds. But we have seen from a number of speeches from both noble Lords and noble Baronesses that the real issue is social rather than legal. Some speeches made this afternoon seemed to me to be a long way away from the real social world in which we live. In debating the Second Reading of this Bill, it would be

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wrong for us in this House if some of the fears that have already been expressed in examining the Bill from the social angle were not at least put into the pot. We hope that in the Committee and Report stages the Bill's provisions can be further examined and possibly amended.
I make this point in particular. There is no party debate on this issue. We are responsible for the happiness or unhappiness of millions. We know—and it is a truism to say—that we cannot by law create married happiness. The same applied to the Race Relations Act. We cannot create racial harmony. But what we can do, and what it is our responsibility to do, is to diminish the unhappiness and in this kind of circumstance to frame laws in such a way that people are protected.
If I may, I should like to put before the House some of the fears that have been expressed; and I am sure that they have been expressed to most noble Lords who have put down their names to participate in the debate. As the noble and learned Lord on the Woolsack so lucidly explained to us at the beginning of the debate, the Bill is the product not just of Government action, but also of the Law Commissions, the Booth Committee on matrimonial procedures, and the courts. I have no doubt that each of them did their utmost to find a form of words which would create a better atmosphere in the unhappy period which follows any divorce than is at present the case under the law, the 1973 Act.
But there are many people, and indeed many legal people, who would say that the Bill is a part of a trend, is the latest development in a trend. It is a trend which has begun to make it more difficult for wives to obtain and enforce injunctions against violent husbands. It is a trend to reduce the importance of the welfare of children in comparison with the father's property rights, as they are claimed, in deciding who shall occupy the matrimonial home; a trend to reduce the rights of dependent wives to maintenance on divorce, to create procedural obstacles to the applicants for injunctions and maintenance, almost all of whom are women, and to threaten the use of legal aid in matrimonial proceedings.
Not for a moment am I suggesting that I am capable, or desirous, of supporting all those criticisms. I simply draw to the attention of the House the fact that these criticisms are coming from responsible circles, and that when we come to examine the Bill in detail it is our responsibility to do so in the light of the criticisms that are being made on the kinds of grounds that I have mentioned.
I now turn to the more detailed parts of the Bill, and first I wish to refer to Part 1 and Clause 1. In the debate we have heard about the change in the minimum period from three years to one year. Many people would consider this to be a liberalising measure. In fact, the noble and learned Lord seemed to suggest that he had at least considered possibly introducing the Scottish provision in England and Wales, though I did not appreciate his reference to the danger that it might be used in order to dissolve marriages of immigrants who had simply married in order to attain nationality. But——
The Lord Chancellor: My Lords, I must say to the noble Lord that he must disabuse himself at once of any idea that it has anything to do with immigrants. The reference that I made—if the noble Lord is interested in the subject—was to a case called Vervaeke, in which I sat judicially. If the noble Lord cares to look at the facts of that case, I do not think that he will be edified by them, but he will at least know what I meant.
Lord Hatch of Lusby: My Lords, I of course unreservedly withdraw any suggestion that the noble and learned Lord was talking of immigrants if he says that he was not. That is what I had interpreted his words to mean. I am very glad that he intervened and made the position absolutely clear; and I apologise to him.
On the question of reducing the period from three years to one year, there is one point that worries me. To give a man and woman the right to dissolve their marriage before the three years is up might be liberalising, but I am concerned that, with the introduction of the period of one year, there is to be an absolute bar on any petition within that one year. I am concerned about this proposal because I am certain that we all know of cases where early in a marriage it turns out that one of the parties—usually the man—is found to be violent. As a layman I am concerned about where this absolute bar on the submission of a petition of divorce within the first year could lead. Here I am thinking in particular of working class circumstances. where the woman has nowhere to go, the police will not interfere because it is a domestic issue, and she is unduly exposed.
At the moment we have the three-year rule except, as has been continually pointed out, where the leave of the court is granted. But, as I understand it, the change proposed in Clause I will remove the possibility of the leave of the court being granted for a petition to be submitted during the first year of marriage. If we do not go as far as the Scots—and I certainly support those noble Lords who have said that the proposal might well have a beneficial effect socially—it seems to me that the court should be given some discretion to provide for the protection of such women.
Much has been made of Clause 3, in Part II. Despite what the noble and learned Lord, Lord Scarman, said to reassure us. I believe that there is a danger in the substitution of Clauses 25 and 25A for Section 25 of the 1973 Act. This comes about in the following way. As the noble and learned Lord on the Woolsack has pointed out to us, the first consideration is to be that of the welfare of the child. I believe that we would all agree on that.
But then there are certain guidelines added to that first principle. There is the desirability that the parties become self-sufficient. This is where I find a gap between the legal interpretation of the Bill and the social reality. How many women—and they do not have to be old or middle-aged—spend 10, 15 or 20 years doing nothing but home-making, looking after their husbands, bringing up their children, making homes for their families, only to find that their husbands then leave them? During that period, the woman, who may be no more than, say, 40, has been denied the opportunity of outside occupation, outside

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education, external training and fitting herself for what the Bill describes as the desirability of the parties becoming self-sufficient. Surely this is not good enough.
While it may very well be the case, in particular in middle and upper-class societies, that the woman has had sufficient education before she married, in very many more instances that will not be the case, and the question of self-sufficiency is totally unreal to a very large number of women who will be left in this position. Note, too, my Lords, that in the clause the court is empowered to dismiss outright—and I stress the word "outright"—an application for maintenance.
I wish to deal briefly with Clause 5 which empowers the court to direct that the party shall not be entitled to apply for an extension of a maintenance order of a limited duration. Again, circumstances change. Surely, there should be some more discretion rather than this cast iron prevention of a court extending a maintenance order as the circumstances change. I suggest that this clause, like Clause 6, which similarly deals with maintenance variation, could be loosened up to give a great deal more discretion and less guidance to the courts.
I have already mentioned the pension issue which, I understand, comes in Clause 7 under the inheritance provisions. I shall simply say that I agree wholeheartedly with what the noble and learned Lord, Lord Scarman, had to say about the right of a wife to participate in her husband's pension after divorce. The financial provision on the death of the husband is something that we might examine more closely in Committee.
Clause 8 in some ways worries me more than any other. Paragraph (f), on the contributions made by each of the parties to the welfare of the family, is excellent. It improves greatly the recognition of the participation of the wife in an unpaid capacity as the homemaker. But that is followed by paragraph (g) which again introduces the old idea that the conduct of the parties should play a part in the decision on maintenance following a divorce. That, again, goes back, as I understand it, to the old concept of the fault.
The Lord Chancellor: My Lords, I am sorry to interrupt the noble Lord again. He has got it absolutely wrong. Under the existing law, which I hold in my hand, conduct is relevant. The words in Section 25(1) of the existing law say:
"so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so…".
That is the present law. The change is that they are to regard conduct if, and therefore only if, it would be inequitable to disregard it. Far from reintroducing something, it is putting an added restriction upon it. I hope that I have at last made it clear to the noble Lord.
Lord Hatch of Lusby: My Lords, yes. Again, I accept the noble and learned Lord's interpretation. All that I would say to him—I think he would agree—is that the question of fault within the whole of our matrimonial laws has declined over the past decade. It would seem to me that the addition of this clause, with the words that the noble and learned Lord read out:
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"the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it,"
is bringing back at least a danger of the old concept of fault. I remind the noble and learned Lord of the cases that have been quoted in support of what I say. The noble and learned Lord, Lord Denning, quoted the case of Wachtel v. Wachtel in 1973. But, in October last year, there was the Robinson case—I am sure that the noble and learned Lord is aware of it—in which it was held that the conduct should be taken into account in assessing a wife's maintenance when to disregard it would be a reasonable person's sense of justice. The Court of Appeal, in this case, reduced the maintenance to be paid to a wife who had a young baby simply because she had deserted her husband.
I remind him further of the case of Richards in July this year when, again, the conduct of a wife in leaving her husband was given greater importance than had previously been thought correct. There are some members of the learned profession who, as I am sure the noble and learned Lord knows, believe these two cases, particularly the second, are undermining the principles that were established by the Wachtel case in 1973.
The Lord Chancellor: My Lords, I really must interrupt again. I sat judicially in Richards. The noble Lord has given a travesty of what was decided. It was a question of an interim injunction ousting a husband from the matrimonial home for which it is necessary, and always has been necessary, for the wife to make some sort of a case. It was decided unanimously by five of the noble and learned Lords who sat, I being one and the noble Lord, Lord Scarman, being another, that she had not begun to get off the ground. It is a travesty to describe it in the way the noble Lord has.
Lord Hatch of Lusby: My Lords, that may be the case but the travesty is not mine alone. It is a travesty supported by the Legal Action Group, as I am sure the noble and learned Lord is aware, which has quoted specifically the three cases I have used to show the way in which there is at least a danger that the old concept of fault within the matrimonial causes is being reintroduced. I say no more than that, in the hope that the matter will be raised and debated by much more learned Lords than myself at the Committee stage. I raise it because I hope that it will be recognised that there are some members of the legal profession who believe that this is a danger.
I must wind up my remarks, although I have to remind your Lordships that I have not been speaking all the time since I rose. This Bill has been described—I had better give the exact quotation lest it be challenged—in the bulletin of the Legal Action Group as part of a middle-aged, middle-class, male backlash based on the false claim that women have been receiving more favourable treatment in the courts. It is not for me to criticise the courts. I simply draw to the attention of the House that this is an opinion stated by a legal body. It is our responsibility to ensure, when we come to examine the details of the Bill, that that kind of accusation cannot stand up. I believe that it would not have been made in those terms unless there had been fears within the legal profession, as well as among those directly affected by

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our matrimonial law. If those fears had not been there, they would not have been expressed. I bring them to the House not in any censorious manner but in order to put the quite legitimate fears that are raised among ordinary laymen when members of the legal profession describe the Bill in these terms.
Nobody would doubt the fact that men generally hold the economic assets in a marriage and that it is the men who are usually violent towards women. Women need the help of the courts to redress both the economic imbalance and to obtain protection against violence. The value of this law will depend upon how effective we are in giving a remedy to women in divorce so far as their economic future is concerned and so far as their own protection is concerned if they find themselves as the abandoned woman.
7.40 p.m.
Baroness Macleod of Borve: My Lords, I am glad to follow the noble Lord, Lord Hatch, because I agree with him that this is not just a legal Bill; it is a human Bill. Indeed, that is what I think the noble Lord said. I am most grateful to my noble and learned friend the Lord Chancellor for introducing the Bill. For many years I, in company with many other people, have been worried about the financial strictures of the 1969, the 1973 and other Acts, and have felt that much more flexibility should be given to those who adjudicate on separation orders and on divorce proceedings.
My noble and learned friend has, as usual, made a complicated Bill as easy to digest as is possible. Before speaking to the Bill I should like to make a passing reference to the work of the Order of Christian Charity who are initiating pre-marriage counselling. I hope that this idea—which they hope to further—prospers.
Today in this Bill we are dealing with broken marriages and it might be of interest to know that the recently published figures show that in England and Wales in 1982, 51.8 per cent. of marriages were religious marriages and 48.2 per cent. were civil marriages. Indeed, 177,027 were religious marriages, and 165,089 were civil marriages. Those are the figures for last year which came out last week. So tonight—and we shall be doing so throughout the rest of our discussions on the Bill—we are dealing with the breakdown of all marriages, whether a promise was made in church or not. I was lucky in that I was able to be married in church for both of my marriages and I consider that that was of tremendous benefit to both marriages.
Since 1973 so much has happened in our society; for instance, far more women have a job before marriage and obtain qualifications which can be valuable later on. That, in turn, means that more women, who are often mothers, are able to leave their husbands—in some cases their husbands and the children. I have known many of those very tragic cases.
I turn to the Bill and to Clause 1. It is suggested in the Bill that the bar which prevents spouses from seeking a divorce should be reduced from three years, as now, to one year. I find this provision the one upon which I may beg to differ from my noble and learned friend the Lord Chancellor. I think that in all marriages there is a period of honeymoon during
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which a couple appear to everybody to be on "Cloud 9" living for the present and often oblivious of the future. They are blissfully happy and presume that their ecstasy will last for ever. The honeymoon seems to come to an end with the first quarrel, usually after about nine months of marriage. If the couple are very young, if they are also, because of immaturity, rather unstable, if there is no baby on the way, and if one or both are unemployed, then the temptation to seek a divorce after a year might be a very real one. I believe that if they had to wait a little longer it is more likely that their affection for each other might well weather the temporary storms. Therefore, I should like to suggest, as other noble Lords have done, that the period should be for more than one year. I would perhaps suggest two years. There are also, of course, cases—usually occurring in the armed services—where the spouses are separated soon after marriage and the strain leads to quarrels. I believe that they should be given a longer time to adjust.
I turn to Clause 3. Divorces are sometimes, though rarely, by mutual consent and unfortunately money is the root of much bitterness and argument. Who shall have what? Who shall pay for what? How much can be afforded by either spouse? How are any children to be maintained? Up until now financial arrangements have been based on trying to maintain the standard of living which the parties have previously enjoyed. This has led to much hardship and, I think, to unfair discrimination in favour of the wife. If there are no children then it seems right that the court should, by order, contrive a clean break so as not to inhibit either party in the future. But where children are involved they must—and this is the intention of the Bill—be the first consideration; they should receive maintenance (from either parent) before maintenance for the ex-spouse, and the cost of their financial upkeep should have priority in the mind of the court. Where an ex-spouse is capable of keeping himself or herself it seems fair that the maintenance should not be too prolonged and that at the court's discretion it should cease.
I should like to ask my noble and learned friend the Lord Chancellor one practical question, the answer to which I am not aware. As a magistrate sitting on separation cases I granted orders, but I never actually saw the orders. So whether they were on one piece of paper or whether the order regarding the children was on a separate piece of paper, I do not know. But it seems practical to me that, if one were going to order a wife's maintenance to cease, that order should be torn up forthwith, and that the order for the children's maintenance should be on a completely separate piece of paper.
Paragraph (g) in Clause 3(2) has been referred to by many noble Lords. It refers to the conduct of the parties being taken into consideration, only where applicable, by the court. It seems to me that spouses are prepared to agree that it takes two to tango, that it takes two to conceive a child, but spouses will not admit that in the vast majority of cases it takes the behaviour of two people to decide on divorce.
As regards Clause 8, I am glad to see that the far-reaching requirements of the court in Clause 3 shall also obtain under Clause 8 in the magistrate's court. It will, I feel, mean that magistrates will be able and, indeed, will have to inquire more closely than before

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into the problems of the couple appearing before them for a separation order. I suppose, like other noble Lords, especially perhaps the noble and learned Lord, Lord Scarman, it cannot be a part of the future Act to ask the couple if they have sought professional help with a view to reconciliation. In my court I used to ask them, and sometimes they agreed to try. So many agencies do such brilliant work in this field that I would like, if it were possible, to make it part of the Bill.
Very briefly, I should like to refer to Clause 16 in Part III of the Bill. This clause deals with the matrimonial home. It has always seemed to me that the home—the bricks and mortar which make a base for a child or children—is of enormous importance to the stability of their childhood. We all hope that home is where both parents live, but in the event of a divorce, I think that if it is possible for the home to be kept and lived in by the caring parent, it will make a considerable contribution to the welfare of the child. This clause seems very adequately to meet all the problems.
This is a very important Bill. The unhappiness of a broken marriage,
which leads to divorce, is felt by the spouses, by their children and by all their family and friends. The complexities of human relationships mean that every case is different and every case is special to those involved. Marriage and family life are a very precious part of our society and anything which anyone can do to underline the seriousness of the undertaking to our young people should be encouraged.
We cannot pretend that this Bill—or any other—can meet all the problems. But my noble and learned friend the Lord Chancellor has had the courage and the humanity to bring it before us today, and I wish it well.
7.52 p.m.
Lord Roskill: My Lords, in view of the hour and the number of your Lordships who still wish to speak. I shall endeavour to be as brief as I can. May I begin where the noble Baroness, Lady Macleod, left off and offer respectful congratulations to my noble and learned friend the Lord Chancellor upon his having introduced the Bill so early in this Session, and also to congratulate the Law Commission and everyone else who, over these last years, have worked to produce what has gone into the Bill.
Of course, as many of your Lordships have said, this Bill is not perfect, and of course opinions will differ as to the merits of various proposals. But I venture to suggest to your Lordships that this Bill's great merit is not so much that it is a great measure of law reform as that it seeks to learn from the experience which has been gained in the operation of the law as that law has developed in the past 15 years or so, or rather less, since the great reforming statutes instituted in 1969 and 1970 by the Law Commission in my noble and learned friend Lord Scarman's day, which changed the law radically, got rid of the old concept of matrimonial offence, and introduced the new concept of the irretrievable break down of marriage. This Bill, for the first time, seeks to put right that which experience has shown in the courts has gone wrong in the working out of that legislation.
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I have always ventured to think that the jurisdiction of the courts, whether the High Court, county court or magistrates' courts in family matters is the most sensitive of all judicial jurisdictions. It is even more sensitive—and this is saying a lot—than having to decide whether someone should be subject to an immediate custodial sentence or whether, say, a particular accident case should be decided one way or the other. In cases of that type there is at least a possibility of the court being able to be reasonably certain that it has reached a right conclusion. But in jurisdiction in matrimonial disputes the courts are all too often faced with that recurrent judical nightmare: not what is the right decision, but which of the various possible options is the least wrong.
In these cases the courts are not dealing with one or two people only; they are dealing with whole families and have to make decisions which though on their face may appear only to concern an ex-husband or an ex-wife and one family, in truth are most likely to concern two, three or even more families according to the current relationships of the former husband and wife, each of whom may—and in all probability will—have joined forces with some other former husband and wife, with children sometimes extending ad infinitum more numerous than one would ever believe were genetically possible. Indeed, it was only last week that I learnt of a case which came before the Domestic Panel in Basing stoke Magistrates' Court, of which I am still privileged to he a member, where the various families concerned had between them no fewer than a dozen children, every one of whom was likely to be affected by that court's decision.
When one noble Lord indicated a few moments ago that those of us who sit in any court—whether it is the House of Lords, a magistrates' court on matrimonial matters, or somewhere as trial judges—are not sensitive to the social problems involved, I can only say with the utmost respect that it is because of the sensitivity of the Judiciary at all levels to the social problems involved that we are deeply personally interested and involved in these problems.
The pattern of the problems must vary infinitely and that is why the legislation must be framed in the most general terms, seeking to enjoin the courts as to the principles which they must apply, but at the same time leaving them free to apply those principles in the light of the special problems to which individual cases must inevitably give rise. I would venture to echo what the noble and learned Lord, Lord Rawlinson of Ewell, said a couple of hours ago, that Parliament must lay down the principles; but the courts must be trusted in the individual cases in the exercise of an enormously wide and far-reaching judicial discretion to apply the principles which Parliament has laid down.
There are many provisions in this Bill upon which one could comment. In the interests of brevity I shall single out a very few for special mention. Let me take first Clause 3 in relation to the High Court and county courts, and Clause 8 in relation to magistrates' courts. May I venture to echo what the noble Baroness, Lady Macleod of Borve, said a few moments ago, that it is a comfort to those of us who have been deeply interested in this work for a long time in both courts to see that what will now happen will enable both courts to administer the law in absolutely identical terms. That is of absolutely crucial importance.

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Each of these clauses enjoins the court to ensure that the welfare of the child is the paramount consideration. It is most welcome to see that on the statute book; but, of course, this has been the subject of judicial decision for more years than I care to remember and it is an illustration of what sometimes is not recognised, that in these matters very often the courts are very far ahead of the legislature in giving effect to that which is so obviously right.
Another improvement—and my noble and learned friend the Lord Chancellor has already mentioned this—is to remove the old provision—which could never have been more than a pious hope at best—that the courts were required to place the parties in the same position as if the marriage had not broken down. That was never feasible, if only for one reason: that one income has never been able to support more than one family unless one was dealing with that rare case of the millionaire with a large number of wives.
Still, on these two clauses, may I just say a word or two about conduct. I hope that the noble Lord, Lord Hatch of Lusby, will forgive me—and my noble and learned friend the Lord Chancellor has already intervened twice to correct him—if I say that he really has got the provisions of the new Bill wrong, for one reason or another. Some of your Lordships may recall—and my noble and learned friend the Lord Chancellor has already referred to this—the unhappy provision that persisted before 1969: those old contested divorce cases in which truth was a casualty on the first day of a 25-day case, and everybody was merely fighting madly not to tell the truth but over money or custody of the children, and no one could resist trying to tell the judge that his former partner was wholly unfit either to have any money or the custody of any child.
It was that situation with which my noble and learned friend Lord Denning and I and the late Lord Justice Phillimore were faced. The right reverend Prelate may recall that Lord Justice Phillimore, who unhappily died 10 years ago, was part author of the Church work, Putting Asunder and knew more about this than most of us. In the Wachtel case the three of us were faced with this problem: there were some—dare I use the phrase—old-fashioned judges of the Family Division who thought that the old concept of cruelty had been carried into the 1970 statute. It was quite plain on the language of the statute that that might be a possible interpretation and we had a cri de coeur literally from the judges of the then new Family Division, "Will you sort this out?"
The three of us set about sorting it out and, as my noble and learned friend has already said, that judgment was in fact a composite effort and we tried to kill the old concept of "conduct" for good and all. I believe—and I have watched this from my days in the Court of Appeal sitting with my noble and learned friend Lord Denning—that we succeeded. Indeed, we have succeeded to such an extent that there is now a body of opinion which thinks that perhaps the law has gone a little too far, and that the type of wife who milks her husband to go off with her new boyfriend sometimes is able to live off her former husband to a greater extent.
I personally believe that that is a rare case, but, if it
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does exist, the new provision, to which my noble and learned friend the Lord Chancellor drew Lord Hatch's attention a few minutes ago, will enable the courts to reflect. But conduct must not be, and never will be, introduced by a back door, otherwise you find yourselves introducing the old idea of matrimonial offence again by a back door, and, worse than that, saying to a divorced wife, "Well, I would have given you £100 a week, but because you have been guilty of some matrimonial misdemeanour I am only going to give you £50". That is almost turning adultery into a criminal offence for which a fine is the appropriate penalty. We have moved a long way from that, and I trust and believe that it will never come back.
Next, a word about "clean break". There has, as your Lordships know, been a slight difference of judicial opinion as to whether or not under the existing legislation there is power, say, where there has been an express agreement, to order a clean break in the ordinary straightforward divorce case. Who is right and who is wrong does not now matter in the slightest. There are obviously some cases where a clean break is desirable in the interests of everybody, and that power is now being given. But to suggest that that power is going to be used by the courts to penalise the devoted wife whose husband has deserted her after 20 or 25 years of married life and to leave her penniless, I am afraid is a suggestion of someone who really is wholly divorced from reality. The power to bring about a clean break is a power which I am quite certain is necessary, but it is a power that will be most cautiously exercised.
A word about Part III. Curiously enough, only my noble and learned friend Lord Scarman has referred to it. My noble and learned friend Lord Denning will remember from Court of Appeal days that there was a time about eight or nine years ago when we were occupied with the endless problem of foreign divorces, and whether or not they had to be recognised in this country. Some of them were obtained in circumstances—I hope I cause no offence in saying this—which were shocking by any ordinary English standards of justice, and yet because they were valid under the local law we had no alternative in private international law and after some of the statutes but to give effect to it.
What was the effect of that on scores of wives of immigrant population in this country who had come from overseas? They had found themselves divorced in some foreign country which I shall not mention, and because there were no divorce proceedings pending here our courts had no power whatever to deal with what were often very substantial quantities of matrimonial property. This is a much needed and most welcome reform.
Before I sit down may I add one other word? Much has been said this evening about family courts. I am not going to stray into that sphere because it is more perhaps a political than a legal problem. But I should like to take this opportunity—and I know that my noble and learned friend the Lord Chancellor will agree—to draw attention to the work that is being done in this field in magistrates' courts. In many respects the jurisdiction now exercised by the domestic panels of magistrates' courts is indistinguishable from the work which is done in the High Court or in the county court

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in matrimonial matters. It has the enormous advantage that it is not being dealt with by one lawyer sitting alone. It is being dealt with by two or three justices, all or most of whom will have been married and have brought up families, some of whom will have been through the traumas of the divorce court themselves, and who will be familiar with all the problems.
I have often thought that jurisdiction was conferred in 1978 really for policy reaons in order to ease the burden on the Family Division and on the county court, but I have often thought that if we were going to move in the sphere of family courts and try to extend the much-needed conciliation services, then, rather than destroy the jurisdiction of the magistrates' courts, which it has been suggested should be destroyed and everything put back in the High Court or the county court, we should do better—and the Lord Chancellor has heard me say this before in another place, I know—to build upon the foundation of the magistrates' courts and use them as part and parcel of the foundation of a family court in the future.
The sooner this Bill reaches the Statute Book the sooner justice will be able to be done to high and low alike, and the social problems—which I have ventured to repeat in view of what the noble Lord, Lord Hatch, said—which are a constant daily and almost nightly concern of the judiciary at all levels will be able to be, eased.
8.6 p.m.
Baroness Ewart-Biggs: My Lords, it is really impossible to speak in this debate tonight without reflecting on the great human tragedy and all the attendant pain which is brought on by divorce. And it is therefore of particular concern to know that with divorce rising in all the Western European countries, it is nevertheless Britain which is in the forefront with its rate of divorce having increased by 150 per cent. in the last 10 years. That means, of course, that an enormous number of children have had their lives turned upside down in that period.
I neither have the ability, the qualifications nor the experience to see this Bill in purely legal terms, so although I have listened carefully—and I have been much reassured by what all our noble and learned friends have said—I would nevertheless like to make a few remarks from a social point of view, and indeed represent some of those anxieties which have been put to me, notably from the National Council for One-Parent Families.
I think when considering this whole question of divorce it is important to recognise that within our particular society marriage is not an arranged affair of property relations but is brought about by emotional relationships. It is consequently that emotional relationship which has to bear the brunt of the pressures brought about by the fluctuating and mobile society in which we live. Furthermore, it is obvious that such pressures will be exacerbated when a family is unable to cope financially. Thus, it is hardly surprising that there is a higher divorce rate among those in the lower income bracket.
In the first place, the poorer couples experience a very real drop in living standards merely on having children. Apart from the actual expense incurred by
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the child itself, there is usually either a shift from two sets of salaries to one, or the need to pay for child care facilities. I need hardly say that the level of child benefit in this country in no way relates to the cost of bringing up children. Indeed, the Foster Care Association estimate that this benefit corresponds to only 10 per cent. to 20 per cent. of the real cost of bringing up a child.
Therefore, in spite of the financial difficulties already encountered by families when living together, together with the obvious disincentive of having to make the same inadequate income spread over two households, the divorce figures are spiralling. Indeed, three-quarters of those petitioning for divorce are women; the majority of whom will of course become the custodial parent to the child. Inevitably this brings in its wake a rising number of financially disadvantaged families headed by a lone mother; women, moreover, who rarely enjoy regular support from any extended family network.
It must be further recognised that these women can hardly he described as having emerged from marriage on an equal footing to their husbands. For many of them reasonable career prospects may have been sacrificed in the process of child care. Similarly, there will be women who have made endless sacrifices to their own short-term well being and long-term career prospects in the interest of assisting and furthering their husband's developing career. Here I really am in a position to bear witness to the particular instance of diplomats' wives, who probably more than anybody make great career sacrifices in order to make their contribution to their husbands' jobs which is expected from that career. So those seem to be the key factors in the rise in divorce, especially among people worst hit by the nation's present economic ills and including a growing number of poor families headed by a lone mother.
Contrary to what is generally thought, as much as one half of these lone mothers already create sufficient earnings to bring up their own children; a further one-third rely on supplementary benefit and—as the noble Lord, Lord McGregor of Durris, said—only 6 per cent of the ex-wives rely on maintenance as the main source of income. The reality of the manner in which maintenance arrangements affect these women at present is that too little is ordered, too little is paid; and, finally, enforcement measures are totally inadequate. That is their problem.
Having tried to give a few ideas about the economic havoc brought on poor families by divorce, I shall now comment briefly on Part II regarding maintenance. It is clear that one of the aims, as the noble and learned Lord the Lord Chancellor said, is to eliminate the species of women known popularly as "alimony drones"—these women without dependent children who refuse to work and instead subsist on the meal ticket for life provided by their divorced husbands. It suggests other changes which have been enumerated today.
It seems possible that many of these changes are irrelevant or unfair. First, it seems to be a fact that the "alimony drone" has become a myth. There have been one or two highly publicised cases, but incredibly few. The reality is that ex-wives are not receiving excessive amounts of maintenance. This is not

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surprising when one realises that already the courts expect women to take paid employment once their children no longer require full time care. Furthermore, the attendant difficulties of enforcing maintenance orders and making sure they keep pace with inflation means that many women simply abandon their orders. The real problem is not "alimony drones" but, as I said earlier, it is the poverty which affects women and children after divorce.
This is borne out by that enormous increase of one-parent families seeking the advice of their associations. Lone mothers come to them in despair, unable to make ends meet. Many would agree that wives should be financially independent. I am sure that the whole of the women's movement must be behind that quest; but surely reducing the right to private maintenance is an unfair way of enforcing that independence without having first ensured that women enjoy equal status with men under the tax and social security laws. It is equally unfair to expect women with children to look after to take, or remain in, paid employment without first providing adequate day care, nursery facilities, opportunities for training and re-training, genuine equality of opportunity at work and equal pay and fringe benefits.
The proof that we are still light years from achieving this provision lies in that fact that in 1981 the average of all female earnings was only 67 per cent. of the average of all male earnings. The European Court of Justice ruled in July this year that the United Kingdom Government had not fulfilled the EEC Treaty obligation on the right of women and men to claim equal pay for work of equal value.
Whereas it is realistic to accept that on divorce the partners cannot expect to be in the same financial position as they would have been if the marriage had not broken down, nevertheless the Bill does not provide any alternative criteria. It makes no attempt to achieve an equitable distribution of the economic assets and advantages of marriage towards which both partners have contributed.
Again, although the Bill—as has been said so many times today—appears concerned with children, surely its true priorities are revealed when the lengthy clauses on maintenance are compared with the five line subsection which provides simply that children's needs shall be given first consideration without it in any way being written into the Bill as to how this should be done. There is nothing about how much it costs to keep a child as it grows up, including the costs of substitute care. There is nothing about how the liability for children should be divided between the parents. These and other questions should not be left to the courts to work out over lengthy periods of expensive litigation.
This brings me to my last point regarding the most serious flaw which has been pointed out by most speakers today: that is the failure to provide an out-of-court conciliation service. In my view this omission makes a mockery of the Bill's very title—the Matrimonial and Family Proceedings Bill. Surely that is what it is not. If it was concerned about families it would have set up a conciliation service which in Bristol, as elsewhere, has shown that much of the bitterness of divorce can be reduced by providing neutral and
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independent conciliators to draw up agreements on custody, access and even financial arrangements.
I end by saying this. In view of the great gravity of the present level of divorce figures, together with the many representations and anxieties which have been expressed concerning the Bill, the lack of information that there is over certain areas of this matter, would the Government not agree to put more thought into the Bill and try to make it something which will be in tune with the full gravity of the situation of divorce among families today?
8.19 p.m.
Baroness Vickers: My Lords, I am very pleased to be allowed to say a few words, particularly to the noble and learned Lord the Lord Chancellor. I have been in both Houses with him and I have always found his explanation of Bills to be thorough and excellent. When we have legal matters to discuss, he gives great heart to people such as myself who are not legally trained. His patience and the clarity with which he puts things forward are quite amazing.
I should also like to thank the noble and learned Lord, Lord Scarman, for his explanation of new Clause 25(2)(a), because that solves the problem. We can be reassured that the rights of the woman or the man will be well looked after. I very much regret that the noble Lord, Lord Hatch of Lusby, described this as a "middle class" Bill. Very often I have found that the weekly wage earners can look after themselves far better than the middle class and I feel that they will not be detrimentally treated by the Bill. I should also like to support my noble friend Lady Faithfull in regard to her Australian family courts, because I have visited them and they work extremely well.
I will mention one or two subjects. The first concerns maintenance agreements. The noble and learned Lord the Lord Chancellor may remember that in another place in 1955, which I entered at that time, I was successful in the ballot for a Private Member's Bill. I was fortunate enough to get an early place and brought in a Maintenance Orders (Attachment of Earnings) Bill. I succeeded in getting a Second Reading and the Bill went to Committee. I should mention that maintenance could be obtained by employers deducting maintenance
money from a man's wages to pay the sum required by the court, if agreed by him. In another place in Committee—I regret to say I was not happy when the noble Lord, Lord Diamond, suggested we might adopt the same system—three Conservative and three Labour Members sat outside the Committee room in order that I should not get a quorum. In that was my Bill was defeated.
I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, is not here because, as the Minister concerned, he was marvellous. He came to all the so-called Committee meetings to support us. The final outcome was all right because the Home Secretary, Mr. Butler, later Lord Butler, brought in a similar Bill which is now the Maintenance Order Act, 1958. I mention this because it is referred to in the Title to the Bill which in the last few lines reads:
"… to impose a duty to notify changes of address on persons liable to make payments under maintenance orders enforceable under Part II of the Maintenance Orders Act 1950 or Part I of the Maintenance Orders Act 1958; and for connected purposes".
I regret to say that in previous years this operation has

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not been very successful. The men either changed their names or used to change their jobs; this is not quite so easy now. I should like to know whether this new Bill will make it easier to contact these people and how it will be arranged. I should like also to say that most of the
one-parent families are headed by women now living in poverty and maintenance plays a very large part in their lives. When I had my interview sessions, one of the numerous questions asked was about housing and the other one was about how they were going to get their money for maintenance. Very often, their income was totally inadequate and then one was able to get them supplementary benefit for the time being.
But the situation is very difficult if they have maintenance orders which are not applicable to a particular court or where they usually have to pick up their maintenance. They go there unsuccessfully day after day or week after week. I should be very grateful if we could have some knowledge of whether, in future, it is going to be easier for them to get their maintenance money when it is granted.
This Bill also appears to me to seek a reduction in the maintenance of divorced women who have a chance of getting better jobs. But Section 25A does help a little with this point. I feel that it is going to be very difficult for women to obtain jobs, particularly women in the 45-to-50 age bracket. I should like to know what might be the idea of the restricted specific period; whether it should be up to several months or a year that they could get some help. It appears to me that divorced women would be better off in Scotland, since paragraph 67 of the Scottish Law Commission report places a priority on the needs of children and makes detailed recommendations for fair sharing of matrimonial property and other assets in recognition of the contributions and disadvantages of both parents. I wonder whether later we could perhaps consider adopting some of the Scottish measures. This, I think, would be a fairer sharing of the economic burden of child care.
This Bill, as I understand it, requires the court to give first consideration to the welfare of any children when making orders for financial relief. But this Bill means more consideration in the financial arrangements and a greater emphasis to be placed on the parties becoming self-sufficient. I am sure that all people want to become self-sufficient, but I think it is going to be very hard for women to be self-sufficient, except after some time. I believe that the Law Commission (in paragraph No. 118) recommended that illegitimate children should be treated in the same manner as legitimate children in regard to maintenance payments. I do not know whether this could come under the Long Title of the Bill, but I hope it might be possible for consideration to be given to giving illegitimate children equality with other children by an amendment to this Bill, or by another Bill, perhaps, in the future. I feel that mothers should have the same rights as wives.
The "clean beak" can be made now; and, for parties with no children, this often happens. For spouses with children, the concept of a clean break from children and their needs is not very appropriate; nor does it generally express the desire of a non-custodial parent. I do not think that the non-custodial parent has been
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mentioned before. It is not just more reasonable (as Section 25A(1) suggests) to order a clean break in the majority of families where there are children; but also the courts have power to make the break at the present time; so that I do not understand why it is in this Bill.
There is a fear that this Bill will mean greater poverty and hardship for the one-parent families by reducing or restricting maintenance payments to divorced women and by increasing bitterness and conflict between the divorcing couples and ignoring the plight of the children outside the marriage. When it is realised there are 1.6 million children living in one-parent families, I think that they are not likely to get very much help from this Bill. If a court considers that there is no continuing obligation to be imposed on either party, it may dismiss the application straight away and, I think I am correct in saying, the applicant is not entitled to make a further application. Also, the court can direct that a party shall not be entitled to an extension of maintenance payments. Perhaps, at a later date, I might get answers to the points to which I have drawn attention.
8.27 p.m.
Lady Saltoun: My Lords, I listened with great interest to the explanation of the noble and learned Lord the Lord Chancellor of Clause 1, and I listened also to the noble Baroness, Lady Faithfull, with very great interest and sympathy. But I am not altogether happy about it. Like the noble Baroness, Lady Macleod of Borve, I am rather afraid that it will lead to some very young, immature couples saying, "Oh well, we can get a divorce after a year if it doesn't work". So that they will plunge into marriage without due consideration. When you are very young, say, 17 or 18, three years seems a very long time. After all, it is, perhaps, between one-fifth and one-sixth of your whole life. I think it is long enough for them to think: "If we have to to stick it out for three years, perhaps we had better not marry until we are more sure of our feelings". I think that, if they have married, the prospect of having to stick it out for three years might make them try a bit harder. I know a number of social workers feel like that.
In addition, there are two categories of people to whom I think this clause will be God's gift—or, perhaps, I should say, in the first category, "Allah's gift"—because there are in Pakistan marriage bureaux which, for a consideration, will arrange marriages between Pakistanis who want British nationality and British girls, the understanding being that divorce will follow as soon as it is legally possible. The immigration authorities are doing their very best to prevent this but I believe that quite a number still slip through their net; and those people will be absolutely delighted. Also, as the law in Scotland does, it will benefit a particularly nasty sort of young woman, the kind who marries a man for the sole reason that she wants to have a legitimate baby and, as soon as the baby is born, she leaves the man because she does not want to be bothered with a husband. Your Lordships may think I am romancing, but I can assure you that these people exist. I have met them.
Otherwise, my Lords, I welcome the Bill. The idea of trying to place both parties in the financial position in which they would have been had the marriage not

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broken down is, I think, quite nonsensical. I cannot think how it will get through this House. If you cut a cake in half, you do not have two cakes; you have two half cakes.
I have heard certain representatives of the Church of England say: "Oh well, when people got married in church the bridegroom endowed his wife with all his worldly goods and that should last forever". I am very sorry, but very few bridegrooms now make that promise, thanks to the earning capacity of women and their reluctance to promise obedience to their husbands. Instead they say, "all my worldly goods with thee I share", but nothing is specified as to the proportions in which the worldly goods are going to be shared.
The 1969 Act and the 1975 inheritance act really were a gold-digger's charter. There always have been, and there always will be, girls who marry a rich young man for whom they do not particularly care; they stay with him long enough to have one or two children and then leave him for another whom they prefer, having collected a handsome settlement en route. I certainly do not see why they should get a caviar and champagne ticket for life. The courts usually award the custody of young children to the mother, even in cases where she is not really a very fit person to bring them up. They are frequently sympathetic to erring wives, so I do not think that this Bill will harm the children of divorcing couples. Indeed, Clause 3 specifies that the first consideration must be given to the children and I cannot see that there is any cause for concern on that account or for older women whose earning ability may be non-existent. I believe that the courts will look after them as they have always done hitherto.
8.31 p.m.
Baroness Lockwood: My Lords, I approach this Bill with a sense of unease and uncertainty—a sense of unease which not even the noble and learned Lord the Lord Chancellor in his very illuminating introduction of the Bill, nor the persuasive comments of the noble and learned Lord, Lord Scarman, have quite removed.
I want to concentrate on Part II of the Bill, although in passing I would just say I have some sympathy with those noble Lords who, in commenting on Part I, have said they are inclined to be persuaded that perhaps it would have been better for us to follow the Scottish example in this area. I would also say that I am sorry the noble and learned Lord the Lord Chancellor has not followed his own inclinations and his own expressed sympathy towards an introduction of a family court; nor his sympathy towards conciliation services in the form of this Bill. However, as I say, I want to concentrate on Part II.
The Bill has abandoned the objective of the present law to place the parties in the same financial position in which they would have found themselves had the marriage not broken down. I understand the problems to which this principle has given rise but I do think we should at least admit that it was an attempt to realise equity between the parties, and it did express a general principle as to how to approach the breakdown of marriage.
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It has been said of this Bill that it is an attempt to introduce greater equity between the parties involved. This is a very difficult objective to attain, particularly as in the majority of cases equity between the parties does not exist prior to the break-up of the marriage. let alone afterwards. I suppose it is not surprising that the objective of leaving the two parties in the same financial position has been abandoned because that objective really is one that is incapable of being achieved. We can only get two half-pints, not two pints, out of one pint.
Inevitably, therefore there is going to be suffering and financial deprivation in the majority of cases where a marriage has broken up, and I think this is the starting point. How is this suffering and deprivation to be shared between the two parties? The new and overriding objective of the Bill is to give precedence to the welfare of the children of the marriage, and this is an objective for which I think all noble Lords have expressed support, although some of us may differ as to how that objective is to be achieved.
I think we have to bear in mind all the time, however, that the welfare of the child or children will be very closely linked to the welfare of the party to whom custody of the children is given; and it is in cases where children are involved that to arrive at equity between the parties is most difficult. Here we are talking about 71 per cent. of divorce cases, or 60 per cent. if we consider only those cases involving children under 16—and, as many speakers have said, it is unrealistic to think in terms of children under 16.
There are two aspects to equity. One is the financial side and the other is equity in relation to the custody of the children and the day-to-day care of the children. The new reference in Section 25—and here I think we are all indebted to the noble and learned Lord, Lord Scarman, for reminding us that Section 25 remains very much as it was in the previous Act, with the exception of the reference to the children and with the exception to the reference to the earning capacity of the wife, and not only the present earning capacity but the future expected earning capacity of the wife——
The Lord Chancellor: My Lords, if I may say so, the noble Baroness is not quite right there. The earning capacity is not limited to wives but applies to both parties.
Baroness Lockwood: My Lords, I do thank the noble and learned Lord the Lord Chancellor for reprimanding me on that. Of course the earning capacity is related to spouses, but in the present situation I think he would agree that in the majority of cases it is the wife who has care and custody of the children and therefore it is the woman who is in the greatest difficulty in this respect.
When you take that particular subsection in the new Section 25 and relate it to the completely new Section 25A, which deals with the financial break, it seems to me, and it has seemed to a number of people and a number of organisations, that the position is being oversimplified and that the substantial difficulties of women in the employment field are not taken fully into account.
I have referred on many occasions in this House to the disadvantages of women in the labour market and

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I do not want to go into details this evening; but I should just remind your Lordships of one or two facts. The average earning capacity of full-time women workers is 64 per cent. of the earning capacity of full-time male workers; that is the weekly earnings capacity. Therefore, the chances of a woman being able to maintain her children at a reasonable standard are considerably less than those of a man.
The reasons for these differences are partly cultural, partly educational and partly due to the family role. Indeed, recent research has indicated that it is the break in a woman's working life and her family role that accounts for the greatest difference in her earning capacity, compared with that of a man. A woman who has taken 10 years, or even the average of 7 years, out of her working life to have a family will not have the same earning capacity as a man who has remained in continuous employment—not only present but future earning capacity, because such women have lost their seniority and the possibility of promotion, time and time again, which affect not only present earnings but their capacity to earn an adequate retirement pension.
Therefore there are very real difficulties and, while I am reassured to some extent by what noble and learned Lords have said in the debate this afternoon, I hope that, when we come to the Committee stage, we shall look very carefully at these clauses to ensure that they cover the needs of the spouse who is given custody of the children, who, as I said, tends at the present time to be the woman.
That brings me to my second point, which is the custody of the children. Again, the reason for women being given custody is usually the cultural one that it is a mother's place to be with her children. In this respect, men suffer deprivation, and I have a great deal of sympathy with the report of the Law Commission, which states that they would like to see more awards of joint custody given. But in order to do this, we need to have more conciliation services. These have been referred to on many occasions this afternoon and I would say only that I very much support what has been said.
However, I would draw attention to the fact that even the consultation paper by the Lord Chancellor's Advisory Committee on this matter does not look at the conciliation services. The Booth Committee stated in their consultative paper that conciliation, such as the Bristol conciliation, is outside the matrimonial causes procedure and therefore they have not dealt with it in detail. I think that it was the noble and learned Lord, Lord Denning, who said that the formal conciliation services within the courts are of little value, and I should like to think that we could give more resources to the conciliation services outside the courts.
Time is getting on and I shall merely say that there are many gaps in this Bill—gaps which have been referred to, gaps to which the Law Commission referred in their report and gaps in knowledge which make it difficult for us to decide at this stage what are the best procedures to be followed. The noble and learned Lord the Lord Chancellor said in his introduction that this was an urgent matter, but I wonder whether it is so urgent that we cannot stop and look at some of the areas, particularly the areas covering maintenance, where there are such tremen
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dous gaps, before proceeding with the Bill. However, if the Bill receives the support of your Lordships' House, I hope that we shall take very seriously the recommendation of the Law Commission that the working of the new Act should be carefully monitored. Indeed, I hope that we shall follow the precedent cited in their report and require a periodic report to be laid before Parliament.
8.46 p.m.
Lord Foot: My Lords, when I am called upon to speak in a Second Reading debate at this late hour, I tend to be oppressed by the thought that everything that can properly be said has been said, and sometimes much else besides. But it is not idle courtesy to the noble and learned Lord the Lord Chancellor, or to the others who have taken part in this debate, to say that this has been a most useful debate, because it has enabled us to identify the issues raised by this Bill and, indeed, to identify to a large extent the matters which we shall be considering later in Committee, at Report and so on.
The noble and learned Lord started by saying that this Bill had, unfortunately, been widely misunderstood and misrepresented. If this debate has done nothing else, it has gone a long way to deal with those misconceptions, misunderstandings and misrepresentations, and we have been able to identify what I regard as the central issue in this Bill. What has emerged is that the parts of the Bill other than Part II are probably the parts about which there will not be any acute controversy. Those have received widespread support and the debate has centred upon the issues raised by Part II.
Of course, the basic, central issue which is raised by Part II, is the issue which was put in the report of the Law Commission in their summary of recommendations. I imagine that I shall be referring to these for the last time tonight. They stated:
"The provisions of section 25 of the Matrimonial Clauses Act 1973 should he amended in the following respects:

(i) To seek to place the parties in the financial position in which they would have been had the marriage not broken down should no longer be the statutory objective.

(ii) The guidelines contained in section 25(1) of the Matrimonial Causes Act 1973 should be revised, to give greater emphasis to the following matters:

(a) the provision of adequate financial support for children should be of overriding priority"—
then I omit some words which are not immediately relevant—
"(b) the importance of each party doing everything possible to become self-sufficient should be formulated in terms of a positive principle; and weight should be given to the view that, in appropriate cases, periodical financial provision should be primarily concerned to secure a smooth transition from the status of marriage to the status of independence."
The major issue with which we are confronted in the Bill is whether the intentions of the Law Commission, as expressed in those paragraphs, are in fact translated into the Bill. Two of the criticisms of the Bill, not so much in this House but outside, are directed less at the things which the Bill does than at the things which the Bill does not do. And two matters have been referred to more than once. The first criticism is that the Bill does not make any progress over setting up concilation schemes. The second criticism—certainly more from outside this House than within it—is that the Bill does

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nothing to advance the solution of the problem of one-parent families.
When those criticisms are made, it should be borne in mind that the Law Commission themselves gave full consideration to them. They considered in some detail the concept of a conciliation scheme, preferably outside the legal process, and they came down very strongly in favour of it. Equally, they made it clear that they thought that the problem of one-parent families was of very considerable public concern. But, having considered those matters, they came to the conclusion—and I am bound to say that I believe they were right—that it would be inappropriate to defer the very important reform which this Bill accomplishes in order to take on board those other matters. More than that, they came to the conclusion that they did not think it was appropriate, in a Bill concerned with the reform of the private law in matrimonial cases, that one should try to incorporate a reform of the general public law about such matters as one-parent families. Therefore I believe that they were right and I am glad that the Bill as it is now written deals only with this major central issue.
The second problem which we shall have to consider, particularly in the later stages of the Bill—if, that is to say, we approve the general principle set out by the Law Commission—is whether the Bill does indeed achieve that purpose and whether it achieves it without going too far in the opposite direction and introducing some injustice on the other side.
There are two matters with which we are concerned, as I see it. First, we are concerned with the changes in the guidelines, as contained in the new Section 25. The House has enormously benefited from the close analysis of those guidelines and of the provisions of Section 25A that was made by the noble and learned Lord, Lord Scarman. If only those observations and that analysis had been more widely available before this debate took place, many of the misconceptions which have arisen would have been averted. I hope that what the noble and learned Lord, Lord Scarman, had to say tonight will be widely reported and fully considered by those who have had reservations about the Bill.
Having said that, may I conclude by saying that there are a number of matters of wording in the Bill which will have to be considered carefully in Committee. One example—I shall not weary the House by giving more than one—is the wording of the Bill so far as it relates to conduct and what it says about conduct. On this matter I take leave, with some hesitation and diffidence, to disagree a little with what the noble and learned Lord said about this in reproof of the noble Lord, Lord Hatch of Lusby. The noble and learned Lord is quite right in saying that there is a provision about conduct in the present law. Under the present law, the court is enjoined to exercise its powers,
"so far as, having regard to the conduct of the parties, it is just to do so".
So conduct is already one of the considerations which the court has to consider and observe. The Bill provides for the same matter but in different words. The Bill provides that the court shall have regard to,
"the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".
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I differ a little from the noble and learned Lord because I am not quite sure what the difference is between something which it would be just to consider and something which it would be inequitable to ignore. At a later stage of the Bill perhaps we may enter into the semantic question as to what the exact difference is. The noble and learned Lord said that in his view the words in the new Bill are a restriction upon the words in the present Act. I took, curiously enough, exactly the opposite view. When they raised up the question of conduct from the tail end of the section and put it in with a piece of its own, I thought that the intention was to emphasise the importance of the court having regard to conduct. If that is right, I believe it is a retrograde step, because the more conduct can be kept out of the matter, especially in ancillary proceedings, the better. But I use it only as an illustration of the kind of matter which we shall have carefully to consider in the later stages of the Bill.
Again I should like to thank the noble and learned Lord for the way in which he has proposed the Bill and for the very great assistance and guidance he has given to the House. For my part, I wish the Bill a fair wind and I hope it will receive the approval of the House.
8.58 p.m.
Lord Mishcon: My Lords, if ever there were a field in which the legislator has to be careful it is the very field that we have journeyed through tonight. It is true to say that while one has to have moral values and standards, one cannot he merely the preacher. It is also true that while it is useful to have experience one cannot be only the practitioner. Lastly, it is true that although you have to have views you must not be only the partisan. It is indeed in that spirit that we have to look at a Bill of this kind, assisted as we always are by the reports of the Law Commission, for which this House ought to be most grateful, and assisted, too, by the guidance that we have had from the noble and learned Lord the Lord Chancellor in his opening remarks.
May I make it perfectly clear from this Dispatch Box—and I hope, in all humility, that this will be true of all parts of your Lordships'House—that we on these Benches do not intend to take a composite view on a Bill of this kind. It is wrong that one should take such a view. It is only right that everyone should be able to express an independent point of view. When we consider that in 1982 we reached the stage where over 170,000 petitions were filed, I suppose that every one of us would say—even though many of us are of years where this is no longer appropriate—"There, but for the grace of God, might go I." If we are of that age we say of our children and grandchildren, in an age when one in every three marriages ends in divorce, "There, but for the grace of God, go they". So that is the spirit, I suppose your Lordships would agree, one ought to have in looking at this Bill. Indeed one almost might echo the words of the prophet Micah in asking for guidance:
"What does the Lord ask of thee
except to act justly and to love mercy and"—
I put in parenthesis—
"to walk humbly with your God".

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Having said that, I suppose it would be the view of everyone that the participants in this debate have all made a contribution, and a useful one. The fact that one differs in some ways with the provisions of the Bill, or the way they are worded, or the views as expressed by one or other of your Lordships, does not mean by any sort of count that it is not necessary to have some Bill at this stage to deal with some of these matters.
My Lords, can I get on immediately to the very first matter that in the course of this debate in your Lordships' House in some cases caused controversy, in other cases caution? That was the question of reducing to one year from three years the period within which a petition could or could not be filed. I would have said that there was not one voice that spoke up in support of the existing legal provision, which is of course that unless you can prove exceptional hardship in regard to the petitioner or exceptional depravity on the part of the respondent you cannot bring your petition within three years. Nobody spoke in support of that, and those of us who practice in the law know what those difficulties are, and the obscene way in which the practitioner has to encourage the petitioner, thinking that he is doing his duty to his client, "Cannot you think of anything worse than that? Are you quite sure that is all that happened? I don't think that amounts to exceptional hardship or exceptional depravity." It is something which does not do very much to aid civilisation or social standards. So no one spoke in defence of it.
The only thing is, is this the appropriate time to deal with the period of three years and turn it into a period of one year? There I must say I have my doubts. I have my doubts, and I put them before the House with every respect, for the following reasons. You can measure statistics about the number of cases dealt with by the divorce courts. You have no statistics of those cases which are saved from the divorce courts. I know perfectly well from my own experience that there are so many cases of young people—we are obviously dealing in the main with young people when we are dealing with one year marriages or three year marriages—where a young and immature wife has returned from her honeymoon feeling that marriage is all the romance you see in the films or, these days, on television. Then comes the housework and waiting for the husband, or possibly doing a part-time job and then having to do all the drudgery of housework; the husband returns tired, and the romance does not seem to be there. There are many cases of that kind where sensible parents, sensible friends, sensible conciliation services where they do exist, indeed a sensible padre, if I may say so, if he has a chance, or the family doctor, have the opportunity of saying: "Now look, please do try again. In any event, my dear, you cannot get a divorce now; so try again; it can do no harm. You cannot get a divorce for three years, or two years. Go back and try". It is not always the case that there is the walk-out and therefore it is only a question of postponing it.
Therefore, I am a little apprehensive about the one year. I might be happier if it were two years. I am a little apprehensive about legislating at this moment before we have the further report of the Law Commission—and they are sitting on this matter and they will come out with a report one day on grounds
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of divorce, which is the next thing they are talking about. Is it not a little premature to be legislating on a matter of this kind when the whole grounds for divorce are going to be looked at? It is a little premature to consider this before the Booth Report on procedure comes out. The Law Commission say in so many words that these procedural matters have to walk hand in hand with substantive law; otherwise you do not make sense of it. They have said that very clearly in this report. So, my Lords, I think possibly when we come to the Committee stage, individually, with our experience, pooling it, we may he able to get the right answer. I wonder whether this should be deferred. Is this the right period? I repeat that in no circumstances at all would I like the idea to go on very much longer of exceptional hardship or exceptional depravity.
I then move on, if I may, to this question of the clean break, as it is called, the finite orders, the power of the court to say that a wife's petition for maintenance, or even a husband's, is dismissed, and therefore the party concerned cannot make one ever again. Then there is the question of periodical maintenance orders. It has been said in this debate that there has been much misrepresentation, much misunderstanding. I do not think one can blame the media. It may be that some organisations have become a little too optimistic about the meaning of the Bill. I am sure other Members of this House have had the same experience as myself. I must have had at least 100 letters during the past week asking me to support the Bill. The letters have come mainly from husbands, but also from a few wives, all of them, with only a few exceptions, have been in support of a situation in which they think that the day after the Bill is enacted they will all be able to go to court and end maintenance orders and end the situation under which they are burdened with looking after the first wife.
In case anyone thinks that these letters came from people who have not had the benefit of an education, a proper understanding, or whatever, may I move to the next important point. It is dangerous when making a provision of this kind because one can lead to that belief. One does not help the situation if the clause that is put into a Bill is not as precise as it can he made. Here, again with humility, I differ from those who have spoken in this debate and even from the noble and learned Lord, Lord Scarman, for whom I have absolutely limitless respect and admiration. It is not proper to say that where one gives the court unfettered discretion in an "appropriate"case—and that is the only guidance anyone has given—that one makes the finite order or the periodical order or dismisses the prayer for maintenance. That is not good enough.
In case your Lordships think that this is not a view that should have anyone's regard for a moment, may I point out that The Times takes that view. It does so in an editorial in this morning's paper headed "When a marriage has broken down". Your Lordships will forgive me if I quote from it. I am not going to deal with the previous question. The editorial states:
"That apart, the Bill is quite directionless. Nothing is said about the aims to be pursued when a 'clean break' is not appropriate (presumably the majority of cases), nor about how the court is to decide when such an order would be appropriate.
"There must of course be flexibility in this branch of the law, because of the widely varying facts of each case, but there is a real danger that the almost complete lack of guiding principles in the Bill

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would create widespread uncertainty and inconsistency of practice. The danger here is particularly acute because the decisions involve the exercise of a judicial discretion and so are rarely appealable. The courts are entitled to more guidance than this from Parliament".
So is the practitioner entitled to more guidance when advising a client, and before accumulating costs, in order to create new precedents and, indeed, to find what a court may direct. As practitioners we will have to advise people who come to us and say with this new Bill, "Have we got a chance of ending it all?" This clause ought to contain words which guide the courts and tell them that, among other things on which they will have a discretion, they should take into account the length of the marriage, the state of the employment market and matters of that kind. No one knows where they stand.
I now deal with the last couple of points that I wanted to make.
Lord Morris: My Lords, before the noble Lord leaves that point, could he say whether he would enjoy drafting those particular guidelines?
Lord Mishcon: My Lords, I always enjoy answering the noble Lord, Lord Morris, when he intervenes but I am afraid that is where my enjoyment ends. I hope that with others of your Lordships' House it may well be possible to draft such an amendment. I believe that as legislators we will not be doing our job if we do not. I remind the noble Lord and your Lordships that judges, county court as well as High Court judges, registrars, and so on, are hut human. I assure your Lordships that the definition of "appropriate" may well be different in Suffolk from Southwark and may well be different in High gate from Harwich. It is not good enough merely to deal with these terribly important changes by using the word "appropriate".
So, with the leave of the noble Lord, Lord Morris, I move on to conduct. Here I find myself with great pleasure echoing the words of the noble Lord, Lord Foot. If I may, I would put it in this way. I think that this was the noble Lord's point and therefore I am indebted to him for it; I know that he will not think that this is plagiarism. It is obviously good legislation when you do things, if you can, positively and not negatively. You are being positive when you introduce the question of conduct when it just to do so. That is a positive comment. You do things negatively and with some obscurity if you say that you ignore, if you like, conduct unless it is inequitable so to do.
Again I speak with humility as a legal practitioner, but I can foresee the amount of legal aid money—quite apart from the private purse—being spent upon arguing before the courts cases of conduct where the clients will say, "You put this forward, because it would be quite inequitable in my view if the court did not know how my wife had behaved, and quite inequitable and negligent of you not to put it forward"; on the other hand, "What an absolute"—I cannot find a noun suitable for your Lordships' House—"my husband is and has been during the course of our marriage".
We shall be bringing conduct right into matters of ancillary relief in divorce cases. We shall be doing the very thing which we have been trying hard to avoid doing and which we managed to escape when we
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altered the rules of divorce by introducing the concept of a marriage which had irretrievably broken down. That will not do any good for the parties and it will not do any good for the children.
I could talk in terms of maintenance and relief of maintenance in certain low income cases, but we do not have time for it, so I merely deal very briefly with the question of conciliation. I find it regrettable, as did the noble and learned Lord, Lord Scarman, and my noble and learned friend Lord Elwyn-Jones, that we have not moved on with encouragement for conciliation when dealing with a Bill of this kind. With great respect, it is no answer at all to say that these are procedural matters—fiscal matters—and they need not and should not be incorporated into this Bill. If that had been the argument, I should have been perfectly content if the thinking had been contemporaneous with this Bill and announcements were made in regard to conciliation services at the same time as the passage of this Bill.
There is not the slightest doubt but that good is being done by voluntary organisations like that in Bristol which are at this moment almost bereft of funds. It would be quite wrong if a debate took place at Second Reading on a Bill of this kind which dealt with maintenance, ancillary relief and all the other things and we did not think in terms positively of encouraging those conciliation services.
If I may say so, I think that when the noble and learned Lord, Lord Denning, was talking about these matters, he confused reconciliation and conciliation. As your Lordships will realise, I say this with great deference. People can say that when a marriage has broken down, as a rule it is too late to do the reconciliation job. We are not talking about that in the main. When we talk about conciliation, we mean getting people round a table and dealing with these questions of periodical orders, financial orders, can the wife obtain employment, and so on. We are talking of getting round a table in a civilised way and not in the antagonistic and adversarial way that we have to in the courts at the present moment.
I think that your Lordships have heard me enough. I say in conclusion—this being a personal point of view, as I have said, although I am privileged to speak from this Dispatch Box—there is much that has to be done by a Bill of this kind and therefore should be done, but there is much that has to be looked at with the greatest caution when we come to the Committee stage.
9.19 p.m.
The Lord Chancellor: My Lords, I am very grateful indeed to the noble Lords who have played a part in this debate, particularly, if I may be allowed to say so, my noble and learned friends on the Cross Benches, my noble and learned friend Lord Rawlinson of Ewell and my noble friend Lady Faithfull. I should also like to congratulate the maiden speaker, the noble Lord, Lord Stallard. I wish that I had more time in which to do so, but it would make it more difficult to say what I have to say if I expatiated on it.
If I may, I shall try to pick out some of the questions so far as they are relevant on Second Reading. I fear that this will mean that I must leave either to correspondence or altogether many of the interesting

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points which have been made. First, I should like to commend to the House something which was said by my noble and learned friend Lord Scarman. The whole of the discussible part of the Bill has been
processed by the Law Commission in three separate reports. That has meant that it has produced provisional conclusions in a working paper, which has been circulated. It has gone through the consultation process. It has then gone through the reconsideration process. Lastly, there has emerged a final report, and at last, with some difficulty, I have secured a slot in the legislative programme for what I believe to be an essential piece of social reform.
Therefore I commend the words of my noble and learned friend Lord Scarman that the Law Commission is entitled to a prima facie view that what it says is probably the best of what is necessarily a series of compromises between divergent considerations, all of which have a certain validity. I add to that my own conclusion that the truth is that there is no way to handle the ancillary orders to be made after divorce—whether one is dealing with access, custody, care and control, or with financial maintenance, the distribution of assets, or the matrimonial home—except to give the courts the considerations which they ought to bear in mind, and then to give the greatest flexibility in order to give effect to those considerations. That is what the existing law has attempted to do, and what this Bill attempts to do a little better.
The law is like a new shoe. After 12 years it has been found to pinch various parts of the foot, and it is known very much where are the points at which it pinches. The object is to ease the shoe at the points of which it is known to give trouble, and not to reduce—but rather, if anything, to increase—the flexibility given to the courts.
I have been taken to task for not including a large number of matters which interest noble Lords. I start by defending myself against that charge. I did not of course introduce the vexed question of illegitimacy, or the whole question of one-parent families. As a matter of fact I have already accepted the illegitimacy report (No. 118) as a valuable piece of law reform, and I should wish to see it implemented as soon as resources become available. But it is quite clear that this Bill is not an appropriate vehicle for that subject. Apart from anything else, it would involve the complete abolition of affiliation proceedings, and it would not be within the compass of this Bill.
Secondly, I have been taken to task—I forget exactly by which noble Lords—for not introducing into the Bill the Law Commission reports relating to matrimonial property. The House will remember that we had at least two debates (I think in two successive Sessions) at the instance of my noble and learned friend Lord Simon of Glaisdale. I would remind the House that when I pointed out the relationship which must exist between matrimonial property and dissolution of marriage, my noble friend said very firmly to me, "My proposals have to do with property during marriage, and have nothing whatever to do with the distribution of assets after marriage". And he was right. That alone is an adequate reason for not including such a matter in the present Bill.
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I was also slightly criticised, although in a friendly kind of way, by the noble Lord, Lord McGregor of Durris, about the need for research. I fully agree. With the help of the Office of Population Censuses and Surveys, I am looking into a feasibility study with a view to undertaking precisely the research that he recommended into the effect of maintenance orders, and so on. Meanwhile, valuable but limited research is being carried out by such bodies as the Centre for Socio-Legal Studies, and the Department of Social Administration at Bristol University. However, I cannot really wait for that research. Nor do I think that when it comes it will yield new material which would lead me, at any rate, to want to see any of the terms of the present Bill altered. I agree about the necessity. I plead not guilty to an omission that would alter the terms of the Bill by not dealing with it now.
The same would be true of the demand for research into the cost of maintaining a child. This will he valuable whenever it comes and whatever its results, but I do not think that it will alter the terms of this Bill at all. I cannot see why it should be held to be a necessary preliminary to legislating the issues raised by the Bill. This was recommended. It is shortly intended to publish in the document known as Court Business information for registrars giving them the current scales of supplementary benefit rates and the fostering rates provided by the National Foster Care Association. These are figures already within the public domain, but it is possible that not every registrar knows the exact amount. However, I must say—I say it rather firmly to the noble Lord, Lord McGregor of Durris—that a child who is the subject of a broken marriage deserves a little better from caring parents than the mere cost of his maintenance. He is entitled to look to the whole assets of the marriage and the whole assets of both parents to give him something better than that. It may take the form of an education; it may be amenities of all kinds. I cannot therefore see that that ought to be used as an argument for postponing this Bill.
I wish next to say something about conciliation. I got the impression that a number of noble Lords and Baronesses who spoke were not aware that I am pressing ahead with conciliation throughout the country. Admittedly, it is in-court conciliation. But that is the inevitable step to take if you are going to have a standardised system of conciliation throughout the divorce courts in the country. There is no other way of doing it. I am perfectly familiar with the work of out of court conciliation done in Bristol and one or two other places, but I cannot standardise that at the moment. Even if I could, it could not go into the Bill. I conclude my remarks on conciliation by saying that, as a matter of fact, it can be done without legislation at all. I hope that, in the end, we shall be able to do it either by administrative action or by rules of court. It is not necessary to put it into this Bill. I must emphasise this: nor would there be the smallest justification, if the provisions of this Bill are otherwise acceptable, to postpone any of them to the advance of conciliation. That will be a bonus whether you keep the law as it is, whether you alter it, or however you alter it.
Having dealt—I hope not too summarily—with the alleged sins of omission, to which I do not plead guilty

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at all, I should like to turn to some of the issues that have been raised as matters of principle to the main provisions of the Bill. First, as regards the time bar I must say that I am utterly unrepentant. I noted that in his criticism of it the noble Lord, Lord Mishcon, found not a good word to say for the present situation. I am sorry to cross swords with the right reverend Prelate especially in view of the rather generous words which he spoke of me, which I would not have attempted to apply to myself. However, I think he will see that, on the whole, those who have spoken most warmly in favour either of the particular time bar provided by the Bill, or some alternative time bar, were precisely those who had familiarity with the misery and unhappiness which is caused at the moment.
I hope that the right reverend Prelate will take that back to his church authorities because I must say to him in all gentleness that of course the Church—by which he meant and I mean, the Church of England in this connection—is entitled to what he called a "dual role"; that is to say, it is entitled to legislate for its own communicants, and it is entitled to express an opinion about matters of social policy and the stability of the family and marriage. However, I must say to him that it is one thing to say that you want marriages to last, and that people ought to be encouraged to make marriages last, as I said in my opening speech. I happen to think that people flounce out of marriage too easily and I would very much agree to any proposal which advised them to give the marriage a serious second chance. I even issued a much more formidable warning against divorce than anything which was uttered by the episcopal mouth. Alas! as we shall see as we go along, marriage may be dissoluble but divorce is only too often indissoluble and lasts, painfully. for the rest of the parties' lives.
However, having said that, and having reminded the right reverend Prelate of his own statement that there are a large number of divorce petitions presented at whatever time after the celebration of the marriage which do not culminate in a decree of dissolution, I say that that is an argument which cuts both ways. The right reverend Prelate has produced not an atom of evidence that the reconciliation was brought about by the three year bar—not one. Nor has he—and this goes much more deeply to the root of his case—produced any reason whatever to suppose that to place the parties in a straitjacket when they believed that their marriage had irretrievably broken down, made them more and not less likely to come to a reconciliation. All that is done by putting the parties into that position is to encourage fornication and adultery.
I say to the right reverend Prelate rather firmly that I have been a communicant of the Church of England since I was 14, and my daughter, who practises in family law, has been a confirmed member of the Church of England ever since she was about 14. But I find it rather sad that the Church of England on this particular matter allowed the working paper to go by; they were asked for their views; they gave no sign of interest at all; and they were the only major religious body who did not reply at all. They allowed the report to come out and they took no interest at all for a year. They then issued a document which said that the report had come out six weeks before theirs, when in
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fact they had remained silent for a year. I must say to them that they have shown no interest at all, so far as I know, in the views which may be held strongly—and in my case are held very strongly—by the communicant members of their own body who have some familiarity with the practice of the Family Division and who know something of the misery and the unhappiness which is caused by limping marriages. If they had only done so, I do not believe that they would have acted as they did: nor do I believe that there is any rational basis at all for the attitude which they adopt.
I hope that when the right reverend Prelate reports to his colleagues about this time bar business he will at least report that it is very sad that the Church of England seeks to use the law as a tool for encouraging reconciliation when there is no evidence whatever that it helps in that way and when—alas!—there is a great deal of evidence—and to my mind largely conclusive evidence—in the Scottish experience which shows that it makes not the slightest difference except to encourage limping marriages.
I come now to the question of the clean break. I hope that noble Lords who have taken part in this debate will recognise from what I said in opening—and I have the impression that some of the speeches had been prepared rather carefully before they heard mine—that it is not in the least the intention, either of the Law Commission or of the Government, to disregard the rather obvious facts with regard to a wife's loss of earning capacity during the course of her marriage. especially when, as the result of the dissolution, she has the sole care and control or the custody of the children. On the contrary, I believe that the situation should be broadly as it is: that the husband of the defunct marriage owes a continuing obligation to the spouse which is not different in either quantity or quality from what he owes at the moment.
These are obvious considerations. They are taken into account by the registrars and judges as they stand, and there is not the smallest intention of disturbing them. But I must say this to critics, where they exist: that the assumption has been—even from the various noble Baronesses who have taken part—that it is the divorced wife who is the only woman in the case. That is not so. Of the vast number of letters that I have received, by far the bitterest have come from second wives. Of course, one never knows what the first wife would have said because unfortunately I have not yet received letters about the same marriage from the opposite parties; if I had, I think that I would have passed them on one to the other and I might have learned a little more. What is said by the second wife (and who knows whether it is true or false) is "Look, this woman"—meaning the first wife—"is living with her boyfriend who is very well off. She is getting maintenance from my husband and I have to go out to work, leaving my family at home in the hands of an unsuitable baby sitter in order to keep her". I am sure that some of the letters I have received have been reflecting fact; they certainly reflected feeling.
Therefore, it is important for noble Baronesses and others to realise that when you are dealing with divorce, very often you are dealing with two women, each on a different side of the fence; and, if I may say

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so to the noble Lord, Lord Hatch, that is true whether you are middle or working class.
I now come to conduct. I really did not agree entirely with what the noble Lord, Lord Mishcon, said. The advice that I have received—and not the advice I am giving—is that the words in the Bill represent the view which registrars take—that is to say, the people who do the work on the ground—of what they are doing now in the light of the aftermath to Wachtel. Wachtel introduced a rhetorical phrase, the context of which was well explained by my noble and learned friends Lord Denning and Lord Roskill. In relation to misconduct it used the rhetorical phrase "gross and obvious", which was incapable of being reduced to an Act of Parliament. Registrars found that it was offensive to their conscience to have to give effect to it where it clearly was inequitable to disregard conduct. They found that there were a number of cases where, if they had given literal effect to it, they would be violating their own consciences. I am told that the wording of the Act which emerges from the judiciary, which has to operate this, is precisely what they are doing now. I do not think that there will be much difficulty in the noble Lord, Lord Mishcon, advising his clients, provided he takes account of what is now happening.
Lord Mishcon: My Lords, I am tempted to rise for only one second to say to the noble and learned Lord that the view that I expressed was one that is shared by many legal practitioners who are specialists in this field. The very fact that he mentioned that Wachtel v. Wachtel is being followed at the moment means that anything in its place must be abundantly clear if it is not to lead to a lot of litigation.
The Lord Chancellor: My Lords, it obviously has to he abundantly clear, but it must be sufficiently flexible to enable registrars to do justice in the light of the almost infinite variations of conduct and of non-conduct which take place. I simply do not think that it is possible to disregard conduct. One has to remember certain things which have not been stressed. First, that conduct can be good as well as bad. It can be good in favour of the deserted wife who has had to look after children when she has been deserted just as much as it can be good in favour of the husband. It can be bad, and very bad. One has known many cases in one's professional experience where the husband knocks his wife about and leaves her penniless. Sometimes he deliberately goes on supplementary benefit rather than pay his wife a penny. Is one really to say that these things are not to be taken into account in any circumstances? We are doing no more than represent the ordinary conscience of mankind by trying to insert this in an intelligent form, although not in an inflexible form, in the Bill.
I have dealt with a number of these cases. I was glad that the noble Lord, Lord McGregor of Durris, pointed out that maintenance contributes only 12 per cent., I think he said, of the total content of what is received by these divorced families, because the hard fact of life is—and I am sure that the noble Lord, Lord
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Hatch of Lusby, would echo this—that in practically no circle of society can a man keep two separate households with two separate sets of children. This is the problem we are faced with. That is a fact to bear in mind, rather than to treat as a criticism of, or a reason for supporting, the Bill.
There is one matter on which I differed from the noble and learned Lord, Lord Elwyn-Jones. I think there was practically only one thing on which I differed from him at all. I do not think that the clean break ought to be available only where there are no children. I can think of cases, and not a few, where there is an uncaring parent who has left his, or her, children—whichever sex that parent belongs to—and remains without any interest in them at all. In such a case the clean-break principle may well be available against him, or her, even if there are children. The children's welfare is admittedly something which one has to take into account as a first consideration both in distributing the assets and in considering the ancillary problems in deciding whether a clean break is desirable or not, and it will be.
I am very conscious that I spoke for a long time in opening and now I am speaking a long time in replying, but it is a subject which merits consideration. So far as regards family courts, which I should have dealt with when I was dealing with my alleged sins of omission, I take the view of my noble and learned friend Lord Scarman. I regard the modest proposals in Part V, I think it is, as a way of paving the way to family courts. But it is not simply a question of resources, although resources are involved. Originally, when I plotted this Bill, I wanted to amalgamate the jurisdictions of the High Court and the county court, which I think will still be a desirable step further along that road. But one cannot deal with family courts until one decides what to do with affiliation proceedings and the jurisdiction of magistrates' courts in matrimonial cases. We are not ready to do that, nor are we ready fully to legislate on the subject until we have digested the Booth Committee's proposals which are still in their consultative phase. I say sincerely that I think we have done the best that can be done with an almost incredibly complicated subject.
I would just say this to those who rather depreciated the role which lawyers can play in this case. We are always supposed to live in an ivory tower of our own while the social consciences of ordinary people are more fully engaged than we are in the hardships and injustices which an inequitable law provides. I believe that that is the opposite of the truth. I was called to the Bar in 1932 and I have been facing the facts of divorce in one way or another ever since; that is 50 years. I say from the bottom of my heart, with my noble and learned friend Lord Denning, with my noble and learned friends Lord Scarman and Lord Roskill, and with my noble and learned friend Lord Rawlinson of Ewell, this is the best that can be done at the present time. Delay is not desirable. I beg to move.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

"Free Pardon": Proposed Legislation
9.46 p.m.
Lord Airedale Lord Airedale rose to move to resolve that, in order to give effect to the desire of Her Majesty's Government that Parliament should express its opinion on the question whether the term "free pardon" should be replaced by an expression denoting exoneration rather than forgiveness (Cmnd. 8856, paragraph 19), this House would welcome legislation to give effect to such a change.
The noble Lord said: My Lords, this topic has been a hobby-horse of mine for some time. I remember raising it at Question Time when the late Lord Dilhorne was Lord Chancellor. The Lord Chancellor expressed a view that the expression "Free Pardon" was well understood. I am sure it is well understood by lawyers; but it is expecting rather much of the man in the street to expect him to understand that in this particular case the word "pardon" is being used in a very special and peculiar way. That it is so is made abundantly clear by Sir Frank Newsam, who was Permanent Under-Secretary of State at the Home Office, in his book entitled "The Home Office". Sir Frank writes at page 114,
"A Free Pardon wipes out not only the sentence or penalty, but the conviction and all its consequences, and from the time it is granted leaves the person pardoned in exactly the same position as if he had never been convicted".
Why is it then called a "free pardon"? I believe that the answer lies in history. I believe that there was a time when it was thought unwise to admit publicly that the High Court was capable of injustice and so the free pardon was a device whereby the court's authority and dignity was upheld and ultimate justice could still be done to the wrongly convicted person.
The Home Affairs Committee of another place in its Sixth Report in the 1981–82 Session entitled "Miscarriages of Justice"(it is House of Commons paper 421) said in its recommendation at paragraph 31:
"We wish finally to comment on the use of the traditional phrase 'free pardon'. The word 'pardon' implies a state of guilt for which some kind of official absolution is required, and is clearly inappropriate to a situation in which a man is finally pronounced to be innocent of the crime for which he was convicted.
"We consider that the introduction of a new procedure for the investigation of possible miscarriages of justice should also provide the occasion for the replacement of the term 'free pardon' by some word bearing the correct connotation of annulment, cancellation or revocation of a conviction".
The Government published their reply to that report in Cmnd. 8856 and in paragraph 19 they say:
"If, as suggested in the preceding paragraphs, a free pardon should continue to be granted only where innocence seems to be established, the Government understand why the use of the term 'pardon' may be thought not entirely appropriate. But to confer a power expressly to annul, cancel or revoke a conviction would require legislation. The Government will give further thought to this matter when a suitable opportunity for legislation arises. And would meanwhile welcome the further expression of Parliamentary and public opinion on the question".
I suppose that the appropriate way in another place of discovering parliamentary opinion is by means of the Early Day Motion procedure, which we do not have here. As far as I know, the only way of finding out the opinion of your Lordships is by holding a debate. I
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hope I have said enough to introduce the topic and I think I had better stop talking and listen to the views of other noble Lords. May I say that if I am challenged to put an expression in place of "free pardon", I merely suggest a "grant of exoneration". But it may well be that wiser heads than mine will think of a better and more appropriate phrase. I beg to move.
Moved, To resolve that, in order to give effect to the desire of Her Majesty's Government that Parliament should express its opinion on the question whether the term "free pardon" should be replaced by an expression denoting exoneration rather than forgiveness (Cmnd. 8856, paragraph 19), this House would welcome legislation to give effect to such a change.—(Lord Airedale.)
9.52 p.m.
Viscount Hanworth: My Lords, there is merit in preserving old traditions even when they are for all practical purposes nonsense with reality. I submit, however, that there is absolutely no merit in continuing out-of-date traditions where they are misleading to the general public and, more importantly, a slight not understood by those directly concerned. I have some sympathy with the Scottish practice of sometimes giving a verdict of non-proven; but those who know about this would draw conclusions between this and our own idea of free pardon. The feeling there, of course, is that the person is not guilty and has merely been pardoned. It may be that some people would consider that this issue is not of great importance, bearing in mind the number of people concerned and that they would not have raised it themselves. But the noble Lord who has raised this Motion has done rightly in my view and our support for him should therefore be wholehearted.
Lord Foot: My Lords, I welcome the opportunity to take part briefly in this important debate, partly because it does not often happen in this life that one is able in a debate to find oneself in a position where there is everything to be said on one side and nothing to be said on the other. That is one reason why I take satisfaction in joining in the debate. Nothing could be more ridiculous than the words "free pardon". Both words are inappropriate. "Pardon" is obviously inappropriate if you are exonerating somebody who has been wrongly convicted. What does "free" mean? Does it mean that he has not paid for it? This is something which, in a small way, brings the law into disrepute. I have known cases where people have been convicted for speeding and what has happened is that the police have followed them, taken their speed over a certain distance and then it has been found subsequently that the police misunderstood the distance, that they got it wrong. Therefore for all the people who have been concerned with that particular car or that particular police officer over that particular distance, the conviction has to be cancelled. Therefore they are granted a free pardon. My Lords, I should hesitate to use in this House the sort of language that is used by people who find themselves in that situation. I have the greatest possible pleasure in supporting this Motion.
Lord Elwyn-Jones: My Lords, the House will be grateful, even at this late hour, to the noble Lord, Lord Airedale, for introducing this fascinating subject. It affects rather more persons than at first meets the eye. If one looks at the report of the Home Affairs Committee on miscarriages of justice and sees the number of free pardons, in 1980 there were as many as 270, and the total over the years from 1972 to 1980 was 2,180. So this is a frequent occurrence in the course of the administration of justice. That is why perhaps one sees that the Home Office view is that if the change is to be made it should be done by legislation. It is not a sort of hole-in-the-corner administrative act: it has a far wider implication. At the moment I suppose the rare event of executive interference with the judiciary, by way of the Home Secretary granting a free pardon, is an exercise—and perhaps the noble Lord who is to reply will correct me if I am wrong—of the Royal Prerogative.
So one is in a rather difficult constitutional field here, I think; rather more complicated than at first meets the eye. But looking at the etymological history of the words "free pardon", a look at the dictionaries provides fascinating answers. The Oxford Dictionary describes "pardon" as:
"To remit the penalty …; to pass over (an offence or offender) without punishment or blame; to forgive."
The point the noble Lord is making is that that is an implication that there was blame somewhere and this is a passing over of blame. But Stroud in his Judicial Dictionary, which happily is still of some weight and authority—thank goodness! because, speaking for myself, I refer to it so frequently in a difficult forensic moment—defines a "free pardon" as follows:
"What is the effect of a free pardon? It is clear that it extends to far more than merely acquitting of punishment. It is, in fact, a purging of the offence. In Hale … it is stated that the King's pardon takes away poenam et culpam."
Punishment and blame, I think, if my grammar school Latin is right, and happily the noble and learned Lord the Lord Chancellor is not here to correct me.
"…in Hawk…it is said that 'the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy and all other consequences of his crime that he may not only have an action for a scandal in calling him traitor or FELON after the time of the pardon, but may also be a good witness notwithstanding the attainder or conviction, because the pardon makes him, as it were, a new man and gives him a new capacity and credit.' "
Viscount Hanworth: My Lords——
Lord Elwyn-Jones: My Lords, is the noble Viscount interrupting me in this charming discourse?
Viscount Hanworth: My Lords, if I may, because I think that the noble and learned Lord is saying that what was meant before implied that the person concerned had been guilty of a crime. What we are saying is that the pardon we want does not imply there was any crime beforehand. Those concerned are completely discharged. Everything that the noble and learned Lord has been saying implies that they had a crime and they committed a crime.
Lord Elwyn-Jones: My Lords, I am sorry that the noble Viscount did not allow me to continue my discourse, because, as I have said, there was certainly one historical period when the effect of a pardon was almost an ennoblement, an adornment—more than a mere exculpation. To complete my etymological semantic survey, Jowitt's Dictionary of English Law repeats much the same language as the language of Stroud:
"The effect of a pardon is to make the offender a new man (novus homo) to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned, and not so much to restore his former as to give him new credit and capacity. Nevertheless the judgment remains formally unreversed."
I sympathise with the point that has been raised by the noble Lord, Lord Airedale. All I am saying is that a free pardon has acquired a certain significance in the mind's eye, perhaps even in the public's eye, as something more than a mere remission of a crime; something more significant than that.
I am not sure that I am very impressed with the proposed alternative of a grant of exoneration. I am not very sure about that, purely as a matter of semantics. However, what appears to be clear is that if we are to embark upon this—I am sorry that I am taking so much time; I shall not be much longer—field of the Royal Prerogative it may well need legislation to cure it. That is all I say. I am naturally grateful to the noble Lord for introducing us to this enticing subject, which leaves something to be done.
10.2 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, the House is indebted to the noble Lord, Lord Airedale, for this opportunity to consider a matter on which the Government have invited parliamentary and public comment. The noble Lord has asserted consistently for many years that the term "free pardon" is not an entirely appropriate description of the exercise of the Royal Prerogative of Mercy when that mercy is applied to persons who, having been convicted of an offence, appear to have been proved innocent of it. It has been suggested that where a convicted person is proved innocent and has been granted a free pardon in its present form, the idea might still linger on that he or she was in fact guilty but had earned the pardon or qualified for it by some means other than the establishment of his or her innocence. Over the years, much thought has been given to the possibility of replacing the term with an expression suggesting exoneration rather than forgiveness. I find myself instantly using the word suggested by the noble Lord himself. I think I had better start my reply to the noble Lord's very able exposition of his views by outlining briefly how the present system works, the role of the Home Secretary and the effect of a free pardon. First, I must emphasise that there is one fundamental constitutional principle to which successive Home Secretaries have always had due regard. It is the principle that the executive should not interfere with, or overrule, the decisions of the judiciary, save in the most exceptional circumstances. If it appears that there is a need to amend a judicial decision, the best course will normally be for the courts themselves to do it.
In practice, therefore, the Home Secretary will not normally consider recommending the grant of a free

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pardon in cases where a more straightforward legal remedy exists as an alternative. Where, for example, he is able under Section 17 of the Criminal Appeal Act 1968 to refer a matter to the Court of Appeal for determination, that is what he will do. Given the existence of this alternative power, a free pardon is normally recommended only when two preconditions are satisfied: first, there must not merely be doubts about the defendant's guilt; there must be convincing grounds for thinking that he is innocent. Nor is it sufficient for this purpose that the defendant is merely "technically" innocent of the offence. The grant of a free pardon is confined as far as possible to those who are innocent morally as well as technically.
This is the so-called "clean hands" doctrine. Before he recommends a free pardon, the Home Secretary must be satisfied both that the defendant had no intention of committing an offence and that in fact he did not commit one. Secondly, there must be good reason why the matter cannot be referred to the courts—the lapse of time since the original trial, for instance, or the nature of the evidence which has called the conviction into question.
The broad principles which govern the use of the Prerogative apply to cases tried summarily, just as they do to those tried on indictment. But the Prerogative is more freely used in the former category. The noble and learned Lord, Lord Elwyn-Jones, gave us the total number of cases since 1972. It was a little higher than the total number of cases which I gave since 1973, which is 2,146 for summary cases. This compares with something like eight over the same period for cases tried on indictment. One reason for this is that in summary cases there is no provision corresponding to Section 17 of the Criminal Appeal Act 1968 by which the Home Secretary can refer a case back to the courts. This is a matter which the Government have under consideration and to which I shall return later—but not much later.
Another reason for the freer use of the Prerogative in summary cases is that the much larger number of cases which come before magistrates' courts and the highly technical content of much of the legislation involved, particularly in road traffic cases—I believe it was the noble Lord, Lord Foot, who instanced some of them—make it almost inevitable that a number of clear miscarriages of justice will occur because of defects in prosecution and court procedure. In many such cases the defendant will, for reasons of which many of us will be all too readily aware, have pleaded guilty. If he has, he has no right of appeal against conviction and there is some legal doubt whether the straightforward remission of a sentence awarded in such cases would also remove any associated suspension or endorsement of a driving licence.
The "clean hands" doctrine is in practice therefore somewhat modified in its application to road traffic cases. A free pardon is normally recommended whenever a conviction resulting in an endorsement or disqualification is shown to be defective. A typical example of such a case is where a number of motorists have been convicted of exceeding the speed limit on a particular stretch of road and it is later discovered that the limit is, due to some procedural or technical defect, invalid: there was no speed limit. But in general the
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power to recommend the grant of a free pardonis used sparingly. The Prerogative is seen as a long stop, used in the last resort to rectify miscarriages of justice which the courts have failed to prevent and which they cannot reasonably be asked to put right. The nature and effect of the Royal Prerogative are not defined by statute—hence much reading by noble and learned Lords opposite.
A "free pardon" is regarded as relating to the conviction rather than to the convicted person. It is called, I should tell the noble Lord, Lord Foot, a free pardon because it is free from any conditions. It has nothing to do with its value. The warrant signed by Her Majesty the Queen, in which she signifies that it is her pleasure to grant a free pardon, contains the words:
"grant him our free pardon in respect of the said conviction, thereby pardoning, remitting and releasing unto him all pains, penalties and punishments whatsoever that from the said conviction may ensue".
The warrant is placed with the court record and its effect is to divest the conviction of any force or consequences so far as legal penalties are concerned. Steps are also taken to ensure that the conviction is expunged from police records.
The question whether a free pardon goes beyond relieving persons of the legal penalties attaching to a conviction has never been legally tested and the full and precise effects in law of a free pardon are not therefore beyond doubt. In the past, some authorities have considered that the grant of a free pardon cancels or annuls a conviction, but this is not settled law and is not beyond question. The alternative view is that a free pardon merely removes the penal consequences of a conviction and that that is all the prerogative power can do. In other words, it absolves a convicted person from all or any of the punishments imposed by the court but does not actually quash or annul the conviction in quite the same way as an appellate court can. This is so, even though measures are also taken, as I have explained, to ensure that the conviction is not held against the person in any future proceedings, at least without the pardon also being mentioned. The difference between a free pardon and having one's conviction quashed is therefore a fine and perhaps rather academic one, but it is conceivable that it might occasionally give rise to a feeling of injury. The noble and learned Lord, Lord Elwyn-Jones, was quite right to suggest that it was not a simple matter, although it affected a large number of people.
There has, as a result, been a longish search for a preferable alternative. Terms such as "acquittal by Royal Prerogative", "absolute vindication" and "annulment of conviction" have all been considered; but so far no such expression has been thought to be entirely satisfactory. This is usually because they have a judicial flavour and might blur the distinction between the prerogative and judicial processes, which it has been considered important to preserve.
The noble Lord refers in his Motion to the Sixth Report of the Home Affairs Committee. They recommended, inter alia, that the term "free pardon" be replaced by some word bearing the correct connotation of annulment, and so on. But, as I have mentioned, as the law stands at present a free pardon, however it is expressed, does not in fact carry that connotation. As was stated in the Government's

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response to the Report, and as the noble Lord has helpfully acknowledged, to confer such power would require legislation. This is not, therefore, a straightforward matter of a change of name.
Earlier, I referred briefly to the consideration now being given to possible legislation in respect of those cases tried summarily which are eventually seen to be defective and which, in the absence of any other legal remedy, now attract the exercise of the Royal Prerogative. The Government are considering proposals which would reduce the number of cases in which the Royal Prerogative would be necessary in such circumstances. The obvious remedy is to provide a power to refer questionable convictions recorded in summary proceedings back to the courts.
I think your Lordships will probably agree that legislation to enable that to be done calls for higher priority than legislation to alter the effects of a free pardon or to change the name by which it is known. The number of cases in question is very much greater, and getting them out of the way, so to speak, would simplify the remaining issues concerning free pardons and their effects.
My Lords, the Government are most grateful to the noble Lord for leading the discussion which they have invited on this issue and giving me the opportunity to give a disproportionately full answer to the debate. He has given us a good deal to think about and we shall certainly reflect on the matter in the interval before any suitable legislative vehicle comes before Parliament.
Lord Airedale: My Lords, I am most grateful to all noble Lords who have taken part in this short debate and to the Minister for his lucid explanation of how the system works. In a word, my concern is this. If a typical family reads that Jim has been granted a free pardon, if they have access to Stroud's Judicial Dictionary they will arrive at the conclusion that he has been entirely acquitted from all blame; but my fear is that, the way things are, many of them will suppose that Jim committed an offence for which for some special reason they do not understand he has been granted forgiveness. That is the state of affairs which I am seeking to change. The Government have asked Parliament's opinion. Your Lordships have expressed your opinion this evening. I think it very much supports the case that I presented to your Lordships.
On Question, Motion agreed to.

Standard Chartered Merchant Bank Bill
Returned from the Commons with the amendments agreed to.
House adjourned at a quarter-past ten o'clock.