HL Deb 22 April 1986 vol 473 cc1092-106

4.1 p.m.

Second Reading debate resumed.

Lord Meston

My Lords, perhaps I may now return your Lordships to consideration of the Family Law Bill. I should like to join in thanking the noble and learned Lord the Lord Chancellor for his detailed introduction to this Bill, which is indeed a complex but important measure. Part I of the Bill is most welcome. It introduces overdue reform in the area of recognition and enforcement of child custody and related orders within the national jurisdictions of the United Kingdom. It is the unadulterated product of a Law Commission report and indeed complements recent legislation in relation to child abduction.

In dealing with the practical problems which arise in this area of the law one is often faced with the question: what weight should be given to the fact that there are other proceedings concerning the child in question in another jurisdiction? Hitherto the courts in Scotland and in England have almost invariably expressed respect for child custody and other orders made in the other jurisdiction, but sometimes that respect is a little guarded, and even if an English court gives effect to a Scottish order, as it will usually do, it is not without feeling the need to reconsider the matter in varying degrees of depth.

Reconsideration of the welfare of a child is not always a bad thing in the interests of the child, but the reality is that it is usually the result of a desire by one or other of the parties to the litigation, out of a sense of grievance, to have a second bite at the same cherry. It is undesirable that the same issues relating to the same child should be ventilated within two courts applying the same criteria in the same manner.

Perhaps I may briefly give your Lordships an example in the form of a case in which I was involved. The parents of a girl aged six separated; the mother and child went to Scotland, the father remained in London. Two years later the father went to the Scottish courts, applied for custody, and after a full two-day hearing in front of a senior judge of the Court of Session custody was granted to the mother. The father of course was allowed access to the child, but at the end of the very first period of access allowed by the judge to the father back in England he decided to hang on to the child. Therefore, the mother had to come to England and make the child a ward of the English court.

There were further hearings and an appeal to the Court of Appeal, at the end of which the child was restored to the mother, as the Scottish judge had ordered some two months before. That was a classic example of unnecessary duplication of litigation and more than duplication of the expense and anguish to all involved. Had this Bill been enacted, that would not have occurred. Part I of this Bill rests on the very sound proposition that the best interests of the child usually require there to be simply one set of proceedings to decide what is best for that child.

However, this Bill works not only by giving rules for recognition of custody orders, but by providing a mechanism for deciding which jurisdiction has priority, and a mechanism for enforcement. It is not all negative and deterrent. There are positive benefits which I can perceive in that it will instill confidence in both the courts and the custodial parent in allowing access out of the immediate jurisdiction of the court.

One of the awkward questions which one's clients have the habit of asking is: what happens if he does not return the child at the end of the access period? Now one can say what can happen. The mechanism of this Bill, if enacted, will allow a custody or access order to be registered in another jurisdiction and, if necessary, swiftly implemented.

Part II of the Bill introduces reforms recommended by the Law Commission in another area, with certain modifications. As the explanatory note says: a more restricted approach than that recommended by the Law Commissions is adopted in relation to the recognition of overseas divorces granted otherwise than by judicial or other proceedings". Most practising lawyers, if they are honest (which, of course, by definition they always are) do not find it at all easy to deal with cases in which the validity and effect of foreign divorces fall to be considered. As the noble and learned Lord the Lord Chancellor indicated, the Law Reports are stuffed full of cases involving consideration of talaq and gets, and other procedures. This is a problem which is on the increase, partly of course because of the increase of our immigrant population, but also now because financial relief is available in the English courts, and I think the Scottish courts, to those who were divorced abroad. This is peculiarly an area of the law in which trying to remove one lot of problems thrown up by one set of recognition rules can easily create another set of problems. It is very difficult to get the right mixture of simplicity, certainty and fairness.

In a Second Reading debate I shall not dwell on technicalities, but two points occur to me on Part II of the Bill. I can best illustrate this by an example. As I understand it, under the present law if, for example, two Israelis domiciled in Israel obtained a get in France, our courts would recognise the divorce irrespective of whether the French courts would recognise it. Under this Bill we would not recognise it even if the French courts were to recognise that procedure. That would seem to me to be unjust and indeed to store up further complications affecting the capacity of the individuals to remarry. Why should our courts not recognise something which the court of common domicile of the parties concerned would recognise?

One of the modifications to the Law Commission's recommendation finds its way into Clause 51 of the Bill. That clause provides a discretion to refuse recognition on certain bases. One of the grounds on which recognition can be refused is the absence of official documentation. This is a new requirement and, frankly, one questions the necessity for it. Now that the husband—and it is usually a husband, as the noble and learned Lord has said—cannot cheat a wife of access to the English courts for financial relief, there is perhaps less reason to be restrictive in recognition of talaq divorces and other similar forms of divorce. One can only surmise that the real reason for a requirement of the official documentation is to make the job of officials, and in particular immigration officials, easier. There was no need for documentation before. Expert evidence in appropriate cases usually sufficed, and this requirement may well cause hardship to those who come from countries where there is simply no mechanism for producing such documentation.

If one looks at what is required, one sees that it is not a document saying that a person is divorced; it is a document certifying that the divorce is recognised as valid under the law of that country. Even in sophisticated legal systems such a document may not be easy to obtain. It may often involve the parties having to go to the court of the other country to obtain appropriate certification of validity. This is compounded by the fact that the requirement is subject to discretion in the use of the words "may be refused". It will be difficult to advise the individuals concerned and it may be difficult for the officials for whose benefit presumably this requirement was introduced.

Part III of the Bill is also welcome. It introduces into an area of hotch-potch, as the noble and learned Lord said, a measure of rationalisation, although we must bid a nostalgic farewell in passing to jactitation of marriage, which we shall have to learn to live without, and the Greek Marriages Act.

Last, but not least, there is Part IV and Clause 64. We must guard against looking for hidden menace in an enabling provision tucked away towards the end of an essentially uncontroversial Bill. I also guard against subjecting your Lordships to a grumble about lawyers' fees, as to which I must declare an interest as someone who primarily earns his living from legally aided family law work. But the noble and learned Lord, Lord Elwyn-Jones, is right. There is considerable concern for those who practise in this area of the law.

Since 1949, lawyers who have been prepared to deal with legal aid litigation have been entitled by statute to fair remuneration as taxed, and that means as assessed by an independent taxing officer. It is meant to be fair remuneration. We sometimes beg to differ. It is certainly not generous remuneration and in High Court cases it is 90 per cent. of fair remuneration by reason of some legislative quirk lost in the depth of history. The underlying purpose of the change in the law proposed by Clause 64 is, as I understand it, to enable rules to be made to standardise fees in order to reduce the scope for discretion in allotting fees to the legal profession.

The concern of the legal profession is that these changes are not likely to have been introduced to increase our fees, and the question is asked: if they have not been introduced to decrease our fees, what is the point? The legal profession takes the view—and we are the people who deal with this work—that the range of work is so varied that standardisation of fees is inappropriate. This is an area of the law where there are seldom easy answers. Both in financial and in children's matters there is a vast range of discretionary factors to be taken into account by the courts and by the lawyers in advising the litigants. The work has an immediacy and an importance which sometimes perhaps are absent in other forms of work. Efficient and careful preparation is vital in everything.

This is not an area of concern simply to the individual lawyers. As the noble and learned Lord, Lord Elwyn-Jones, said, it is a matter of public interest. The risk is that there will be created a two-tier profession: those who will and those who will not take legal aid work. That gulf already is beginning to appear and it will widen. The best lawyers, by whom I mean the most successful, should feel able to take legal aid work and, conversely, the legally aided public should not feel that they have to go to lawyers that they perceive as second best. To create this gulf is to limit the choice of the public.

If I may give a practical example of what may go wrong by way of illustration, a man of modest means goes as a paying client to a solicitor; his funds run out and he is eligible for legal aid. But the solicitor says "I am afraid that I won't take legal aid work". What does the client do? He has either to soldier on with the solicitor of his first choice as a paying client although he is eligible for legal aid or to find another solicitor who has to duplicate much of the work that has already been done at public expense, with the result that there will be considerable delay and detriment to both parties to the litigation.

I can only repeat that the system of independent assessment of legal aid fees has existed for approaching 40 years. It has existed under primary legislation and it should not be swept away by regulations under subordinate legislation. I ask the Government to note our concern. With those reservations, this Bill is most welcome.

The Lord Chancellor

My Lords, before the noble Lord sits down, I should like to correct one thing that he said. It is this. He is wrong in thinking that the legal aid regulations have gone on for 40 years. They are constrained by rules of 1979 which I cannot change. What has happened since is that registrars and others who have had to work the system have had to do it without the limits of discretion, because the 1979 levels are wholly out of date. If Clause 64, with whatever disadvantages or advantages it may have, goes through, as I hope it will, the discretion element in the taxing master will remain.

4.18 p.m.

Lord Campbell of Alloway

My Lords, from these Back Benches I pay tribute at the outset to the work of the Law Commission and congratulate the Government on a thoroughly useful and excellent Bill. I also make one point of criticism which of course relates to Clause 64. This has been referred to by the noble and learned Lord, Lord Elwyn-Jones, as an unattractive addition, an intrusion, a blot and a black mark, and, with respect, I go along with that.

The way that I look at the clause is as a suspect appendix, which is ripe for excision, to an otherwise excellent Bill. Removal of this clause would in no way affect the principle of the Bill or its intent. Clause 64(2) overtly proposes provision for a disparity of treatment between legal aid cases and private work, and this to be entrusted to a rule-making authority.

Three questions to my mind arise. The first is this. Is this disparity to include matters of practice and procedure under Clause 64(1)(a) or is it only related to the introduction of fixed rates or scales for legal aid work under Clause 64(1)(b)? As the noble and learned Lord, Lord Elwyn-Jones, pointed out, there is no expressed limit; no clear provision.

The second question is this. If fixed rates and scales are to be introduced, what machinery will be established to ensure that the expectations of reasonable remuneration are fulfilled? These would be in place of the existing case-by-case assessment by local taxing masters and registrars. This is a matter of concern to the Bristol Law Society (founded in 1770), which has written at length on the subject. As a member of the western circuit, I respectfully draw the matter to the attention of the House.

The third question and the last is this. If the fundamental principles of legal aid are to be abrogated—that legal aid shall not affect the relationship of the client, the solicitor and the barrister or the quality of the service—is it at all expedient that this should be left to a rule-making authority? Is it not, notwithstanding precedent, as the noble and learned Lord, Lord Elwyn-Jones, said, a matter which lies on the face of it within the prerogative of Parliament?

On the last occasion when my noble and learned friend the Lord Chancellor was moving subsidiary legislation concerned with legal aid I supported him. I supported him in the belief that, notwithstanding all other considerations, the quality of the service would be maintained and available for all, irrespective of legal aid or private work. I said so and I believed what I said. My concern today is that when I said that I had not seen Clause 64. I was not aware of its existence. Now I am genuinely concerned that Clause 64 could detrimentally affect the quality of legal aid work and matrimonial and family proceedings. I seek a measure of assurance.

I agree that the degree of quality required in cases concerned only with the issue of dissolution of marriage, whether contested or not, is virtually non-existent. Indeed, an uncontested divorce has all but become a matter of consent, subject to formal approval by the court. But such cases where there is only that issue are extremely rare. The general rule is that there is this question of the ancillary provisions for financial relief in which highly complex issues of revenue law and property questions arise. Here a high standard of specialist expertise is requisite, irrespective of whether the case is legally aided. Indeed, one might say that the smaller the means one's client has, the more important it is to him that this complex issue of financial provision should be properly and fairly resolved.

Then there is the question of the welfare and the custody of the children. Again, there are questions of financial provision and of expertise. Perhaps the most important aspect of the dissolution of marriage is the interests of the children. Surely in this area it would be unacceptable to have a disparate quality as between those who have private representation and those who have legal aid. Not only could it be said to be unacceptable, but to an old fashioned practitioner like myself it could appear abhorrent.

The replacement of the existing case-by-case assessment by taxing officers and registrars, who know their job, by a sort of civil servant, who I think is called a "determining officer", who applies fixed rates and scales and who does not know his job, has occasioned much trouble in relation to criminal legal aid. In the old days for criminal legal aid on the western circuit—I think it was the same everywhere—the clerk of arraigns did a case-by-case assessment. He knew his job. It was always fair, and there was never any trouble. It is the new system which has come in where the determining officers assess by scales that has caused all this trouble. This is the system which Clause 64 seeks to authorise and introduce in place of the existing system which certainly in the opinion of the Bristol Law Society works satisfactorily.

In conclusion, the question is, if Clause 64 is to stand—and it has no logical connection with the Bill as a whole—what machinery is proposed to ensure that the fixed scales, the rates, that are to be introduced by this rule-making authority are adequate so as to prevent any deterioration in the quality of this important professional service? If the rates drop below what is reasonable, so will the quality. I do not believe that that would be generally acceptable to your Lordships' House. On this I also seek a word of assurance, if it is possible for him to give it, from my noble and learned friend when he winds up.

In particular, I wonder whether one can take comfort from the words in the Explanatory Memorandum: The Bill is not expected to have any financial effects". If the Bill is not expected to have any financial effects, if the object of Clause 64 is not, so to speak, to reduce the legal aid expenditure, then it would be easy to give some measure of insurance so that the supervisory machinery would be such to ensure that fair remuneration is paid under the proposed new system so that the quality of the service shall not deteriorate.

4.27 p.m.

Lord Mishcon

My Lords, in dealing with a Bill which relates to family law, the House (and it should appeal to it very much) is dealing with matters that now affect, unfortunately, a growing number of homes, families and people in the United Kingdom. There is no doubt, as my noble and learned friend Lord Elwyn-Jones, made very clear in his speech, that there will be agreement from these Benches with the main policies that flow from this Bill; those policies in turn flowing from three very useful reports of the Law Commission.

Compliments have already been paid to the Law Commission. The commission does not require it from me, but I should say how much we appreciate the growing custom at the end of these useful reports to prepare draft Bills (that I observe have been copied very faithfully in parts of the Bill we are considering today) and to add to that benevolence explanatory notes of its own Bill which is most useful to those who are trying to study the legislation now before the House.

So I turn now, if I may, to a minuscule point, and I emphasise how minuscule it is only when dealing with the explanatory notes and only to tidy up, if that be necessary and I am not wrong. In the Bill before us I noticed that the Explanatory Memorandum on page v under Part II and in thefirst paragraph, there appear to be some words omitted which do not make sense to me, although that may be a sign of my own deficiency in intellect. The last sentence appears not to be in the slightest degree clear, and I believe that the sentence starting "Moreover" and continuing a few lines later with "provides" has some words omitted. I point that out only, as I say, so that a correction can be made if I happen to be right.

As has been said, when we deal, as we deal in Part I, with the question of a child custody and clearing up the various vagaries that exist now both in jurisdiction and enforcement, this Bill fulfils a very useful purpose. I wonder how many members of the lay public would realise that custody orders at the present moment made in one part of the United Kingdom are not necessarily enforceable in another part; so that at present you can actually have custody orders in regard to the same child in different United Kingdom courts at precisely the same time. Such a system cannot be in the interests of children or parents, and it is obvious that in clearing up the question of jurisdiction and enforceability, the Bill, in conformity with the recommendations of the Law Commission, is fulfilling a most useful service.

In his opening speech, which all of us welcomed so much, the noble and learned Lord the Lord Chancellor in this context referred to Clauses 25 to 32 and explained why it was that in regard to mutual enforceability within United Kingdom courts, if I can put it that way, the age limit of the children was 16 and not 18. He further explained that our own courts can make custody orders up to the age of 18. The Scots courts cannot: they go up to only 16. With that reasonableness for which he is always known, the noble and learned Lord said, thinking back on English and Scottish history, that victory has to be yielded to the Scots courts because it would possibly be difficult for them to be asked to enforce orders of our courts, the Welsh courts or the Northern Ireland courts, where in fact there was jurisdiction to make orders up to the age of 18.

I pose the question: why is it difficult for a court to do that? They will have to enforce orders of foreign courts under our previous legislation where those courts have a different kind of jurisdiction and rules that are different from those that we practise. If there is any difficulty, is it too much—I ask this of the noble and learned Lord the Lord Advocate—that for once England, Wales and Northern Ireland ask the Scottish law authorities, "Don't you think on reflection that it can be useful at times to be able to have custody orders up to the age of 18? What harm will it do you if you raise the age of 16 to 18 in order that we have some uniformity and so that there can be that amount of unification of our laws across the Borders?"

Having posed that question, I pay tribute to what is now in Chapter VI of the Bill, where there are such useful provisions to assist the courts throughout the United Kingdom to order the disclosure of a child's whereabouts, to order a child's recovery when the child is not given up in accordance with a custody order, and—the most practical and useful provision—for the surrender of a passport where that has been issued to the child or where there are particulars of that child on the passport and in the case where there is a prohibition in regard to the child leaving the United Kingdom, or part of it, without a court order.

I pass now, if I may, in this humble winding-up speech, to Part II of the Bill. Part II, as the noble and learned Lord the Lord Chancellor says, gave effect to the Law Commission report on the recognition of foreign nullity decrees and related matters. One might have thought that was a very abstruse subject which had no practical application at all; and possibly to courts and parents in regard to their family affairs it may not have a great application. But it does have a very useful application, as was very sensibly pointed out in the Notes on Clauses, which I have had the privilege of receiving and for which I thank the noble and learned Lord's department, in that these provisions relating to nullity and the recognition of foreign nullity decrees are of the utmost importance to people like immigration officers, inspectors of taxes (for very obvious reasons), to trustees and, I suppose, to people who deal with the administration of welfare provisions in our various offices that handle those matters.

Therefore it is not just an abstruse matter that we are looking at. Indeed, as the noble Lord, Lord Meston, said, when we start dealing with matrimonial proceedings which are not the subject of judicial process, we are dealing now with matters of great importance to a number of our citizens in our multiracial community. Talaq was mentioned by the noble and learned Lord. I appreciate very much the reasons he gave for not following the recommendation of the Law Commission in this respect. I can well see that on public policy grounds the unilateral nature, as the noble and learned Lord put it, of these talaq divorces (largely, if not exclusively, open to the husband), the lack of proof, the difficulties about lack of financial provision, and so on, all made the Government feel that it was not a recommendation they would want to follow in allowing these decrees (if one can call them that) to be recognised and followed by our courts.

However, I should like to know from the noble and learned Lord, if he could help me, whether there has been any protest at all from the Moslem community in this country, which is of course quite a sizeable one, what the nature of their submissions is and whether they feel quite content with the provisions of this Bill in that context.

I turn now to Part III of this Bill. That relates to declarations in family matters. It follows closely the recommendations in the appropriate Law Commission report. I only add this. Some humorous remarks have been made, justifiably, about the suit of jactitation of marriage. I readily say to the noble and learned Lord that that is not something that solicitors practising legal aid have often to consider, and that applies even to those who do not have to look after legal aid cases. It is absolutely right that that suit, which is so anomalous, should be abolished. It arises when you are embarrassed by somebody declaring that you are married to them and, conversely, that he or she is married to you. A person goes to the court and asks for a declaration that that embarrassment should cease and that the court should declare that no such marriage exists and that there should be an injunction restraining the other party from saying that the marriage exists.

If that be a slanderous or libellous matter, there are remedies available in the civil law, and as has been said, I think rightly, it can equally be extremely damaging to say wrongly that one is the child of somebody or the brother or sister of somebody. In those circumstances there is no remedy such as jactitaction available. As with the Greek Marriages Act, about which comment has been made, I think that the time is right for the abolition of such remedies.

I conclude with a question about Clause 64. I shall not repeat the points that have already been made so lucidly by my noble and learned friend Lord Elwyn-Jones and the noble Lords, Lord Meston and Lord Campbell of Alloway. I should hate the House and the public to gain the impression that when considering and opposing the clause we are dealing with a profession which only has in mind rewards of a material nature as the way in which it is guided in its professional conduct. The legal profession, of which I am proud to be a member, has an outstanding record of public service in this country, whether it is with regard to legal aid centres, legal aid, free advice centres or whatever. I hope that the profession will continue to have that reputation, but there is a principle at stake. I shall not quote again examples of firms which are closing their legal aid departments, though it happens to be true, because they cannot afford to keep them, not because they want to do so. They are closing them for no other reason; they cannot afford to keep them.

I shall say merely that the principle was sacrosanct. The noble and learned Lord, if he will forgive me for saying so, was caught by that principle. The principle was sacroscanct that the same treatment should be accorded to people who sought legal aid as that accorded to those who could afford to go privately to their lawyers. There was to be a right of choice. There was to be a right of fair remuneration for those who served a legally aided client. In an attempt to alter that, which I am sure was an attempt made in good faith, the noble and learned Lord found that it was not possible to go against that principle unless something was put into an Act of Parliament and Clause 64 resulted.

I ask the noble and learned Lord the Lord Advocate—we can look at the wording of the clause hereafter—to give this simple assurance: does that clause enable that principle to be broken? Is it the firm intention that a taxing master or registrar, having looked at the work done and the nature of it, will be able to award precisely the same costs as that registrar or taxing master would have been able to do when taxing on solicitor and own client or on a common fund basis when dealing with a solicitor who was looking after a private client? I ask for that firm assurance and then we shall know where we stand in Committee.

Having said all that, perhaps I may say, as my noble and learned friend said, that this is a good Bill. It has, however, a couple of clauses that must be looked at carefully and which may have to be amended.

4.45 p.m.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, I am grateful to all those who have spoken from your Lordships' Benches on this Bill. I should like to add my compliments to both Law Commissions upon the reports from which the Bill has sprung. Anyone, whether he be solicitor, advocate or barrister, who has had to deal in this realm of law realises the problems that can arise—first, with regard to the custody of children, which is dealt with in Part I, and, secondly, with regard to the recognition of divorce and the like in Part II, and the necessity, as the commissions recognised, of trying to clarify and simplify the law in those realms.

The Bill also goes into realms with which I am bound to say I am unfamiliar, but from all that has been said I take it that there, too, the Bill has attracted a widespread and general welcome.

I do not wish to detain your Lordships over-long in replying, since the welcome has been so general, apart from commenting on one or two points. I shall take, as it were, the minuscule point that the noble Lord, Lord Mishcon, raised at the outset. I assure him that he is absolutely right. His eagle eye has detected a flaw in the Explanatory Memorandum which will be put right when the Bill is reprinted.

The next point with which I wish to deal is one which was raised by the noble and learned Lord, Lord Elwyn-Jones, with regard to Part I and the reference there to the habitual residence test. That of course was something at which the two Law Commissions looked. They dealt with it in paragraphs 4.15, 4.16 and 4.17 of the Law Commission report No. 138 and the Scottish Law Commission report No. 91. Their recommendations are in paragraph 4.18 of the report.

The view that the Law Commissions took was that it would be appropriate not to have a definition within the statute. They observed that the term was one which had been used in other statutes and had not given rise to difficulty. Furthermore, in paragraph 4.15, they note: Habitual residence, moreover, is a criterion of jurisdiction which is likely to be recognised abroad. It has been used widely in international conventions", including of course the two conventions that formed the basis of the Act which passed through Parliament last year. I suggest that there is always a danger in having too much by way of definition of a phrase such as "habitual residence", and that it is best to leave the courts, by using a flexible and common-sense approach, to reach a conclusion. Otherwise, there may well arise the very anomalies which it is desired, certainly in this and in other parts of the Bill, to do away with.

The next matter to which I turn is a point that was raised with regard to child custody by the noble lord, Lord Mishcon. Perhaps as a Scotsman I have to be cautious in what I say about our system. The matter was again thoroughly dealt with by both Law Commissions, and in particular they dealt with it in paragraph 1.22 of the same report. Perhaps I may usefully read out what appears in part of that paragraph, because it is important. It is dealing with the point, after they have indicated that the jurisdictions of the courts in England and Wales and in Northern Ireland would continue in so far as custody orders were concerned in respect of persons under the age of 18, while the jurisdiction of the Scottish courts would in general remain limited to those under 16.

They said this: As regards the recognition and enforcement of custody orders"— that is important; they are not intending to deal with the ability and capacity of the courts themselves to make orders— the two international Conventions to which we have referred above are confined in their application to children under the age of 16. Of course, those are the two conventions which are now to be found in our law and in each, as noble Lords will be aware, it is made plain that once a child has reached the age of 16 the provision in the Act does not apply.

The paragraph continues: The consultation paper, on the other hand, defined the term 'child' to mean any person under the age of 18, and its provisional proposals were framed accordingly. The choice of any particular age for the purpose of our recommendations on recognition and enforcement is not an easy one. We are, however, influenced by the fact that a person over 16 has a mind of his own which cannot easily be ignored by his parents or by the court. Moreover, it would not be satisfactory to require a Scottish court to recognise and enforce orders relating to persons over 16 made in England or Northern Ireland when the Scottish court could not itself make such an order. There would also be advantages in adopting throughout the United Kingdom the same age limit as that specified in the international Conventions"— that is, 16. We therefore recommend that our proposals on the recognition and enforcement of custody orders should be confined in their application to persons under the age of 16. I turned to Appendix C in the same report and I observed that while the working paper went out with provisional suggestions about the age of 18, there were obviously considered by the Law Commissions very carefully a number of comments from fairly formidable figures and organisations north of the Border. I have no doubt that with all the comments in mind they reached a proper conclusion. I do not think I should like to suggest that they should now depart from that. It would have consequences, as the noble Lord will appreciate, for the jurisdiction of the courts north of the Border.

I now turn from Part I to Part II of the Bill. The noble Lord, Lord Meston, raised certain points in relation to Part II; in particular, the issue of informal divorces. I think my noble and learned friend the Lord Chancellor made quite clear the reasons why it was thought proper, so far as informal divorces were concerned, to bring in certain restrictions. As he said, these divorces give insufficient weight to the importance of the change of status; there are problems as to the proof of the change of status; the divorces are discriminatory against women; they offer them very little protection and are liable to abuse; and those are the reasons which motivated the Government in departing from the recommendations of the Law Commissions.

I should also say, as the noble Lord pointed out, that the courts have jurisdiction to make financial provision orders in respect of foreign divorces, but the use of this jurisdiction would be difficult to invoke for a woman who had been divorced by an informal divorce, because of the problems of proof that these extra-judicial divorces present to the courts. However, I think it is right to remind the noble Lord that, so far as Clause 51(3) is concerned, there is no requirement for an official document, but where there is uncertainty as to whether the parties are truly divorced, either in fact or in law, it is right to give the courts this power—it is simply a power—to decline recognition if these parties cannot provide an appropriate certificate. Accordingly, that seems, I suggest, to be a proper way in which to proceed in such circumstances.

On this part of the Bill, I think that the noble Lord, Lord Mishcon, raised two points: first, so far as actions of nullity were concerned; and, secondly, on the issue of the attitude of the Moslem community. I entirely endorse what he said on the propriety of the Law Commissions dealing with the issue of the recognition of foreign nullity divorces.

It appears, as my noble and learned friend the Lord Chancellor indicated, that there has been consideration in earlier Hague conferences of the question of attempting to draft a convention, but it now appears that the matter is probably never likely to be subject to such an agreed convention. There are many reasons for it and they are to be found in such matters as the differences in the social and religious philosophies of participating states, differences in jurisdictional criteria and differences in conflicts theory and substantive law. It is only fair to say that there is another matter—a more practical one, so far as the international community is concerned—that the number of nullity decrees is small in every participating state and the conference itself, in 1970, did not consider it a sufficiently serious problem to warrant inclusion in a convention.

In regard to the attitude of the Moslem community, I am advised that no representations have been received from the Moslem community. In passing, I would just note that it appears that neither of the Law Commissions received any representations on their consultation paper either.

That takes me to the last matter, which certainly exercised most, if not all, of your Lordships, and that is Clause 64. I tread here with a certain degree of trepidation as I am aware of what is the next business in this House and that I am dealing with a matter of legal aid in England. It is right that I should at least make clear, if that is required in view of what my noble and learned friend has said, the reasons for this clause. It is a direct result of the Government's commitment to there being appropriate controls over the level of fees payable for legal aid work and in particular for legally aided matrimonial work which this year will account for some £78 million of the legal aid budget.

In the course of our debate this afternoon, just after the noble Lord, Lord Meston, sat down, my noble and learned friend pointed out that matrimonial costs are currently governed by the matrimonial causes costs rules of 1979. These contain rates which, as he pointed out, have not been reviewed since their introduction. Therefore registrars are being asked to work within a framework that has with the passage of time become unsuitable for the purpose for which it was introduced.

The proposed matrimonial costs rules will not fetter the taxing officers. They will still be able to exercise a discretion on the taxation of privately funded cases and they will be able to exceed the prescribed rates in legally aided cases where the circumstances so demand. The proposed rules are the result of lengthy and detailed discussions with both branches of the legal profession which commenced as long ago as April 1984. These discussions were carried out on the basis that in order to be effective the new rules would need to prescribe rates for legal aid work. Neither the Government nor the professions wished to prescribe rates for privately funded work. As a consequence of this it was decided that the new rules would need to differentiate between the two types of work, and the levels of the rates to be prescribed for legal aid work were settled last autumn.

The powers of the matrimonial causes rule committee do not allow it to make the necessary distinction between types of work, and interim arrangements differing slightly from those originally discussed with the profession were proposed until the powers of the rule committee were widened. I understand that the Law Society was unhappy about the introduction of interim arrangements and suggested that it might be better to await the introduction of provisions that would enable the rule committee to make rules in the form originally discussed. It is for that reason that the powers have been extended for the rule committee; otherwise it would be acting ultra vires.

The Government are committed to there being appropriate controls over legal aid expenditure and officials have carried out extensive discussions with the legal profession in order that these controls should be both effective and equitable. Concern was expressed in particular about the power to amend or to repeal any statutory provision relating to the practice and procedure of the—

Lord Mishcon

My Lords, before the noble and learned Lord proceeds to that matter, I wonder whether he will forgive me if I point out that the Law Society certainly—others will speak for the Bar—is most unhappy about the suggestions in this clause in regard to charges. Will he please make clear one thing if he can? Is it intended that for the work done which is legally aided work and the work done by solicitors for private clients, the taxing masters and registrars will be enabled to assess the costs on precisely the same basis; or will different principles apply? Will this mean that the legally aided solicitor will get less?

Lord Cameron of Lochbroom

My Lords, I was hoping at least to respond before I sit down to the matters which the noble Lord has raised. Perhaps I may leave that over. I have not omitted it. Whether what I say will be thought by the noble Lord to be a response is a matter for him, but I assure him that I have not forgotten it.

The proposal in Clause 64 that the committee should be enabled to amend or repeal certain statutory provisions is, as the noble and learned Lord, Lord Elwyn-Jones, pointed out, one which is precedented. It is intended as a power that will be used where a desirable change in the practice of the procedure of the courts is otherwise prevented by earlier statute provision. I should point out that it will be exercised by a rule committee, which is a body made up of members of the judiciary, practising barristers and solicitors and which will of course be subject to annulment by resolution of either House of Parliament.

I point out again that Clause 64 is an enabling provision. It ensures that the rule committee's powers are sufficiently wide. Before the "changes"—I use the word in inverted commas—which have formed the basis of certain apprehensions could be made, there would inevitably and necessarily be further consultations and further opportunity for the profession to make representations both to my noble and learned friend and to the rule committee. Indeed, I understand that lengthy discussions have taken place with the Law Society and the Bar. These will continue on the form and substance of the proposed rules.

The noble Lord, Lord Mishcon, asked me for certain assurances. The first was in relation to the principle of equal treatment. At present the taxation of legal aid bills is already different inasmuch as many of the bills would, if not for legal aid, be taxed on the more generous solicitor and own client basis. The Government have no present wish to introduce greater controls over privately funded work. With regard to publicly funded work, different considerations must be relevant.

The second assurance was in regard to the level of fees. What is proposed is the introduction of standard rates across the country based on a survey which was discussed with the profession. There is no intention to reduce the levels of remuneration found in that survey. Annual reviews of the prescribed rates will be conducted.

It may be that the noble Lord may not regard those as being the assurances for which he asked, but I think I am entitled to make this point. Contrary to something that the noble Lord said—that there was already evidence to suggest that the number of solicitors undertaking legal aid work has declined—the figures available up to the present time would not suggest that that was the case. In the first years in which the figures were collected—that is, 1981–82—some 9,460 firms of solicitors received payments from public funds. In the last year for which figures are available that number had risen steadily to more than 11,000. My noble and learned friend the Lord Chancellor has had no complaint from members of the public about the difficulty of obtaining legal representation in legally aided cases.

Lord Mishcon

My Lords, I hate to interrupt the noble and learned Lord again and I promise that it is the last time. Has he read an article in the Observer of 6th April headed: Legal aid system close to collapse"? If he has not read it, will he be good enough to do so?

Lord Cameron of Lochbroom

My Lords, I hesitate to say that I do not read the Observer. I am grateful to the noble Lord for having brought that article to my attention. I shall bring that article and the headline, which may not be entirely in accordance with what is in the body of the article, to the notice of my noble and learned friend.

Lord Elwyn-Jones

The noble and learned Lord has already read it, my Lords.

Lord Cameron of Lochbroom

My Lords, knowing my noble and learned friend's wide catholicity of Sunday reading, I am sure that he will have read that article.

Lord Mishcon

Indeed, my Lords, he has already described it.

Lord Elwyn-Jones

Monosyllabically, my Lords!

Lord Cameron of Lochbroom

My Lords, as I said, my noble friend Lord Campbell also made certain points about Clause 64. In what I have said I have attempted to answer both the points that he raised and those raised by other noble Lords. My noble and learned friend will keep very much in mind the criticisms that have been made about the proposals and the fears that have been expressed. I suggest that they are not merited, but they are matters that are perhaps best discussed in Committee. I am grateful to all noble Lords who have given a general welcome to what I suggest is a most useful measure of law reform. I beg to move.

On Question, Bill read a second time and committed to a Committee of the Whole House.