HL Deb 01 May 1990 vol 518 cc901-15

3.3 p.m.

The Lard Advocate (Lord Fraser of Carmyllie)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Fraser of Carmyllie moved Amendment No. 286G: After Clause 42, insert the following new clause: ("Drug trafficking confiscation orders Registration and enforcement of external confiscation orders. The following sections shall be substiuted for section 30 of the Criminal Justice (Scotland) Act 1987— "Enforcement of other external orders. 30.—(1) Her Majesty may by Order in Council— (a) direct in relation to a country or territory outside the United Kingdom designated by the order ("a designated country") that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there; (b) make—

  1. (i) such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order; and
  2. (ii) such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act: and
  3. (iii) such incidental, consequential and transitional provision, as appears to Her Majesty to be expedient; and
(c) without prejudice to the generality of this subsection, direct that in such circumstances as may be specified proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified. (2) In this Part of this Act— external confiscation order" means an order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and modifications" includes additions, alterations and omissions. (3) An Order in Council under this section may make different provision for different cases or classes of case. (4) The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion. (5) An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament. Registration of external confiscation orders. 30A.—(1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—
  1. (a) it is satisfied that at the time of registration the order is in force and not subject to appeal;
  2. (b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and
  3. (c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.
(2) In subsection (1) above "appeal" includes—
  1. (a) any proceedings by way of discharging or setting aside a judgment; and
  2. (b) an application for a new trial or a stay of execution.
(3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.".").

The noble and learned Lord said: In moving this amendment it might be convenient if I indicate at this stage that I am speaking also to Amendment No. 304AA which is consequential. Although at first sight these amendments look formidable they are in fact purely technical. They correct a deficiency in the Criminal Justice (Scotland) Act 1987 with regard to requests from overseas countries for the confiscation of proceeds of drug trafficking.

The problem of drug trafficking is of concern to governments world wide. With a view to assisting enforcement authorities in other countries in the fight against drug trafficking, this Government have been concluding agreements with various foreign countries on mutual assistance in tracing, freezing, and confiscating the proceeds of drug trafficking. Agreements have been signed with a number of countries including the United States of America, Mexico and Spain. Unfortunately, because of the deficiency in the Criminal Justice (Scotland) Act 1987, it is not possible for us to make an Order in Council extending these agreements to Scotland. The amendments before the Committee would rectify that position and bring Scotland on course to take a full part in the fight against this evil trade. I beg to move.

Lord Macaulay of Bragar

We on this side of the Chamber welcome this reform to law in connection with drug trafficking. We agree with the noble and learned Lord that it is an evil trade and that we must do what we can to stamp it out all over the world.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 287: After Clause 42, insert the following new clause: ("Amendments to s.8, Administration of Justice Act 1982. Section 8 of the Administration of Justice Act 1982 shall be amended as follows:—

  1. (a) in subsection (1) for the words "have been rendered" there shall be substituted "have been or will be rendered";
  2. (b) in subsection (1) for the word "repayment" there shall be substituted "payment"; and
  3. (c) in subsection (1) after the word "incurred" there shall be inserted "or to be incurred".").

The noble and learned Lord said: The amendment is designed to correct a minor defect in the Administration of Justice Act. This provides for compensation to be awarded where services have been rendered to an injured party by a relative. The difficulty is that, unlike in England, damages can only be awarded where services have been rendered and therefore do not cover the future. Often in the most tragic cases it is the future that has to be considered as the more heavy responsibility.

I am aware that the noble and learned Lord's learned friend the Solicitor-General for Scotland discussed the amendment with the Law Commission but I am not aware of the result. Therefore, I merely move the amendment in the hope that the noble and learned Lord will be prepared at least to take it away and think about it. I beg to move.

Lord Fraser of Carmyllie

As the noble and learned Lord said, the Scottish Law Commission, on whose recommendations Section 8 of the Administration of Justice Act 1982 is based, is currently considering this question in the light of the recent case of Forsyth's Curator Bonis v. Govan Shipbuilders 1989. My right honourable friend the Secretary of State for Scotland has asked the commission to provide advice on this important matter and it has undertaken to give it priority. The matter has already been discussed with the Solicitor-General for Scotland, as the noble and learned Lord said.

My right honourable friend the Secretary of State for Scotland will give urgent consideration to the Law Commission's recommendations and, if appropriate, will consider bringing forward a government amendment at a later stage of the Bill. From what I understand, the commission is likely to take a slightly different approach to that advanced by the noble and learned Lord, but the end purpose is precisely the same. Given that assurance, I hope the noble and learned Lord will feel able to withdraw his amendment.

Lord Morton of Shuna

I am pleased to hear what the noble and learned Lord said. I therefore ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Restriction of periods of non-cohabitation required in relation to actions of divorce]:

Lord Morton of Shuna moved Amendment No. 288: Page 47, line 9, leave out paragraph (b).

The noble and learned Lord said: In moving this amendment I speak also to Amendment No. 289. At Second Reading I raised the question of whether the reduction in the period of non-cohabitation meant that divorce would become too rapid a process. The effect of the Bill would be that, with consent, divorce would be granted after a separation of one year, changing from two years. Where there was no consent the period of five years would be reduced to two years.

Separation leading to divorce is a traumatic experience for the parties concerned. I suggest that sufficient time should be allowed for the parties to be sure that they are doing what they really believe is correct. If there are children of the marriage it is important that proper arrangements are arrived at which are suitable and accepted by the parties in the best interests of the children.

Often the conciliation services are able to help; but it all takes time. In moving this amendment I suggest that the periods of time in the Bill are too short. I propose through Amendment No. 288 that we retain the period of two years and through Amendment No. 289 that we change the five years to three years instead of the two years specified in the Bill. I beg to move.

Lord Campbell of Alloway

I support this amendment, to which my name is attached. I originally tabled it as a probing amendment. Since then the Lords' and Commons' All-Party Family and Child Protection Group has expressed considerable concern. Clause 43 as it stands might well adversely affect the public concept of marriage and devalue the institution of marriage to an unacceptable degree.

It is in that spirit that I hope my noble and learned friend may be able to take this amendment on board and reconsider it in the light of the reasons given by my noble and learned friend Lord Morton of Shuna and the concern expressed by the all-party group.

Lord Macaulay of Bragar

We on this side of the Committee also support this amendment. It is necessary that people should have time to think matters through properly rather than rush into the ultimate stages of divorce. I do not wish to sound pompous, but it is one of the sad facts of life today that I have received no representation from any church organisation as regards the changes being made in the divorce law. Perhaps that is a sign of the times. It may be that the institution of marriage is becoming out of date and the cheapest thing may be to destroy it. I say that in a rather flippant way.

However, it is rather sad that, as I have said, neither I nor my noble friend Lord Carmichael has had any representations from any church organisation on this matter.

Lord Hailsham of Saint Marylebone

I hope that the Committee will forgive me for intervening in this Scottish domestic dispute. Ever since the Act of Union there have been many reasons why the Scots have desired to have their own separate system of law. That system has served them very well to the present day. I venture to suggest both to my noble and learned friend on the Front Bench and to Members of the Committee who have spoken in this debate that the institution of marriage should be common to both parts of Great Britain. It is not really conducive to respect for the institution of marriage to have different periods of time affecting the continuance of marriage and divorce. Perhaps the way forward is to try to keep the two periods in step with one another.

Lord Mackie of Benshie

I hope that in his reply the Minister will be able to give some reasons and, for example, give the number of marriages which can be saved by conciliation after a year. If there is no conciliation after a year it is unlikely that further efforts will be successful. After all, the break-up of a marriage is itself a terrific decision. If there is no conciliation within a year I should like to see figures showing the success rate before agreeing with the amendment.

The Earl of Perth

I agree with those who advocate a longer period. I am ashamed to say that I am not aware of the rule in England. I hope and suspect that it is two years. In any event, one year is an awfully short time. I very much hope that this matter is not a question for dispute. I hope that the Government will bear in mind how all sides of the Committee have advocated leaving the period at two years and changing from five years to three years.

Baroness Phillips

In supporting the amendment I say to the noble and learned Lord, speaking as an Englishwoman, that we all know that the Scots have frequently led in the field of law as they have in education. Surely the sensible course would be for us to accept the amendment and then to change the English law.

Lord Campbell of Alloway

I wish to put the record straight about religious associations. I think the Committee knows that I am a Protestant. I have received a letter from the Catholic Press and Media Office as regards Amendment No. 289. It reads: I write to assure you of our support for the Amendment". I understand that the Catholic press service was established by the bishops of Scotland.

The Earl of Balfour

I cannot support Amendment No. 288 because that is where both parties have agreed 1o a divorce. As regards Amendment No. 289, there is one factor that should be taken into consideration. Unfortunately, from time to time men and women have a change of life. A man or a woman can be very unstable for a period of up to three years. That difficulty can be helped by gynaecological medicine. As regards Amendment No. 289, a marriage may be saved if the period is set at three years as opposed to two years.

The Earl of Selkirk

I support what the noble and learned Lord, Lord Morton of Shuna, has said. I was responsible for bringing in the 1975 Act which introduced the principle of the breakdown of marriage. I am sure that that principle is right and that we all accept it today. The Scottish Law Commission has gone a little too far. I have great respect for that body. I recall that when the late Lord Gardiner introduced this system I was very critical of it. I did not know the form that it would take. I now regard it with the greatest respect.

In the course of the arguments a little too much attention was paid to people who had already been through the divorce procedure. If one gets caught up in divorce there is much to be said for making the procedure simple, straightforward and short. However, let us be quite frank: two-thirds of the people of Scotland have never had anything to do with divorce. To my mind they are more important than those who have been involved in divorce.

The longer period which has been mentioned is particularly important. Whatever the future may be for this matter, we will not again lengthen the period of waiting. We should go slowly on this issue. I say to my noble and learned friend Lord Hailsham that there is a big difference between two years and three years. There are occasions when both husband and wife agree that the marriage has broken down and they have come to that conclusion within two years. However, there are very often reasons why one party does not agree. In those circumstances there must be a reasonable time. Three years is not an excessive period in that respect. There may be all kinds of reasons for wanting extra time. There may be financial problems and the question of the house and the children which may make one party anxious for divorce and the other not so willing to take that step. I support this amendment. It goes as far as it is wise to go at the present time.

3.15 p.m.

Lord Fraser of Carmyllie

Amendment No. 288 tabled by the noble and learned Lords, Lord Morton and Lord McCluskey, seeks to retain two years as the period of separation for divorce with the consent of both parties instead of the reduced period of one year proposed in the Bill. In making these proposals to alter the periods the Scottish Law Commission, on whose recommendation these proposals are based, stated the situation shortly and simply. It said that the periods chosen are arbitrary within a certain range.

I immediately accept that there is no absolutely correct figure to be settled. As regards Amendment No. 288, it is worthy of note that when the Law Society of Scotland considered this matter and offered its view to the Scottish Law Commission it indicated that where there was consent the period, far from being restricted to one year, should be six months. I mention that not because I agree with it but because it gives some indication of the range of opinion that has been expressed in relation to this matter.

Amendment No. 289 proposes extending the period of divorce without consent from two years, as the clause proposes at present, to three years. Members of the Committee will have observed that if Amendment No. 288 is agreed to and Amendment No. 289 is not, the two separation periods will be the same irrespective of whether there has been consent. Interestingly, the Scottish Law Commission considered but rejected that possibility in its report. However, that does not appear to be the result that the noble and learned Lords' amendment seeks to achieve.

While I accept what my noble and learned friend Lord Hailsham had to say about matters of consistorial law, one would not want Scotland to march significantly out of step with England and Wales. We have diverged in the past and periods have been different. As I understand matters, the approach that the Law Commission on this side of the Border may be taking as it looks again at divorce may be very different from what is being proposed here. Although there is some desirability in keeping things the same, it would be a wrong approach simply to suggest that, if England and Wales wish to go in a wholly different direction on divorce, Scotland should be stuck with what is essentially the position in England and Wales at the present time.

The main criticism of the existing law is that the present periods of separation are unnecessarily long and have the effect of causing many people to rely on proving unreasonable behaviour for the sole purpose of obtaining an earlier divorce. This can frequently involve making allegations of an unpleasant and exaggerated nature against the other party, which in turn makes negotiations more bitter, prolonged and expensive and settlements harder to reach. I spent some time in private practice dealing with these matters. Nothing is more unattractive and difficult than that there should be a divorce in which parties make extraordinary and exaggerated allegations against each other. There is a group in the middle which suffers as a consequence—the children of the marriage in question.

The Scottish Law Commission carried out consultations and research which indicated that a shortening of the separation periods would be widely supported. Its consultations included obtaining comments from some 30 organisations on the commission's earlier discussion paper and conducting a public opinion survey involving some 696 persons. The noble Earl, Lord Selkirk, is correct that probably some two-thirds of the people in Scotland have managed to avoid the unhappiness of divorce, but 64 per cent., having had no experience of divorce, supported the proposals put forward by the Scottish Law Commission as a recommendation in the Bill.

There emerged a view on consultation that separation periods of one year with consent and two years without consent would be fairer than the present two-year and five-year periods which public opinion, certainly in Scotland, regards as unduly repressive. Such reduced periods should reduce the number of acrimonious disputes generated by recourse to behavioural grounds but will be long enough to prevent the risk of precipitate divorce and the undermining of marriage as a serious lifelong commitment. No one wants to take the hardback off the marriage certificate, but once the marriage has broken down there is little purpose in unduly prolonging the period before divorce can be achieved.

While clearly a case can be argued in support of the view held by noble and learned Lords that one year's separation with consent and two years without are too short, it should be observed, on the basis of the research to which I referred, that that view does not entirely accord with views in Scotland. Three years has been suggested as a more appropriate period where there is no consent. Such a period would be at variance with the current period of desertion. In this clause the ground of desertion is removed. The practical effect of the amendments would be that the period for desertion would in a sense be extended from two years to three years.

There is no place for such a ground if divorce can in any event be obtained after a separation of two years. Accordingly, if the Committee takes the view that three years is a more appropriate period of separation for divorce without consent, it may be necessary to reconsider whether the desertion ground ought to be retained. We should otherwise be placing a significant group of people—those who seek divorce on the ground of desertion—in a worse position than they are now.

It may interest the Committee to know that the Scottish Marriage Guidance Council wrote to the Scottish Home and Health Department to express its support the commission's proposals. As well as describing the proposals as "eminently sensible", the council stated: We can appreciate that others may be concerned about the reduction of time in relation to encouraging couples to take marriage less seriously but can honestly claim that we, in our work, have not experienced this attitude". No absolute figure can be argued for, but given the careful work undertaken by the Scottish Law Commission, the wide range of views canvassed in Scotland and the desirability of avoiding any unnecessary resort to the ground of unreasonable behaviour, I believe that the provisions of the Bill as they stand at present should be maintained and both of the amendments should be rejected.

The Earl of Perth

Is there not room for compromise? One year is a short period. It is a question of easy come, easy go. Can we not say one-and-a-half years? There is no magic in one year to two years. As the noble Earl, Lord Selkirk, said, once the period is shortened one can never go back. This is a serious matter. For most of us marriage is something of a sacrament. Even those to whom it is not enter it, I hope, with great seriousness. I hope that the period will be a little longer.

Lord Fraser of Carmyllie

One year is proposed where there is an agreement by both parties that the marriage is effectively at an end. Once parties have resolved that their marriage is over—each marriage seems to have its own breaking point—there is little purpose in protracting the period until the parties can secure a divorce. What particularly concerns me is that if the period is protracted, the children, who are often at the centre of difficulties, will experience even greater problems than they otherwise would.

Lord Morton of Shuna

I am grateful to all noble and learned and noble Lords who have spoken. What the noble and learned Lord, Lord Hailsham, said about keeping the two countries in step is of great importance. I should like to emphasise that the fact of separation and the recognition of an irretrievable breakdown in a marriage are two entirely different matters which happen at different times. Therefore, we are perhaps going too fast in accepting the Law Commission's view.

I was interested that a member of Her Majesty's Government should rely on public opinion surveys in Scotland. Perhaps some of those in Scotland might wish that the Government paid more attention to them on other matters. But 696 people is not necessarily a full survey of Scottish views. I shall ask leave to withdraw the amendment at this stage but I may come back to it later.

Amendment, by leave, withdrawn.

[Amendment No. 289 not moved.]

Clause 43 agreed to.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 290: After Clause 43, insert the following new clause: ("Continued exercise of occupancy rights after dealing In section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (continued exercise of occupancy rights after dealing)—

  1. (a) in subsection (3)(e) the words "at or before the time of the dealing" shall be omitted:
  2. (b) subsection (3)(e)(i) shall be amended to read "an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not or were not at the time of the dealing a matrimonial home in relation to which a spouse of the seller has or had occupancy rights; or").

The noble and learned Lord said: This amendment is grouped with Amendments Nos. 302UA and 302ZA. The amendment in my name has been noticed by the noble and learned Lord the Lord Advocate who has tabled his own amendment which covers the point suitably. Therefore I shall not move Amendment No. 290 but merely express my thanks to the noble and learned Lord for what he has done.

[Amendment No. 290 not moved.]

Lord Morton of Shuna moved Amendment No. 290A: After Clause 43, insert the following new clause: ("Confidentiality of conciliation proceedings. In section 2 of the Divorce (Scotland) Act 1976 (encouragement of reconciliation) there shall be added— (5) Where the parties in an action for divorce engage in any conciliation procedure designated by act of sederunt, anything communicated to a conciliator in connection with such procedures shall be privileged information and not admissible as evidence in any proceedings under this Act except with the consent of both parties and the consent of the conciliator." ").

The noble and learned Lord said: I hope that this amendment will be acceptable. It relates to the confidentiality of people engaged in conciliation proceedings. The conciliation service exists to encourage parties who have decided to divorce to reach reasonable and proper decisions about custody of and access to children and about financial provision. It is important that the people engaged in the conciliation exercise should be free from any risk that they will be cited to attend court and give evidence about what was said during the conciliation process.

The amendment is in line with a practice direction of the Family Division which was issued as far back as November 1982. I hope that it meets with the approval of the noble and learned Lord, Lord Hailsham, as it brings Scotland in line with England. In my view it would be a useful measure. I beg to move.

3.30 p.m.

Lord Fraser of Carmyllie

I should immediately say that I have some sympathy with the principle of this amendment. It is clearly desirable that parties should enter the conciliation process with no inhibitions that what they might say could subsequently be used against them if the conciliation failed and they had to resume their litigation. There are, however, issues which I believe require further and serious consideration. In particular, it would be necessary to achieve a balance between the desirability of making available to the court all relevant evidence in a case and the understandable concern about confidentiality in relation to the conciliation proceedings. Clearly we would not wish to provide blanket confidentiality which might preclude the parties or the conciliator giving evidence on, for example, child abuse. We should also wish to avoid creating any incentive to repeat something to a conciliator so as to attract confidentiality.

In addition, the noble and learned Lord's amendment would appear to restrict confidentiality to those cases which have been referred by the court within actions of divorce. As conciliation is believed to be most effective where couples resort to the service prior to any court action, it would seem desirable to ensure that the rule of confidentiality can also be applied in such circumstances and, moreover, in relation to actions relating solely to custody of or access to children. To restrict confidentiality to actions for divorce might create a bias towards awaiting court proceedings before resorting to conciliation. Such a delay would be undesirable.

I should also point out that Section 2 of the Divorce (Scotland) Act 1976, which the noble and learned Lord's amendment seeks to amend, deals with "reconciliation" rather than conciliation. I believe that these points have to be addressed before we seek to alter the law in the manner which the noble and learned Lord has suggested. I understand that the Law Commissions for both Scotland and England have been giving some thought to these issues which are not easily resolved. I would like to thank the noble and learned Lord for raising this important matter, but I would ask him to withdraw his amendment with the assurance that the Government clearly recognise that there may be a problem in this area and that we are as anxious as he is to find a good and practical solution. However, I believe that further work on this issue is required.

Lord Morton of Shuna

I am most grateful to the noble and learned Lord for his helpful comments, even if he was not prepared to accept the amendment. In the light of those comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 [Matrimonial interdicts]:

Lord Morton of Shuna moved Amendment No. 291: Page 47, line 19, after ("arrest" ") insert ("for the words "upon the termination of the marriage" there shall be substituted the words "five years from the date when it was granted";").

The noble and learned Lord said: This amendment deals with the unfortunate situation which arises all too often of violence in the marriage and the requirement for a "power of arrest" and in interdict. The difficulty which will arise if the period of unagreed divorce is reduced from five years to three, or even to two years, is that one reduces the protection available to the wife—usually—who is subject to the violence. At present the court can give an interdict which lasts until the divorce takes effect and attached to that is a power of arrest. For that reason many battered wives choose to take the five-year period in order to have the protection of the court for that period of time after the separation.

If we are to reduce the period to two years, it naturally follows that the period of protection available to the battered wife is also reduced. It is for that reason that Amendment No. 291, which is in very much the same terms as Amendment No. 291A with which it is grouped, suggests a change in the wording so that the interdict and the right of arrest will last for five years from the date it was granted rather than until the decree of divorce. That has a subsidiary but very helpful effect in that it gives the police knowledge of when the right of arrest still subsists.

At present the police have considerable difficulty—which the Law Commission has recognised—in that no one tells them when the divorce is pronounced. Therefore, they do not know whether the interdict with a right of arrest is still in force. However, if you have an interdict with a five-year maximum period attached to it, the police will automatically know when that period expires. Such an interdict could always be recalled by the court at any time. I beg to move.

Lord Carmichael of Kelvingrove

My name is associated with Amendment No. 291A, which, as the noble and learned Lord, Lord Morton of Shuna, said, is very closely related to his amendment. The information I have on the subject is in a way quite plaintive. It comes mainly from Scottish Women's Aid, which is extremely concerned about the matter. It does not disagree with the reduction in the time for a divorce being implemented but it is concerned about the protection of women if the time limit were to be reduced. From its very great experience in such matters, the organisation knows that many men who have abused their partners during the course of their relationship will continue to harrass, assault and intimidate them after separation and even after divorce has taken place. It believes that it is essential for the protection of these women that this amendment should be accepted so as to give the women the necessary protection. I also support the remarks made by the noble and learned Lord, Lord Morton of Shuna.

Lord Fraser of Carmyllie

This is a matter which the Scottish Law Commission addressed following representations made to it by Scottish Women's Aid when it was considering the reform of grounds for divorce. However, the commission took the view that this important question was not directly linked with the divorce reform which it recommended and which is given effect to by Clause 43. It further suggested that consideration of this question should not delay implementation of that reform.

As the commission noted in its report, a question of principle arises: is it justifiable to attach a power of arrest to an interdict relating to the conduct of former spouses but not to interdicts relating to conduct between other people? The commission's view was that in the absence of consultation it would be inappropriate to make any such recommendation in its report. It pointed out that a divorced spouse has the same protection against assault or breach of the peace as does any other citizen.

I believe that there should be consultation in this important matter and I note that the Scottish Law Commission, in one of its latest discussion papers (No. 83) on Family Law Pre-consolidation Reform which was issued on 29th March of this year, has sought comments on the desirability of proceeding as the noble and learned Lord's amendment suggests. The commission also addressed the related question of whether the definition of "matrimonial interdict" should be wide enough to cover an interdict against molestation of a former spouse.

In my view it would be preferable to undertake such consultation before proceeding to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981 in the manner that the amendment would require. However, given the consultation which is taking place—and it is not just a vague idea; it has reached the stage of the Scottish Law Commission putting forward this proposal in a discussion paper—I invite the noble and learned Lord to withdraw the amendment.

Lord Morton of Shuna

I am grateful to the noble and learned Lord for what he has said. It seems to me that the Law Commission's views, as reported by him, are a typical lawyer's academic response to the problem. I should have thought that if one is or has been a battered wife, one is far more likely to be attacked by someone one has been married to than by an absolute stranger. There is therefore something to be said for keeping a power of arrest. But in view of what has been said and the necessity for consultation—I agree that one should not bring in radical reforms to the law without proper consultation, a matter that we may come to in a future amendment—I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291A not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 291B: Page 47, line 29, at end insert: ("( ) In section 18(3) after the words "section 15" leave out the words "except the words in subsection (2) from "and such powers of arrest" to the end.").

The noble Lord said: It might be for the convenience of the Committee if I speak also to Amendments Nos. 295 and 297A. They relate to the He using (Scotland) Act 1987. The amendment inserts in the Act that it should not be competent for a (lousing authority to hold a person to be intentionally homeless solely on the grounds that he or she does not intend to exercise his or her rights under the Matrimonial Homes (Scotland) Act 1981.

The purpose of the amendments is to ensure that local authorities do not classify as intentionally homeless women suffering abuse who choose not to exercise their rights under the Act. The amendments aim to close what has now become a loophole in the existing homelessness legislation with regard to the rehousing of abused women. The introduction of the Matrimonial Homes (Scotland) Act aimed, among other things, to give women suffering from marital violence additional protection through, for example, exclusion orders if they wished to remain in the matrimonial home. It was never intended to be used as an alternative to rehousing under the homelessness legislation, if the latter was what the women chose, having taken into account all relevant factors, including the safety of herself and her children. That point was made clear during the passage of the Matrimonial Homes (Scotland) Bill and in subsequent guidance. I beg to move.

The Earl of Balfour

I am somewhat worried about the amendment because if my memory serves me rightly—it is some years since I served on a local council—in the case of council houses where a husband who is the householder under the council tenancy rules has behaved badly, the local authority has a power to evict him and put the family back into the home if he has thrown them out. The wording of this group of amendments gives me the impression that they could affect a private landlord. However sympathetically I as a private landlord might feel towards the battered wife, if the husband were the tenant I might be treading on dangerous legal ground if I attempted to help the wife, however badly the husband had behaved. That is the point that worries me about these amendments.

Lord Fraser of Carmyllie

The amendments relate essentially to the occupancy rights of cohabiting couples. I continue my refrain that the Scottish Law Commission is involved in this matter and intends to publish a discussion paper this month on the effects of cohabitation in private law as a precursor to the commission's proposed codification of Scottish family law. I understand that that particular point will be covered in the paper. I wish therefore to await the outcome of the commission's consultations and to resist undertaking any piecemeal amendment of the existing matrimonial homes legislation except where it is necessary to amend the Act for purposes of clarification.

With that brief explanation I hope that the noble Lord will appreciate that the matter is not one that has been neglected but compares with other matters that have already been discussed and is something that the Scottish Law Commission should consider after consultation.

Lord Carmichael of Kelvingrove

I am grateful to the Minister for his statement. He has given an assurance that the matter is being dealt with, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 291C: Page 47, line 29, at end insert: ("() In section 17 of the Act of 1981, in subsection (5)(b)(iii) leave out "substantial risk of violence" and insert "substantial risk of breach of interdict" ").

The noble Lord said: The amendment again seeks to amend the Housing (Scotland) Act. It deals with homelessness. It is similar to the previous amendment that I moved. I ask the Committee's indulgence because I probably went ahead of myself with my arguments. The amendment is intended to close a loophole in the Matrimonial Homes (Scotland) Act and relates to the homelessness of a woman who feels that she has to leave the home because of the difficulties there. She should be able to claim that she is genuinely homeless. The Minister to some extent dealt with that point in his earlier reply. Perhaps he could tell me whether his earlier reply extends also to this amendment. I beg to move.

Lord Fraser of Carmyllie

The amendment seeks to tackle a problem encountered by some sheriffs in applying the provisions of Section 17(5)(b)(iii) which enable the sheriff to order the detention of a non-applicant spouse where the sheriff is satisfied that there is a substantial risk of violence by him against the applicant spouse or any child. The amendment would substitute the words, substantial risk of breach of interdict", for, substantial risk of violence". Arguably, that risk may be more easily assessed and certainly the immediate consequences of getting it wrong are less harmful.

There is a view that more radical revision of the Section 17 procedures may be required to render them more effective. In its discussion paper, Family Law: Pre-consolidation Reforms, which was published on 29th March this year the Scottish Law Commission explores the difficulties in operating that section and seeks views on a proposal to replace the Section 17 procedures with a new, simpler provision. In this instance it would seem preferable to deal with Section 17 in the context of the commission's proposals without embarking on the noble Lord's complicated proposals.

Lord Carmichael of Kelvingrove

I am again grateful to the noble and learned Lord the Lord Advocate, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Belstead

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.