Family Law Bill [H.L.] (Hansard, 26 June 1986)

§ Lord Mishcon
My Lords, on the last occasion, at the Committee stage, it was rather jovially suggested that I, who had to be out of the country at the time on professional business, had deliberately arranged it so in order that I might avoid the wrath of the noble and learned Lord the Lord Chancellor, which was very vocally expressed, at certain suggestions that were made by the Law Society.
I would never have tried to avoid the noble and learned Lord's wrath because I know well—it is a matter of history—that one of his many engaging attributes which have been practised in the legal profession and in Parliament in a distinguished way over many years is that whenever the noble and learned Lord feels that he has merely an arguable case the voice is raised, the fist beats down upon an innocent table and superlatives are interspersed with superb rhetoric. I know, too, that the Bishops' Benches have sometimes suffered the harangues of the noble and learned Lord—all given and taken in good part—and I believe that they are comforted by the biblical recollection that when the Almighty wished to persuade Elijah into rational behaviour, His voice was not in the tempest. His voice was not in the fire, it was a still, small voice.
The noble and learned Lord has been very gracious today in the way in which he has introduced these amendments. My recollection of the words that were used when the Law Society, through the very eloquent mouth of my noble and learned friend Lord Elwyn-Jones, expressed certain views about Clause 64(1) of this Bill is that the noble and learned Lord ranged, in describing various arguments of the Law Society, between "absolute nonsense" and "arrant nonsense". I forget which of those adjectives was applied to the way in which the Law Society drew attention to the wording of Clause 64(1), which gave to the rule-making authority in family proceedings the right to amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts so far as may be necessary in consequence of provisions made by the rules.
The anxiety was expressed that although this followed precedent the Family Division and family proceedings were of a very specific nature and, unlike other civil proceedings, there are matters which can be drawn within the ambit of practice and procedure which vitally affect the rights of parties. One example that can be given is that under the provision as it stood in the Bill it would indeed have been open to the rules committee to have decided, for example, to dispense with the requirement of the judge's certificate that arrangements in regard to children are in order before any court grants a decree absolute.
420 Therefore, on reflection, the noble and learned Lord has graciously, by implication, withdrawn the descrip-tions of "arrant nonsense" and "absolute nonsense", and has decided most graciously, as I say, now to propose these amendments which follow the line of argument of the Law Society. He has also been good enough to pay tribute to them. My Lords, I am more than content.

§ Lord Meston
My Lords, so far as I am concerned, the noble and learned Lord has certainly bought good-will with these amendments. We are grateful for the amendments, which remove any doubt as to the extent of the powers given under Clause 64(1). At the Committee stage the noble and learned Lord vigorously removed most of the misgivings and many of the misapprehensions about Clause 64(2), and we were also grateful for that. Nevertheless, misgivings will perhaps remain, at least until we in fact see the rules under Clause 64(2) in operation. But it would not be right to debate the matter further, and it would certainly not be right to delay the passage of this otherwise very useful Bill.

§ Lord Elwyn-Jones
My Lords, may I also be permitted to congratulate the noble and learned Lord and thank him for his conversion on the road to the Woolsack, by acknowledging in this amendment at least some of the veracity of what was said at an earlier stage, which he so eloquently dismissed as arrant nonsense?

§ The Lord Chancellor
My Lords, I am indeed flattered to be compared to Elijah. I seem to think that the noble Lord, Lord Mishcon, was aiming even higher when he compared his own voice to a still, small voice. I would not aim so high myself. I am completely unconverted, but I thought I would bow for peace and quiet.