Lords Sitting of 31 January 1991

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Newcastle): The LORD CHANCELLOR on the Woolsack.
Lord Rathcreedan—Sat first in Parliament after the death of his father.

Gulf War: Costs
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
How much financial support Germany, the Netherlands and Belgium have each given towards the cost of stationing United Kingdom armed forces in the Gulf.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, your Lordships will be aware that yesterday Germany made a contribution of some £275 million towards United Kingdom costs. Germany has also provided artillery ammunition as well as a substantial support package, including specialist vehicles, air transport and other spares. Belgium is providing air transport, medical support and logistic assistance. The Netherlands has provided artillery ammunition and is providing medical support. We are very grateful for the practical assistance our allies have provided for British deployments in the Gulf.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many of us wish warmly to congratulate the Foreign Secretary on the successful outcome of his visit to Germany in securing a payment that had previously apparently not even been offered? The House will be indebted to him for his successful effort. However, does my noble friend's Reply mean that in financial terms neither Belgium nor Holland has contributed a penny?
The Earl of Arran: My Lords, that is quite correct at the moment. However, as regards material and military support both Belgium and Holland support us with medical units.
Lord Mulley: My Lords, I agree with the noble Lord, Lord Boyd-Carpenter, in congratulating the Foreign Secretary. I also agree that some of our other NATO allies could have been a little more forthcoming in their support. More seriously, I was extremely concerned at the report that Germany was withholding crucial Tornado spares which our forces may need. That raises a further question as to whether it is wise to become involved in European co-operative ventures where the production is shared among the partners if de facto it gives each of the partners a means of veto over the use of aircraft in each country. Can the noble Earl give us an assurance that Germany will not seek to hold back Tornado parts that our forces may need?
The Earl of Arran: My Lords, I cannot give any assurance in that direction because it is up to the German nation. Other initiatives have been launched by Ministers, who will visit many countries for additional assistance in the light of the increased cost of the operations.
Lord Cledwyn of Penrhos: My Lords, we also welcome the assistance which we are to receive from Germany. Will the noble Earl confirm that the build-up cost of arms to the United Kingdom before the war broke out was £1 billion and the cost of the war is currently £3 million a day? Against that background, is not the United Kingdom receiving proportionately less than the United States from other countries that made a contribution such as Saudi Arabia? Given that Saudi Arabia gave 36 billion dollars to the United States, is there any chance that the United Kingdom, which is making an outstanding contribution, should receive at least a little more?
The Earl of Arran: My Lords, to answer the noble Lord the Leader of the Opposition, first, the figure for the build-up cost so far is £1.25 billion; secondly, the full operating cost of forces in the Gulf has risen to somewhat more than £4 million per day.
As regards further financial contributions from Japan, this country has received a significant amount from the 2 billion dollar fund set up to assist nations' contributions to the Gulf effort. It has recently announced a further 9 billion dollars in addition to the fund from which we hope to benefit.
Lord Rippon of Hexham: My Lords, can my noble friend confirm or deny reports that the Belgians refused to supply British forces with ammunition?
The Earl of Arran: My Lords, that was initially correct but we hope that that episode is at an end. There are government initiatives and much negotiation is going on with other countries across the world for further money and military aid.
Lord Mellish: My Lords, with great respect to what the Minister said, the contribution from Belgium is absolutely farcical. That country owes much to us and people like us and it is nonsense to talk about European unity when the contribution of a country like Belgium is negligible. Is the Minister satisfied with what it is doing?
The Earl of Arran: My Lords, Belgium may have had initial problems in providing anything concrete from the point of view of military aid or financial assistance in the first instance. But it is on its way. It is providing medical support, air transport and logistic support.
The Earl of Onslow: My Lords, are the Belgians providing the ammunition? Are the Germans allowing the forces Tornado spare parts? May we have a straight answer to those two questions?
The Earl of Arran: My Lords, to the best of my knowledge Belgium is not providing ammunition. I shall have to write to my noble friend concerning the prohibition on the supply of German Tornado spare parts.
Lord Jenkins of Putney: My Lords, is this not among the many problems which the Government appear to have failed to take into consideration when they decided to become the chief ally of the United States in this enterprise? Are we to discover other matters which they may appear to have forgotten?
The Earl of Arran: My Lords, as I have already indicated, strong negotiations are under way under ministerial initiatives with many countries throughout the world for further money and further military assistance.
Lord Molloy: My Lords, have the Government made approaches or will they consider doing so to our colleagues in the EC to ascertain whether they are able to help so that wounded British servicemen may, if necessary, be accommodated or looked after in EC hospitals in Europe?
The Earl of Arran: My Lords, that is another question for another day.
Lord Grimond: My Lords, the Government have mentioned negotiations taking place around the world. Does that include Japan?
The Earl of Arran: My Lords, I believe I have indicated that Japan has been generous and has made some 2 billion dollars available. Japan has also made a further sum of 9 billion dollars available from which we hope to receive our reward.
Lord Campbell of Alloway: My Lords, will my noble friend confirm that his narrative unfortunately must put paid to these ideas of a common European defence policy?
The Earl of Arran: My Lords, I cannot agree with that. As I have said, there is much to negotiate and I hope that much will happen in the near future.
Baroness Ewart-Biggs: My Lords, what decisions were taken at the outset of hostilities regarding the contribution that each country should make towards the costs of the war?
The Earl of Arran: My Lords, discussions on contributions towards the costs of the conflict have been taking place for some time. As my right honourable friend the Chancellor of the Exchequer has said, our forces will not be cash limited. They must have whatever is necessary.
Lord Stoddart of Swindon: My Lords, will the Minister reconsider the reply he gave to his noble friend Lord Campbell of Alloway? Would it not be foolish for this country to allow Europe to make decisions on our foreign policy, our defence policy and perhaps on the control of our armed forces, bearing in mind our recent experiences? Does this episode not show that the fanatical Euro-federalists are wrong?
The Earl of Arran: My Lords, the Question we are discussing relates to contributions towards costs.
Lord Jenkins of Hillhead: My Lords, will the Minister bear in mind the fact that while this country, in my view, clearly has an outstanding record on valour and willingness to act in relation to the Gulf, it might nonetheless be wiser to let our light stand out on its own and not go round lecturing anyone and making as many enemies as we can?
The Earl of Arran: My Lords, we are not lecturing anyone, nor to the best of my knowledge are we making enemies.

Local Government: European Charter
3.12 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham asked Her Majesty's Government:
When they will sign the European Charter of Local Self-Government.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, the Government have no plans to sign the charter.
Baroness Hollis of Heigham: My Lords, given that the 23 member countries of the Council of Europe, with the exceptions only of Britain, Switzerland, Malta, Ireland and San Marino, have signed the European Charter of Local Self-Government, will the Minister tell the House what articles of the charter Her Majesty's Government find unacceptable?
Baroness Blatch: My Lords, to give just one example, the Government object to the powers of general competence contained in the charter. That provision means that local authorities would be empowered to do absolutely anything they wished outside the provisions proscribed by Parliament.
Lord Dean of Beswick: My Lords, is the Minister not aware that during the term of the former Prime Minister from 1979 until her resignation, the Conservative Government in this country had a reputation for showing pathological hatred towards local government? This reputation was gained when the Government removed powers and responsibilities from local government. Is the Minister further aware that unless the Government sign the charter, they will stand condemned for the same attitude?
Baroness Blatch: My Lords, I do not agree with that premise. This Government have a fine record of supporting local government which is not at threat.
Lord Hailsham of Saint Marylebone: My Lords, I do not wish to show pathological hatred to anyone or anything. However, is it not a fact that there are local authorities and local authorities, and it is far better that all should be governed by the rule of law?
Baroness Blatch: My Lords, I agree with my noble and learned friend.
Lord Jenkins of Putney: My Lords, does not the noble Baroness agree that while it is proper that local authorities should be governed by the rule of law, they should not be governed by central government? Is it not the policy of the Government to govern local authorities?
Baroness Blatch: My Lords, it is for Parliament to pass the laws of the country and it is for local authorities to operate within a framework determined by Parliament.
Lord Rippon of Hexham: My Lords, does my noble friend agree that there are no signatories of the charter

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which do not abide by the rule of law regarding local government? Without expressing any comment about the Government's record on local self-government, I hope I may suggest that it would do the Government a lot of good in this country and overseas if we were to sign the charter.
Baroness Blatch: My Lords, I do not entirely agree with my noble friend. Sweden signed and ratified the charter but that did not prevent it from prohibiting its local authorities from raising taxes for two years.
Lord McIntosh of Haringey: My Lords, is it not the case that the present position of the Prime Minister is that the review of local authority expenditure and government should be a fundamental review and that nothing should be excluded from it? Under those circumstances would it not be appropriate for the matter of adhesion to the European charter to be referred to the review for consideration?
Baroness Blatch: My Lords, although we have neither signed nor ratified the charter, I am not aware of any breach on the part of the United Kingdom of any of the terms of the charter. As regards the review, nothing is ruled in and nothing is ruled out.
Lord Stoddart of Swindon: My Lords, is it not a fact that the Government believe in the proper accountability of local councillors to their electorate? Is not the best way of achieving that to give local authorities powers of general competence so that the electorate know exactly who is making the decisions locally and can therefore hire or fire them?
Baroness Blatch: My Lords, in reality I know of no country which would allow local authorities to range far and wide beyond what is appropriate in terms of local decision-making.
Lord Tordoff: My Lords, is it clear to the Minister from the previous supplementary question whether the noble Lord, Lord Stoddart of Swindon, is for or against the European charter?
Baroness Blatch: My Lords, that is a question for the noble Lord, Lord Stoddart, to answer.
Lord Beloff: My Lords, does my noble friend the Minister agree that if one were looking for an example of a country with exemplary local government, one would look to Switzerland, which apparently has not found it necessary to sign the charter?
Baroness Blatch: My Lords, my noble friend is absolutely right. The constitution of Switzerland precludes it from signing the charter.
Baroness Hollis of Heigham: My Lords, is the Minister aware that British delegations to Hungary, Poland and Bulgaria have urged those fledgling democracies to adopt the charter, but at the same time those urging that course of action have themselves stood aloof?
Baroness Blatch: My Lords, I am aware that this Government have spent a great deal of time and energy persuading those governments to provide democratic local government. I am also aware that
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many delegations from those countries come to the United Kingdom to witness examples of good democratic local government.

Marina Berths: Control
3.17 p.m.
Lord Greenway Lord Greenway asked Her Majesty's Government:
Whether they will refer to the Monopolies and Mergers Commission the ownership and control of marina berths on the south coast of England.
The Minister of State, Department of Trade and Industry (Lord Hesketh): My Lords, the Office of Fair Trading has received a number of representations on this issue. The matter is currently being considered and the Director General of Fair Trading will in due course advise my right honourable friend the Secretary of State for Trade and Industry whether there is any case for a monopoly reference of marina services.
Lord Greenway: My Lords, I am grateful to the Minister for that reply which will give some comfort to the many yachtsmen who are disturbed about the current situation. However, is it not a fact that the Fair Trading Act 1973 specifically excluded investigation into port activities? Are the Government not aware that today marinas are far more prevalent than they were then? Are they further aware—this is a more important consideration—that one single company now controls nearly 50 per cent. of marina berths in the Solent area and, I believe, up to 100 per cent. of berths in the Torbay area?
Lord Hesketh: My Lords, under the terms of the Fair Trading Act 1973 monopoly situations in relation to the supply of goods or services may be referred to the Monopolies and Mergers Commission. The director general will consider in his advice on this matter whether the provision of marina berths constitutes a supply of goods and services.
Lord Harvington: My Lords, does my noble friend realise that there is tremendous anxiety among the ever growing body of people who use these ports that the Monopolies and Mergers Commission should take this matter seriously? The situation which obtains at present cannot be allowed to continue.
Lord Hesketh: My Lords, I should point out to my noble friend that the matter is being considered at the moment by the Office of Fair Trading. There has been no recommendation to my right honourable friend the Secretary of State to refer the matter to the Monopolies and Mergers Commission. One of the reasons for the investigation is to discover the facts with regard to some of the details that my noble friend has referred to.
Baroness Platt of Writtle: My Lords, is my noble friend aware of the different charges that apply in the UK and on the Continent respectively? Nightly charges for berths here can be almost double those in France and Holland and annual charges in the UK may be more than double those levied on the Continent. If this matter is not referred to the Monopolies and Mergers Commission, people on

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modest incomes will find small boat sailing beyond their means. Does my noble friend agree that that is a very undesirable prospect for a maritime nation?
Lord Hesketh: My Lords, the Government are certainly aware that different prices are charged in different places on the south coast and, as my noble friend pointed out, that there is a difference between the prices charged in northern France and on the south coast. It is possible that there is greater availability of marina berths on the Continent than on the south coast of England and that that is one reason for the higher prices.
Lord Williams of Elvel: My Lords, is there another way of tackling this problem, which noble Lords recognise? Is there not a case for saying that because charges are high on the south coast and there is a concentration of ownership of marina berths there could be an unregistered restrictive practice? Is it not also the case that the Director General of Fair Trading has the right to refer such a practice to the competition court?
Lord Hesketh: My Lords, the noble Lord, Lord Williams, may be correct, However, I am sure that he will not expect me to anticipate the deliberations of the director general.
Lord Mowbray and Stourton: My Lords, will my noble friend draw the Government's attention to the fact that the Lymington harbour commissioners, a small non-profit making body, are being threatened by the Crown Estate Commissioners with an increase of 6,500 per cent.? Is that legal under the 1961 Crown Estate Act under which the commissioners are not allowed to ask more than the going rate when they are in a monopoly position?
Lord Hesketh: My Lords, I am, as always, grateful to my noble friend for his contribution. However, on this occasion I suggest that that is another question. If he were to put down such a Question I should be more than happy to answer it.
Lord Williams of Elvel: My Lords, is not the Minister underestimating the powers and authority of a Minister of the Crown, which, I believe, is what he is until further notice? Is he not perfectly entitled to draw the attention of the director general to the possibility of there being in this instance an unregistered restrictive practice?
Lord Hesketh: My Lords, as I said earlier to the noble Lord, Lord Williams, he may well be correct and that is a matter which is being considered by the director general. He would not expect me to predict the director general's decision.
Lord Lucas of Chilworth: My Lords, does my noble friend agree that the Fair Trading Act might be amended to protect the leisure industry in port facilities, so opening such activity to greater competition? Does he agree also that that would be in the spirit of what this Government want to do?
Lord Hesketh: My Lords, Schedule 7 of the Fair Trading Act lists services, including port facilities,
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which are outside the powers of the Director General of Fair Trading to refer to the MMC. However, my right honourable friend the Secretary of State could make a reference if necessary. That is why in this particular case the director general will report to my right honourable friend the Secretary of State.

NHS: Hospital Waiting Lists
3.23 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
What extra financial help is available for health authorities to provide more beds to curb rising waiting lists.
Lord Cavendish of Furness: My Lords, it is the time patients wait which is important, and that is reducing. We are continuing the special waiting list fund in 1991–92 with a further £35 million to help health authorities make continued progress in tackling long waiting times.
Lord Molloy: My Lords, I thank the noble Lord for that reply. Is he aware that illness rationing, the removal of certain diseases from the emergency list and the cutting back of the emergency bed service represent a savage departure from the principles of our National Health Service?
Lord Cavendish of Furness: My Lords, if the noble Lord is referring to exclusions, there is no question of denying treatment to people who need it. The decision whether to put a patient on a waiting list remains a clinical one. Duncan Nichol, the health service chief executive, has written to regional managers to emphasis that.
Baroness Gardner of Parkes: My Lords, is it not a fact that it has recently been announced that more money is to be given to regional health authorities to be used in any way they see fit? Is it not also important to remember that waiting lists can be cut by other means, such as the use of more day surgery? Does my noble friend agree that beds themselves are not the answer and that it is the use made of those beds which is important? Beds should be used to best advantage.
Lord Cavendish of Furness: My Lords, indeed, additional money is being made available for the waiting list fund to which I referred. Our special waiting list fund of £154 million over five years has helped health authorities to tackle the problem of long waits. Hundreds of thousands of additional patients have been treated as a result and waiting times have been reduced. It is the case that there are other ways of reducing waiting lists. The number of day patients increased by 17 per cent. to March 1990, reflecting the increased number of patients treated on that basis.
Lord Ennals: My Lords, further to the Question of my noble friend Lord Molloy, will the Minister comment specifically on the decision of the North-Eastern Regional Health Authority to deal with its historically long waiting list by restricting the cases, such as varicose veins, which can be put on the waiting lists? Since the region is merely an agent of the

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Secretary of State, was that decision approved by the Secretary of State? Is that likely to be a policy which will be adopted across the country and will the National Health Service now cut back on certain treatments which have been available until now?
Lord Cavendish of Furness: My Lords, I am not aware that that is the policy. As I said, nobody who needs treatment is being denied it. Treatment is a clinical decision.
Lord Molloy: My Lords, the noble Lord must be aware that in most regions hospitals have been closed. Is he also aware that that is causing grave anxiety, not only among ordinary people but also among the medical profession? I could arrange a meeting for the Minister with many eminent people from the medical profession who know those facts. Can he say what is the current rate—which is said to be alarming—of reduction in the number of hospital beds throughout the country?
Lord Cavendish of Furness: My Lords, the question of hospital closures does not appear directly on the Order Paper and I am not aware how many, if any, are being closed. As the noble Lord knows, there is a considerable consultation process and if there is disagreement among local bodies the matter is referred to my right honourable friend the Secretary of State. There is no simple relationship between numbers of beds, patients treated and waiting lists. I acknowledge that over the past year the number of beds available fell by 4.6 per cent., but the number of patients treated increased by 4.4 per cent. The number of patients waiting for more than a year fell by 7 per cent. The National Health Service exists to treat patients, not to hoard beds.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Arran will, with the leave of the House, repeat a Statement that is to be made in another place on the Gulf.

Divorce: Law Commission Report
3.28 p.m.
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That this House takes note of the Law Commission Report The Ground for Divorce (H.C. 636, Session 1989–90).
The noble and learned Lord said: My Lords, last November the Law Commission, in its report The Ground for Divorce, made important proposals for the reform of the law. It is a topic which calls forth strong emotions and deeply felt and differing views. The Government's purpose in initiating this debate today is to give noble Lords an opportunity to express their views and in so doing to stimulate a wider debate in the country at large.
The Government believe that it is too early for us to attempt to gauge whether reform of divorce law is desirable, much less to say whether the Law Commission's proposals would represent the best way
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forward if reform were needed. Any such decisions would be premature until we had had an opportunity to hear the widest range of public and parliamentary opinion. Accordingly, I see my part in today's debate as being essentially that of a listener.
However, before I sit down it may help the House if I say something about the wider context in which the divorce reform proposals need now to be considered; give a summary of the current law and some of the facts and figures relevant to the working of the present divorce regime; describe the risks and damage to the welfare of children which ensue from family breakdown; outline some of the Law Commission's thinking and its major recommendation; and, finally, attempt to identify and clarify the objectives of, and issues arising from, its proposals to reform divorce law.
As to the wider context, your Lordships will remember that in the course of the debates on what is now the Children Act 1989 I anounced a general review of the family justice system which would embrace that Act and its implementation and go on in stages to consider: divorce reform and conciliation; the remedies available for domestic violence and rights to occupy the family home; the law governing financial provision on family breakdown; and the arrangements for providing support to courts and families involved in family litigation.
I explained that the reform of the courts' procedure and jurisdictions in family matters would be reviewed as the decisions on changes in the substantive law were taken and we were able to identify what precisely the courts' tasks and objectives were in the areas of law concerned. To that end the Government set up a committee of officials representing the various departments whose interests are involved to co-ordinate and pursue the review. I can report to the House today that the review is well in hand. The implementation of the Children Act, its first and a very major task, is on line for October this year. In implementing the Children Act we will enable all proceedings relating to the same child and his family to be consolidated before a single court where that is appropriate and, as important, ensure that at every level the magistrates or judges concerned are specialists in the sense of having received specialist training and devoting a significant part of their time to sitting in family matters. What is more, local authority cases involving the care of children, while continuing to start in magistrates' courts, will be heard there by a new family proceedings court and in appropriate cases be transferred up to a higher court where their weight or complexity justifies it.
The Government have also made progress on reviewing financial provision on family breakdown with the publication of its White Paper on child maintenance, Children Come First. Our proposals in the White Paper carry forward the philosophy of the Children Act in giving priority to the child's interests and emphasising the primary responsibility of parents for the support and upbringing of their children.
The Law Commission's report on domestic violence and rights to occupy the family home is expected some time in the next 12 months. And, as

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today demonstrates, the Government are already beginning actively to consider divorce and the related issue of conciliation.
As I have already indicated, our first priority in the course of that review will be the welfare of children and the responsibility of their parents for safeguarding and promoting their welfare. Overall, our objective is not only to improve the substantive law but also to ensure that the best use is made of existing resources, with cases matched to the appropriate level of court and with courts concentrating on what they are good at; namely, the resolution of disputes where an authoritative judicial decision has something positive to contribute to a family's well-being.
Divorce is central to much of the review because in practice it is the hub round which the remedies relating to the upbringing of children and financial arrangements after separation all too often revolve. If our improvements in these other areas of the law are to become a reality for children and their parents by providing a system consistent in its practice and philosophy we need to have a divorce process which at the very least does not obstruct that objective and, better still, one which would promote it. That thought must be central to any comparison between the current law and proposals for change.
Turning now to the present law and the facts and figures relevant to its working, let me begin with the legal framework. The position today is that since 1969 there has been one ground, and one ground only, on which the court has power to dissolve a marriage; it is that the marriage has broken down irretrievably. But this is not the whole story. To establish breakdown it is necessary as a matter of law for one of the parties to satisfy the court that there has either been adultery, unreasonable behaviour or desertion by the other party, or that two years' separation has elapsed accompanied by consent to the divorce, or that there has been five years' separation. Divorce is therefore only partially fault-based now. Thus, no allegation of fault is required if couples agree to separate and to wait two years and no fault is required if couples do not agree to divorce provided that five years have elapsed since one of the parties left home. So, if couples can afford to wait two or five years in separate households, or wish to do so, they may avoid any element of fault even as the law now stands.
Of the 151,309 decrees nisi granted in 1989, only 36,420 relied on separation rather than fault, which is about 24 per cent. Fault, it appears, has one alluring advantage in that it allows for quick divorce. It is not therefore surprising, though it may be distressing, that the largest number of people, over 100,000 (112,160 to be precise) chose that route and alleged adultery, unreasonable behaviour or desertion against their partner in 1989. This represents over 74 per cent. of all divorces. The allegations of fault in practice provided the parties concerned with a passport to an immediate divorce with only 635 fault-based petitions being contested and listed for trial in 1989, of which less than half actually reached trial. The figures thus show that nearly three quarters of all divorced couples presently choose quick and uncontested divorce in which fault is
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alleged but never investigated. When I say "quick", I mean that the average length of time that it takes to get a divorce is between four to six months from the presentation of a petition to the granting of a decree nisi. A decree absolute takes a further six weeks. The present law, however, while providing for a quick divorce, does not formally provide an opportunity for the resolution of disputes or for negotiations about money, property, or even the children, ahead of the decree nisi.
The court may not, at present, however, make a decree absolute unless it is satisfied that arrangements have been made for the welfare of every child of the marriage; that these arrangements are in themselves satisfactory, or are the best that can be devised in the circumstances. It is the duty of the court to obtain sufficient information to indicate that there is a reasonable probability of adequate financial provision being made for the children and that the child will have reasonable accommodation. Going further into the facts and figures we begin to see an ever more disturbing picture if we regard divorce as being one measure of the rate of family breakdown and breakdown as a barometer of the health of the family in England and Wales today.
In 1990, 155,591 couples obtained a divorce by decree nisi. The previous year the figure was 151,309, and the year before that it was 154,788. The number of petitions presented in those three years has risen steadily: over 182,000 and 184,000 in 1988 and 1989 respectively and reaching in excess of 189,255 in 1990. More significantly, and more worrying in my personal view, are the figures which tell us how many orders were made relating to children. In 1989, 152,825 orders were made in respect of the upbringing of children involved in divorce, of which over 100,000 were contested. It thus appears that over 148,162 children under 16 were affected by divorce in 1989. If current trends continue almost one in four of all children will experience divorce in their family before the age of 16. Those are sombre figures, especially when one considers what effects research has shown family breakdown to have on the lives of children.
Research work has shown that there is a significant excess in the signs of emotional disruption among children of broken families, not just in the short term but, apparently, on into adolescence and even adulthood. The research points to increased delinquency, increased ill health and a greater likelihood of divorce in spouses who themselves where the children of broken homes. These effects are particularly marked where the breakdown occurred in the first five years of the child's life. Some explanation for these dismal consequences has been found in the frequent fall in the socio-economic position of the lone parent and the children after the divorce. For instance, in 1989 there were some 770,000 lone parent families dependent on income support and as many as 70 per cent. of absent parents were not making any regular payments.
Another significant effect of divorce has been the reduced educational achievement in children of divorced parents, leading not only to fewer of these children going on to further education when

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compared with their contemporaries but also to fewer of them obtaining employment at all once they leave school.
What is important about the current research is not just the awful evidence of the trauma which family breakdown causes children, but the positive evidence that it can be avoided, or at least reduced, in certain circumstances. These circumstances are relevant to the debate today.
Probably the most significant research recently published has shown the effect of parental conflict as a pervasive and destructive influence on the children where family breakdown occurs. The obverse is also evident. The situation shown to be most conducive to a child's welfare is one in which there is a minimum of conflict between the parents and a maximum of co-operation and agreement over the upbringing of the child. This points to a need to achieve or maintain a situation where both parents remain easily accessible and properly involved with their children in the event of a separation.
In the face of such research, and with so many families and so many children already subject to divorce, it must be right to look not only at the technical rules of law governing when a marriage should be capable of dissolution but also at the process of divorce through which people pass today and how it may affect them. It is against that background that the Law Commission has examined the issue and presented its proposals. It is also against that background that any argument for or against changes to divorce law must be considered.
The Law Commission's report recommends that the sole ground for divorce should remain the irretrievable breakdown of the marriage. The commission, however, recommends the abolition of the five facts, one of which presently has to be alleged. In their stead it proposes that the passage of a certain period of time—12 months—should elapse before the marriage may be dissolved. The commission proposes that this period be initiated by the lodging in court of a declaration by one or both of the parties that the marriage has broken down. The purpose of this period is that the parties should reflect on the consquences of their proposed divorce and consider carefully whether there is any prospect of saving the marriage. Further, where divorce is pursued they would be expected to identify the problems which needed to be resolved and, where possible, make the practical arrangements for dealing with them. The commission had particularly in mind questions relating to the care of any children.
The Law Commission points out that its proposal would effectively put an end to the granting of a quick divorce virtually on demand and ahead of settling arrangements for the future. That latter aim is underlined by the commission's proposal that the granting of a divorce should be modified by two powers. First, it recommends a power to postpone a decree when this is desirable to enable proper arrangements to be made either for the children's upbringing or for financial provision and property adjustment for the benefit of any children or either spouse. The second power recommended in the report
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proposes that the court should be able to refuse a divorce in any case where the divorce would cause grave financial or other hardship to the other party and where, in all circumstances, it would be wrong to grant the divorce. That is an important part of the commission's proposals which I should like to emphasise.
The Law Commission emphasises that the 12-month period would make couples face up to the financial and emotional consequences of divorce before a decree was granted rather than afterwards. It also argues that providing time could help couples to seek help from counselling or conciliation and mediation services. It is its view that it would put at the forefront of divorce a clear encouragement to the spouses to face up to their problems at the initial stages of a breakdown and thus encourage people to recognise and reconcile their differences within marriage itself. If that failed it would provide a clear opportunity for resolving any disagreements or entrenched areas of conflict within the divorce procedure.
The main changes in the law and practice which the commission's proposals would bring about are, first, that fault as a legal requirement would not attach to divorce. The single fact of proof would be the irretrievable breakdown of the marriage. Secondly, parties would have 12 months before a divorce was granted to settle arrangements about the children and any property or money rather than doing so as at present in ancillary proceedings after the decree is granted. In practice this would extend the period that it takes the majority of divorces to reach the ultimate decree absolute.
Thirdly, the Law Commission argues that its proposals would put consideration of the family's future arrangements in the forefront for resolution within a fixed period of time and could encourage couples to draw breath and seek some relevant help. The kind of help envisaged by the commission encourages the idea that families should take responsibility for their broken relationships instead of immediately jettisoning the family into divorce on the instant presentation of a fault-based petition.
I turn briefly to the last part of my promised disquisition; that is, attempting to identify and clarify what seems to me to be the major issues which we face in reforming divorce. Perhaps I may start with a matter of clarification. Divorce and family breakdown are not synonymous. As I shall explain, while there is an argument that the availability of divorce can in a general way affect the rate of family breakdown, I do not think it realistic to believe that if we banned or restricted divorce tomorrow the rate of family breakdown would be reduced markedly as a result; at least not in the short or medium term. If that is so, denying or restricting divorce would not relieve us of the need to find ways to deal with all the sequelae of actual separation, such as the arrangements for the children, financial provision and the apportionment of property or at least its enjoyment. Indeed, in a peculiar way, although divorce is the focus for many of our concerns about the rate and results of family breakdown, the actual legal effect of dissolving the

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marriage may be seen in many cases as having the least practical importance to the family concerned as compared with the other consequences of the family breakdown itself.
Secondly, to expand on a matter that I have already mentioned, given the fact that generally divorce involves those other aspects of family law, it must be right to look at the practical process by which divorce and the attendant problems of family breakdown are dealt with in the courts. Accordingly, like the Law Commission, we need to give attention to the process as well as rules governing the right to end a marriage.
I turn to the objectives of divorce reform and the issues to which it gives rises. I am in no personal doubt that our overall objective, as elsewhere in family law, should be to protect children as far as possible from the harm which family breakdown can inflict on them. That is the Government's first and clear priority. And that objective, in the context of divorce, will be best secured, in most people's minds, by a law which on the one hand supports the institution of marriage and on the other promotes the prospects of saving marriages which run into trouble; or, if that is not possible, promotes the prospects of the parents reaching agreement about the children and related issues of money and property and establishing a working relationship in which, though separated, both can play a full part in the child's upbringing and support.
As to supporting the institution of marriage, there is concern that the Law Commission's proposal finally to eliminate the residual element of fault from divorce law will send out the wrong message by removing the moral underpinning of marriage; that doing so will undermine people's respect generally for marriage and in the long term cause a higher rate of family breakdown. Against that it can be said that the near absolute right to a divorce and the culture of the "quickie divorce" to which fault has given rise may already be sending out the wrong message and that a statutory cooling-off period structured to emphasise the responsibilities of marriage is a clearer message about the true value and purpose of marriage itself. Personally, I find this an extremely difficult matter. It is curious that some people look to the re-introduction of a full fault-based system as a way of strengthening the institution of marriage when fault is used in the current mixed system to achieve the quickest divorces.
As to the objective of promoting the chances of saving marriages once they have run into trouble, no one perhaps would argue that formal and public allegations of fault, which are overwhelmingly the most used avenue to divorce, can enhance the prospects of reconciliation or, if that is not possible, the chances of the parties reaching accord about their children's upbringing and related matters and, most important of all, re-establishing a working relationship as parents for the future.
On the other hand, it may be said that bitterness is endemic in family breakdown and divorce; that the expression and formal finding of fault can be cathartic; and that if feelings of anger, injustice and hurt are not recognised in the law and allowed for in the process itself they will remain to fester and
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undermine the sort of co-operation that everyone seems to be agreed generally benefits children of separated parents.
As a footnote to that aspect of the debate, the House may wish to note that behaviour will of course remain relevant to matters of property and finance between the spouses. What is more, I understand that many of those concerned with marriage and divorce counselling and conciliation services see bringing the parties to accept their share of the responsibility or blame for the breakdown as a vital step in that process. To that extent, even were we to change the formal ground for divorce to remove fault, behaviour and blame will continue to feature in this process and need to be catered for.
I look forward to hearing your Lordships' views. Thrown into the arena, I am sure, will be the many moral, practical and philosophical issues that arise in discussion on any major social reform. It is easy to discuss divorce without emphasising the value of marriage as the foremost example of what can best assure the welfare of children and society as a whole. Nevertheless, divorce is an unavoidable element of life today and an area of life which, as I said earlier, invokes strong feelings in a great many people. I borrow some of the Law Commission's thoughts when I say that it is vital that the way forward in the area of divorce is developed with the most careful consideration and reflection. And I borrow again when I ask your Lordships to question not necessarily whether divorce should be easier, harder, take longer or be shorter but whether there can be and should be a better divorce law for those people who find no alternative to making use of that means of resolving their family problems.
Moved, That this House takes note of the Law Commission Report The Ground for Divorce (H.C. 636, Session 1989–90). —(The Lord Chancellor.)

The Gulf War
3.52 p.m.
The Earl of Arran: My Lords, with the leave of the House I shall now repeat a Statement being made in another place this afternoon by my right honourable friend the Secretary of State for Defence. The Statement is as follows:
"With permission Mr. Speaker, I should like to make a Statement on the Gulf and various matters arising.
"The allied campaign to liberate Kuwait was launched two weeks ago. The initial aim has been to establish air supremacy and then sufficiently to reduce the military capability of the Iraqis armed forces so that the liberation of Kuwait would be successfully achieved with the minimum of casualties to our forces.
"During this first period over 30,000 allied sorties have been flown against what was initially substantial air defences. From these 30,000 sorties 19 aircraft have not returned of which five were British. The House knows of those most regrettable losses in the first week, but will be pleased to note

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that none has been lost in the past week. That pleasure is combined with the deepest admiration for the skill and courage of our aircrews and of all the allies at the way they have sustained this vital air campaign. The initial denial to the Iraqis of the use of their airfields, in which the Tornados played such a critical part, the progressive suppression of their ground air defences, the shooting down of their aircraft seeking combat, have enabled air supremacy to be achieved so that hardened aircraft shelters and other military and strategic targets can be progressively attacked. This supremacy has been underlined by the sudden departure of some 100 Iraqi aircraft to Iran.
"The achievements of the air campaign so far include the destruction of all nuclear reactor capacity, about half of their biological and chemical production, military fuel and ammunition stores, a number of airfields out of action, major damage to command and control facilities, loss of centralised control of air defences, progressive reduction of Scud launch capability, and 22 bridges hit to inhibit re-supply of Iraqi forces in Kuwait.
"However substantial as these achievements are, I must warn the House that so vast is the Iraqi military capacity that it is likely to be some time yet before it will be sufficiently reduced to proceed with the liberation of Kuwait.
"In this connection, we have received a request from the US government for a limited number of B52s to be temporarily based at RAF Fairford to undertake missions with conventional munitions against Iraqi military or strategic targets which are supporting the continuing Iraqi occupation of Kuwait. RAF Fairford is an established forward operating base for B52s and the Government have readily agreed to their request.
"At sea, while the allied navies have been much involved since August in enforcing the embargo, it is only in the last few days that there has been any significant action against the Iraqi navy. In these engagements in which RN Lynx helicopters and RAF Jaguars have played an important role, 10 Iraqi patrol boats and minesweepers have been sunk and up to a further 25 damaged. A number of these: vessels had an Exocet capability. These naval encounters have frustrated what may have been an amphibious attack designed to coincide with the land attack at Khafji which occurred yesterday.
"In respect of the 1st Armoured Division, the continuing delivery of supplies is further enhancing its battle-ready capability.
"The House will be aware that we are now starting to hold a number of Iraqi POWs. I wish to affirm again that they will be held in strict conformity with the requirements of the Geneva Convention. That is our absolute commitment, and we insist on those requirements being observed by the Government of Iraq as well. To parade captured aircrew on television is in total breach of the convention as would be any detention of them at strategic sites. I regret to inform the House that
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the ICRC has still not even been informed of the names of any prisoners, let alone granted the access to which they are entitled. This inhuman treatment of the prisoners is causing great distress and the thoughts of us all are with their families, as is our admiration for the courage and steadfastness at such a difficult time. I confirm that we are making the strongest representations to the ICRC and the Iraqi authorities for these our concerns to be met.
"I turn now to our strengths in the Gulf. At the start of operations we had committed some 35,000 men to the Gulf. We have been strengthening units already deployed. Three additional battalions are being deployed to fulfil our obligations to prisoners of war. With the extra half squadron of Buccaneers I announced on 25th January, the total of UK personnel now committed will rise to about 42,000.
"The full operating costs in 1990–91 are now over £1·25 billion, excluding the cost of any replacement of loss of equipment and of munitions used. The daily operating cost has risen to over £4 million which so far would total nearly £200 million.
"In connection with these costs, I very much welcome the announcement by the German Government of a further 800 million deutschmarks contribution to our costs. We are very hopeful of other contributions from our friends and allies in support of our efforts in support of the United Nations.
"Turning now to matters of particular interest to our forces and their families, there have been complaints over difficulties in the availability at Post Offices of the very popular airletter, the bluey, and steps have been taken which I hope have dealt with this problem.
"Some honourable Members have told me of service families being charged normal international airmail rates for sending parcels to the Gulf. From tomorrow, I am pleased to announce that the Post Office is suspending the use of normal airmail rates for any parcels sent to BFPO addresses. All will be charged at the UK inland parcel rate. This clear instruction should end any confusion at Post Office counters about our policy.
"The telephone service we installed with the help of British Telecom and Mercury has been very popular but it is obviously somewhat expensive. We are therefore proposing to subsidise calls for all service personnel from the Gulf on a basis similar to that for forces in Northern Ireland. The value of this will be up to £10 a month; affecting, for example, three-minute calls at half price. I have to say to the House that many of our forces are not actually in early reach of a telephone kiosk at present, but their entitlements under this scheme will be accumulated for later use.
My Lords, that concludes the Statement.
4 p.m.
Lord Williams of Elvel: My Lords, the House is grateful to the Minister for repeating the Statement made in another place by the Secretary of State. It is

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important that the Government keep Parliament fully informed, in so far as we can be fully informed, about the progress of events in the Gulf. On behalf of the Opposition, I join the Government in congratulating the coalition forces on the achievement so far and in extending our sympathy to the families and relatives of those who may be lost or missing in action.
If I have some questions on the Statement for the Minister, I shall fully understand if he replies that they are too sensitive to answer. I wish in all respects to be as co-operative as possible. Nevertheless, I am sure that your Lordships will be interested if those questions can be answered without endangering our effort in the Gulf.
The Minister said that we now have air supremacy. Will he give a definition of what air supremacy means? We have had a number of definitions in the press, some of them contradictory, as between air supremacy and air superiority. I should be grateful if the Minister could clarify the point.
Secondly, is there any indication of what the motive was for the sudden departure of some 100 Iraqi aircraft to Iran? It is a most mysterious event. I should be grateful if the Minister would tell us whether the Government believe it was some planned venture or pilots defecting individually. What was it all about?
On the question of nuclear reactor capacity which the Minister said in the Statement had been destroyed in Iraq, does that mean, in the Government's view, that Iraq has no capacity for putting nuclear warheads on Scud missiles, or any other missile if it comes to that?
Fourthly, what in the Government's view was the point of the land attack at Khafji yesterday? Was it a propaganda effort by the Iraqis to show initiative? Indeed, it gained some propaganda value for the Iraqis; it showed that they were still around. How do the Government interpret what the Iraqi Government were trying to do?
We join with the Government in deprecating the treatment of prisoners of war by the Iraqis. We are glad that the Government are reaffirming their intention to follow the Geneva Convention in the treatment of Iraqi prisoners of war. If the International Committee of the Red Cross has not been informed of the names of the prisoners, let alone been granted the access to which it is entitled, are there any other measures that the Government can take? We have recourse, for instance, to other diplomatic representation in Baghdad to ensure that prisoners of war receive proper treatment.
We give an unqualified welcome to the telephone and parcel rates to which the Minister referred. It is tremendously important for morale that forces in the Gulf should be encouraged to keep as much contact with home as they can. It is a tough life out there. Anything we can do to support them is welcome.
The most sombre part of the Statement was that it is likely to be some time yet before the Iraqi military capacity is sufficiently reduced to proceed with the liberation of Kuwait. We understand that; I am sure
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that all your Lordships understand. All we can do at this stage is to congratulate the allied forces on their efforts so far and wish them well in the future.
Lord Mayhew: My Lords, we too wish to express our gratitude to the Minister for repeating the Statement. We join also in the sense of outrage that he and the noble Lord, Lord Williams, expressed about the treatment of prisoners of war. We note with satisfaction the big efforts the Government are making to try to make life a little more tolerable for the forces in the Gulf.
So much is happening in the Gulf that it is easy to under-rate the navy's magnificent achievement there in recent days. I do not know whether I am correct in my belief that in the Falklands and in the Gulf, every one of 19 Skua missiles discharged operationally has found the target. Whether that is so or not, the helicopter pilots, designers and manufacturers concerned deserve our warm admiration and thanks. The navy's achievement has been remarkable and should not be overlooked amid all the other important events that are taking place.
We welcome the Government's statement that air supremacy has been achieved. I take air supremacy to mean freedom of the skies for our aircraft and the complete eradication of the enemy air effort. If that is so, it is an important achievement and a milestone in the war. Perhaps I may say how glad we feel that the Minister linked that achievement with a tribute to our Tornados and our Tornado pilots who had the toughest job of all right at the beginning and who paved the way to subsequent achievements.
It was a surprise to hear about B52s being based at RAF Fairford. If that is operationally necessary and helpful we on these Benches support it wholeheartedly. I hope that security objections will not prevent the Minister explaining more of the thinking behind the move. Why Fairford? Other more accessible and handier bases come to mind. Without in any way risking a security breach, I wonder whether the Minister can say why Fairford has been chosen as an operational base for B52s.
Will the Minister say something about the remarkable Soviet-American agreement published yesterday? It spelled out with greater clarity, and more positively than before, what the two powers feel about the war aims and the handling of the Palestinian question after the war. Do the Government agree with that statement? There has been some disagreement among the coalition partners about the war aims. There is apparently some disagreement between the State Department and the White House. I am sure that it would be helpful to the House if the Minister could enlighten us about the Government's attitude.
In general, as the Statement sets out a story of success, we find it reassuring. We hope and believe that the Government will not move from the war aims stated in the Security Council resolution. On that basis, the Government can be sure beyond doubt that they will have the support of these Benches.
The Earl of Arran: My Lords, I start by expressing my gratitude to the noble Lords, Lord Williams of Elvel and Lord Mayhew, for their warm appreciation

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of, and support for, our success so far, and for their understanding that these are difficult and trying times not just for our men and women out in the Gulf but for their brave and courageous families who sit and wait at home for news from the front. These are very trying times.
I agree with the noble Lord, Lord Williams, that the House should be kept as well informed as is the other place by my right honourable friend the Secretary of State. That is understandable. I shall deal with a few of the questions asked by the noble Lord, Lord Williams. First, he asked about the definition of "air supremacy" as did the noble Lord, Lord Mayhew. We are now free to use air power to isolate the Iraqi forces, cutting off the supply routes to the occupying forces in Kuwait and further reducing Saddam Hussein's ability to fight on. Secondly, the noble Lord, Lord Williams, asked about the mysterious event, as he called it, of approximately 100 Iraqi aircraft moving to Iran. It is indeed a mysterious event. There has been much speculation on this matter. It would not be right or wise of me to attempt to speculate further. I think as events unfold the intent will become clear.
Reference was made to the fitting of nuclear warheads on Scud missiles and to nuclear reactors. We very much hope that these have been put out of action, but one can never be sure in the circumstances. It is our fervent hope that that is the case. I refer to the recent attack on Khafji. It is very difficult to interpret the reason for the Iraqi advance. Again, we shall have to allow events to unfold in order to discover the reasoning behind it. The noble Lord also raised a very important point regarding the situation of the prisoners of war. I can tell the noble Lord and your Lordships' House that we are putting every possible pressure on the ICRC to give us the names of the prisoners. We are taking measures to find out whether we can do that ourselves. It is a very difficult matter which I realise is of interest to your Lordships and those at home who sit and wait.
The noble Lord, Lord Mayhew, raised a number of points. For reasons of security I cannot go into the subject of the Skua missiles except to say that there has been a very notable achievement by the Royal Navy. The noble Lord also asked about the B52s and why they are at Fairford. The other airfields capable of providing the logistic and ammunition support required by the B52s operating in the Gulf already have their full quota of aircraft. The noble Lord, Lord Mayhew, asked about our war aims. I shall repeat firmly what I said last week:
"the objective shared with the United Nations, the United States, our European friends and allies and most Arab states, is to secure unconditional Iraqi withdrawal, the restoration of Kuwait's sovereignty and independence and the restoration of its legitimate government".—[Official Report, 21/1/91; col. 68.]
4.13 p.m.
The Archbishop of York: My Lords, I feel that a brief word from these Benches will be appropriate. The General Synod has been meeting in London during the past two days. We have spent much time in prayer for all those involved in the Gulf war. I thought
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that your Lordships' House would like to know that. We felt at this time that statements from Churches are not particularly useful, but that there should be continuing prayer for those at the political level and in the field who have to make extremely difficult decisions. We felt that there should be prayer for our forces exposed to danger and for anxious families. We considered that to be the best contribution that we could make. I pledge the continuing support of the Churches in trying to work for a just and peaceful settlement of the conflict by that means. At the same time I report encouragingly that there have been many contacts over the past few weeks between Christians and Moslems in this country in an endeavour to defuse some of the possible community consequences in our own land.
The Earl of Arran: My Lords, I am extremely grateful for the warm support from the most reverend Primate. As he rightly said, in this country prayer has always helped the hearts of many—those who are in the Gulf and others who are here. I am sure that your Lordships agree with his warm sentiments.
Lord Renton: My Lords, can my noble friend give any information about the attempts to deal with the disastrous oil slick?
The Earl of Arran: My Lords, much is happening and has happened in regard to that disastrous oil slick. The right way of expressing our disgust is to say that the release of the oil was pure environmental terrorism. The measures to reduce the impact and to protect the Saudi desalination plants are in hand. The United Kingdom is participating.
4.15 p.m.
Lord Hatch of Lusby: My Lords, I am sure that the thoughts and feelings of every Member of this House are with our fellow citizens and those of every other country involved in the Gulf, and with their families. We are all hoping and working for their return to their homes. In that connection, I wish to press the point put by the noble Lord, Lord Mayhew. Do the British Government agree with the agreement reached between the Secretary of State of the United States and the Foreign Minister of the Soviet Union in stating categorically that if Saddam Hussein and the Iraqis withdraw from Kuwait hostilities will be brought to an end at that moment?
There is another question which is not necessarily linked or associated with that point. Do the Government also agree that once hostilities are ended an international peace conference will be organised which will deal with all the problems of this region including those of Israel and the Palestinians? Is that the policy of Her Majesty's Government as well as that of the United States and the Soviet Union?
The Earl of Arran: My Lords, I thank the noble Lord, Lord Hatch of Lusby, for the thoughtful sentiments that he expressed concerning servicemen in the Gulf and their families back home. As I have already said, our objective is to secure unconditional Iraqi withdrawal and the restoration of Kuwait's sovereignty and independence. It is not possible for

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me to go further than that. Circumstances may change in the future; but that is how the situation stands at the moment.
The Earl of Selkirk: My Lords, can my noble friend say whether the loss of the Tornados is in any way due to engine or airframe failure?
The Earl of Arran: My Lords, I think it is too early to give the precise reason. However, the crews have acted in the most difficult and dangerous circumstances by flying at very low heights and at very fast speeds. I can only thank God that there have not been higher casualties.
Baroness Hylton-Foster: My Lords, has the noble Earl any information as to whether the Iraqi Red Crescent organisation still exists and, if it does, whether it is able to co-operate in any way with the International Committee of the Red Cross concerning the prisoners of war?
The Earl of Arran: My Lords, my understanding is that the Red Crescent organisation still exists. If I am incorrect on that matter I shall let the noble Baroness know immediately after the completion of this Statement.
Lord Molloy: My Lords, no doubt the forces of our American allies will be uplifted by the speech made recently by their President. It was a formal but eloquent speech. Although they will not need it, would it be possible for a message to be sent from our Parliament to our servicemen and women in the Gulf so that they will know that they are very much in our thoughts and minds?
The Earl of Arran: My Lords, the noble Lord makes a noble gesture. I shall make sure that my right honourable friend the Secretary of State is made aware of it.
Viscount Caldecote: My Lords, perhaps I may ask a question relating to the media coverage of the Gulf war. Do the Government feel that it is desirable and right that interviews should be conducted with individual servicemen in the front line and that those interviews should identify the serviceman concerned? Indeed, sometimes pictures are shown of them being interviewed. Would it not be better if such interviews, when desirable, were anonymous?
The Earl of Arran: My Lords, my noble friend makes a reasonable point. However, I think the House will agree that the interviews we have seen so far on television have been conducted in a truly supreme and superb manner. That they have given us huge confidence at home is due to the manner in which they have been conducted.
Lord Stoddart of Swindon: My Lords, the noble Earl said that the costs of the war to date were about £4 million per day. Yet I was watching a television programme this lunchtime in which a woman estimated that the costs of the war over the next three months could be as much as £5 billion. I have worked out that at more than £4 million a day the cost over
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three months will be £364 million. There is an enormous discrepancy between what the noble Earl has just told us and what is being fed to the general public. If figures of that kind—£5 billion over the next three months—are perpetually put over could this not undermine public support for our forces?
The Earl of Arran: My Lords, to make any kind of estimate of the eventual cost of the war is a very dangerous and unwise thing to do. Obviously we hope that the cost will be as small as possible, that the casualties will be as small as possible and that the time spent out there will be as short as possible. I repeat what my right honourable friend the Chancellor of the Exchequer said recently: our forces will not be cash limited; they must have whatever is necessary.
Lord Stoddart of Swindon: My Lords, the noble Earl has not dealt with my question. I perfectly understand what he is saying—we cannot possibly know the cost—and it is quite right that our forces should not be cash limited. But some in the media are telling millions of British people that the war will cost them £5 billion. The Government should make some representation about that if they believe that such reports are exaggerated.
The Earl of Arran: My Lords, I understand perfectly what the noble Lord says. Anything put over in the media in that way is high speculation. As I have already said, the overall costs to date are £1.25 billion, and at the moment the costs per day are in the region of £4 million.
Lord Hatch of Lusby: My Lords, it was disappointing to hear the stonewalling of the noble Earl on what is surely a reasonable request. An international agreement has been reached by the United States and the Soviet Union. It contains certain specifics. As an international agreement it is surely reasonable to ask our Government whether they adhere to it and approve of it. Surely the noble Earl can and should tell the House whether Her Majesty's Government adhere to the agreement made two days ago by the United States Secretary of State and the Foreign Secretary of the Soviet Union. The agreement was in specific terms. Quite apart from their previously declared aims, do the British Government approve of the agreement reached by two of our allies?
The Earl of Arran: My Lords, I cannot be more specific about the stance of the British Government in these circumstances. We have already said that we look forward to the possibility of an international peace conference at the end of the war.

Divorce: Law Commission Report
4.25 p.m.
Debate resumed.
Lord Mishcon: My Lords, the noble and learned Lord who graces the Woolsack has, as one would expect of him, given a most lucid account of the law as it stands and of the recommendations of the Law Commission. He has adopted, again as one would

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expect, a listening attitude. We are dealing today with a very serious national social problem. If there is a wholesale breakdown of marriage in our country it is a serious threat to the fabric of our society which is founded on the institution of marriage and the concept of the family. As the noble and learned Lord said, we are also dealing with a matter which is a grave threat to the mental, physical, educational and indeed financial future of our children.
One gets an idea of the scope of the problem if one looks at some general statistics in regard to the very matters we are discussing. If the current trends continue, more than one-third of new marriages will end in divorce. That means that around 3 million people will have broken marriages in the decade we have just entered. Half of the divorces come from marriages which have lasted less than 10 years. Fifty-six per cent. of the divorces in 1987 involved children under 16. The majority of those involved children under the age of 10. On present trends that means that one child in five can expect the divorce of his parents before he is 16 years old. So when your Lordships' views are asked on matters that affect divorce, conciliation and the children of divorced couples, you are considering a matter of immense importance socially to our nation.
The first reaction to those figures must be to ask whether we need some counselling and education in regard to marriage and not just after marriage and when the marriage looks as though it is breaking down. Against figures like these, do we not need to consider very carefully whether we are doing enough in our schools, in our propaganda and in our national education of youngsters after they leave school and before they enter into matrimony to encourage them to talk about the responsibilities of marriage? Marriage is not just a honeymoon and romance. It has its problems and the old adage of give and take is a very necessary constituent of marriage bondage—in using that word I do not mean it at all offensively to the institution of marriage.
There is criticism in the report, and rightly so, of our present divorce law. The noble and learned Lord dealt with the constituent factors which enable people at present to go to our courts and obtain a divorce, whether it be a "quickie" as it is sometimes called or a defended divorce.
The criticisms expressed in the report, with which your Lordships may agree, appear under five headings. The first is that our present law is confusing and misleading and often downright dishonest. The reasoning behind that finding is, as every practitioner knows, that the real breakdown of the marriage and the reason for it seldom appears truthfully in the divorce petition. The lawyer states upon what grounds the divorce can be obtained and then takes instructions to see whether the facts which are given lend themselves to any one of those grounds. The lawyer cannot investigate whether the parties have actually been living separate and apart for two years. Moreover, he cannot really investigate whether there
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is a genuine confession by the other spouse of adultery. Such grounds for divorce are often grossly deceptive.
The second objection to our present system of law is that it is discriminating and unjust. I know full well, as does everyone who has practised divorce law, that if you have a wealthy client and you talk to him about living separate and apart, he does not experience much difficulty in acquiring another residence. However, if you have a poor client, the difficulty of "living apart", as our law defines it, is very real. If a client who happens to be a council tenant wishes to obtain a separate residence from the council, he will find that it will insist upon a court order, which is an ouster order or an order for possession of some kind, before granting him a separate residence.
Thirdly, the report states that the present law distorts the couple's bargaining position. That is absolutely true. Fourthly, there is what is possibly the chief ground, and one which was emphasised so correctly by the noble and learned Lord the Lord Chancellor. I refer to the objection that it provokes by an antagonistic and adversarial attitude, when alleging either unreasonable conduct, adultery or something of that nature, unnecessary hostility and bitterness which so often carries over to the children. Finally—and how truly is this objection brought forward in the report—the present law does nothing to try to save the marriage.
Before we consider the reform of our law, perhaps I may draw the attention of your Lordships and especially the noble and learned Lord the Lord Chancellor to what happens at present in conciliation in regard to the children. I do so with a plea that the facilities and the atmosphere be altered as soon as possible, regardless of whether such reforms ever find their way on to the statute book. I say nothing to impugn the kindness and the patience of our registrars and court officials. At present in the Family Division, if there is a child case in regard to access and all the matters which affect children and parents so vitally, one makes an application which is heard before the registrar. At that point the registrar urges conciliation. It is a convention that the application hearing lasts no more than half an hour during which time the registrar in good faith tries to see whether there is a chance of conciliation. If the parties do not have an agreed order, they are ushered into a corridor of the court where a welfare officer is waiting to offer help.
The corridors of a court are not the proper places in which such matters should be considered. Moreover, if, as is so often the case, there happens to be a child present and a vacant room is available, he or she is put into a room alone. Although the child is usually visited by the welfare officer, there are no toys or comics in that room. If there is agreement at the end of the "corridor procedure", the parties go back to the registrar. The pressure in those circumstances on a mother to agree to such an order can be pretty terrific. On the other hand, if no agreement is reached, the parties go back to the registrar and arrangements are made for the matter to be heard by a judge.

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If that is the conciliation procedure designed to try to reach an agreed order in respect of the children, I believe that your Lordships will feel that such facilities—I use the word "facilities" as an understatement—are scarcely adequate or suitable. I ask the noble and learned Lord to inquire into such procedures. If he should find that what I say is correct, perhaps he will see whether something can be done to improve the system.
I turn now to the sort of considerations which your Lordships may think we ought to have in mind when discussing the report. The first—apart from the welfare of the children, which we obviously have in mind—is not to make divorce too easy. There is a great temptation among young people to give up when faced with the practicalities and problems of living together and when they find that the romance of marriage wears off a little, or sometimes quite considerably. Let us not make divorce too easy. On the other hand, I do not ask that it should be made too hard. As the noble and learned Lord said, if you make divorce too difficult it will not, in the short or medium term, mean that you have made marriages more happy or that you have stopped the breakdown of a marriage.
The second factor which we should bear in mind is the possibility of saving the marriage. The third must obviously be to try to take the bitterness out of matrimonial disputes, if only for the sake of the children. It is in that spirit that we should examine the main recommendation of the report which, as we have been told, calls for a process over time, allowing some 12 months for counselling, consultation and mediation.
In my view—I know that the noble and learned Lord the Lord Chancellor will agree—we must not take for granted the fact that we can translate words into an Act; that is, if ever we adopt the suggested Act which has been so usefully drafted as a Bill at the end of the report. We must ensure that we do not make ourselves responsible for words that mean nothing. It is wonderful to talk about a conciliation service, an advisory service, an advising service, a counselling service and so on. There are voluntary organisations dealing with this matter now and they will tell your Lordships that they are inadequately financed. They could do a lot more if only they were adequately financed.
If we are embarking upon a new era and if we are to pass an Act to carry out these recommendations, in safeguarding the children and trying to see that marriages are saved, we must have a conciliation and counselling service. I look to the noble and learned Lord, and I am sure he would not want to be responsible for this. We must not pass an Act of that kind without a firm assurance that there is the ability to find and train personnel and for them to have the proper facilities to enable them to carry out their duties. It is astonishing to ask: Have we not got enough financial burdens nationally and can we really deal adequately with the financial implications of the recommendations put forward in this report?
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A very worthy organisation called Relate, which deals with family advice and counselling, has saved many marriages. I believe it is the largest organisation of its kind. It set up an independent inquiry to investigate these matters about which I will tell your Lordships. In the period 1987–88 central government spent over £3.5 million every day in social security payments to divorced and separated people, with other directly related costs. Local authorities spent over £70,000 every day in 1988 in child-care costs directly resulting from marriage breakdown. This represents, so the investigation found, over £10,000 on average for every divorce or separation where children are concerned.
Those figures take no account of the cost of juvenile crime; and we know perfectly well that crime-related costs owe a substantial amount in their computation to the results of broken marriages. They take no account of additional housing costs, of child guidance or of family therapy. Therefore in the light of those figures we may think that if we had an adequate counselling and conciliatory service, operating as recommended in the report, we would be indulging not only in human saving but in national finance saving as well.
I have only one comment to make before I conclude and that is on the recommendations themselves. Your Lordships may feel that my comment is not a material one, but I feel that it has some relevance and ought at least to be raised in this debate. As the noble and learned Lord said, the recommendation is—and this is mandatory—that there should be a period of at least 12 months between the statement that the marriage has broken down—he absolutely correctly left out the word "irretrievably"—and the actual divorce. To have that as a mandatory matter, with no exceptions at all, cannot in my respectful submission be right.
What about the cases where there is a conviction for child abuse? Must there be a wait of 12 months at least between the statement that a marriage has broken down because of the conviction and the grant of a divorce? Must there be the same mandatory period where other relationships have been formed which, one hopes, to the party concerned are going to be of a permanent nature and a child is on the way? Must the child be born out of wedlock by statutory enactment because there is no discretion in a case of exceptional hardship? Must there be a further wait by mandate of at least 12 months where the parties have been living apart for a great number of years? I believe that is an important matter which ought to be looked at, with an exception being granted in a case of exceptional hardship where the court should be given discretion. Save for that matter, I believe there is much good in the recommendations of this report.
4.46 p.m.
Lord McGregor of Durris: My Lords, like all your Lordships, I am indebted to the noble and learned Lord for the succinct clarity of his exposition. I am also grateful to the noble Lord, Lord Mishcon, for his vivid insight into some elements of the procedure that we are discussing.

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A debate in your Lordships' House on the report The Ground for Divorce is a proper occasion for paying tribute to the Law Commission's contribution to the making of our family law during the past quarter of a century. One year after the setting up of the commission, described by the noble and learned Lord, Lord Hailsham, as the single most important event in this century in the field of law reform, a group appointed by the Archbishop of Canterbury published Putting Asunder: A Divorce Law for Contemporary Society. That group attacked the principle of the matrimonial offence and proposed breakdown of marriage in its place.
The Law Commission immediately seized the opportunity for reform thus offered by publishing a brilliant paper, The Reform of the Grounds of Divorce: The Field of Choice, which defined the objectives of a good divorce law as both to buttress the stability of marriage and, when a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and with the minimum bitterness, distress and humiliation.
From the early initiatives of the Law Commission under the chairmanship of Mr. Justice Scarman, as he then was, and his colleagues, notably in the field of family law, Professor L. C. B. Gower, came the Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970 as the first design of a new divorce law. Nevertheless this legislation left the summary jurisdiction unchanged, with several matrimonial offences as grounds for complaint for the many maintenance orders which testified to surviving shells of dead marriages which had not been afforded decent burials.
In one sense the present report is an inquest on the law and practice which have stemmed from those reforms of 20 years ago. First, as has already been pointed out, fault was never abandoned, because we all know that the legislation would not have passed if it had been. As the commission put it,
"… the law tells couples that the only ground for divorce is irretrievable breakdown, which apparently does not involve fault. But next it provides that this can only be shown by one of five 'facts', three of which apparently do involve fault."
But worse still,
"… the present law pretends that the court is conducting an inquiry … when … it can do no such thing… Moreover, the system still allows, even encourages, the parties to lie, or at least to exaggerate, in order to get what they want. The bogus adultery cases of the past may have all but disappeared, but their modern equivalents are the 'flimsy' behaviour petition or the pretence that the parties have been living apart for two years. In that 'wider field which includes considerations of truth, the sacredness of oaths and the integrity of professional practice' the present law is just as objectionable as the old".
What the commission describes as a "formidable case for reform" is reinforced by evidence that the present system is discriminating and unjust, provoking unnecessary hostility and bitterness, that it does nothing to save marriages and often makes matters far worse for children. The case for reform is elegantly and fully documented and presented with all the authority of the early Law Commission reports: it is overwhelming and accepted as such on these Benches.
We note, too, that the commission was at pains to obtain information about its proposals from a
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commissioned survey of the attitudes of the general public as well as sounding opinion extensively among those working in the family justice system.
Behind the criticisms of technical law and procedure lie the many long-run social changes, the cumulative effects of which we are now experiencing to their full extent. Chief among them are transformations in the social status and economic position of wives. One hundred years ago, when mothers said to daughters about to marry, "You are making your bed and will have to lie in it", they spoke the exact truth. Most wives were subject then to religious, legal and economic restraints which prevented escape from marriage. Two world wars broke many marriages and introduced wives to the labour market, so that today most wives spend the minority of their lives discharging the duties of motherhood and the larger part as workers outside the home with independent earnings.
Abundant evidence testifies to the methods by which families have adapted to this development. Married women tend to withdraw from the labour force to have babies and to rear them when they are infants: they take part-time work when their children go to school; and many go back to work full-time when their youngest child has reached school-leaving age. Seventy per cent. of mothers with dependent children work full-time. Eighty-two per cent. of childless women under the age of 30 are working full-time, 7 per cent. of mothers whose youngest child is under five are working full-time and 20 per cent. are working part-time. When the children have reached the age group 11–15, more than three-quarters of their mothers are working. Thus the care of children is a paramount consideration for most mothers when deciding the timing and form of their employment. That is why most women in the labour market are married women whose children are nearly grown up.
Wives have legal equality with their husbands in all the main areas of family law, and the legal aid scheme opened access to the divorce court in the 1950s, since sustained by the more recent introduction of "do-it-yourself' divorce by the noble and learned Lord's department in order to reduce the costs falling upon the Treasury.
Changes during this century in the sex ratio, in the proportion of the population marrying, in the age at marriage, in the compression of child bearing into a narrow span of years and in the expectation of life have greatly increased the proportion of the population marrying, as well as the duration of marriages. Till death us do part now means on average 45 years, almost twice what it was in late Victorian days. So that today the cement of marriage is as strong or as weak as the affection and loyalty of the spouses and it is a matter of choice.
There were some quarter-of-a-million marriages between spinsters and bachelors last year, accounting for around two-thirds of all marriages. No one suggests that they will cleave to their spouses till death parts them. Marriage in this society has become a romantic lottery and, as John Stuart Mill observed,

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"whoever is in a state of mind to calculate chances calmly and value them correctly is not at all likely to purchase a ticket. Those who marry after taking great pains about the matter, generally do but buy their disappointment dearer."
The massive increase in divorce during the last 40 years has been a recurring theme of many commentators' anxieties about the state of society. The rate at which marriages collapse varies considerably according to the duration of marriage, age of the spouses on marriage and their marital status before marriage. Further, a higher proportion of divorced husbands and wives will marry again, one-third of them within two-and-a-half years. Whatever may be the motives for divorce, it appears that divorced persons do not seek to escape from marriage.
Despite the retreat from the ideal of monogamous marriage, more than three-quarters of those living in private households in Great Britain in 1987 were in families headed by a married couple. Indeed some 44 per cent. of all people in such households lived in traditional family groups, consisting of a married couple with dependent children.
The existence of the family—and this is a fundamental point which we must recognise in the course of assessing the effects of these social changes—does not depend upon the law which is powerless to create, though it can regulate, the expression of the deep-rooted conjugal and parental sentiments on which the institution rests. Moreover, marriage and its informal substitutes are rooted in the family, and not the family in marriage. I do not believe that the retention of fault in divorce offers the slightest assistance to the casualties of broken homes or to the prevention of family breakdown.
Nevertheless, we must note the recent startling increase in cohabitation demonstrated by Mr. John Haskey in Population Trends in 1989. He estimated from the general household survey that there were about 900,000 cohabiting couples with some 400,000 dependent children. There are surprisingly high rates of cohabitation in certain age groups. If such trends persist it will not be long before your Lordships are debating a new Law Commission report on a regime for cohabitation.
All the evidence suggests that changes in the law of the grounds for divorce are unlikely to affect the rate at which marriages actually collapse. Abundant survey data for the past 40 years demonstrate the consequences of family breakdown to be poverty and seriously disadvantaged children in horrifyingly large numbers, as the noble and learned Lord stressed in his opening speech. It is a bitter irony that men in the lowest income groups experience more than twice the rate of divorce of men in the upper income brackets.
One reality behind the present debate on maintenance is that marriages in which husbands have the lowest incomes undergo the highest rate of breakdown. This type of commentary could be extended at great length, but I have said enough to show that considerable social concerns and developments are raised by, and cannot be separated from, a consideration of the Law Commission's report on The Ground for Divorce. The commission describes divorce
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not as a final product but part of a massive transition for the parties and their children. Undue concentration upon the technical law may distract attention from the social means which alone can mitigate the sufferings of children who are the chief casualties of family breakdown.
These have been examined by Professor Douglas Hooper and Mr. Mervyn Murch of the Socio-Legal Centre for Family Studies at the University of Bristol as part of a most valuable programme of research. The centre, under Mr. Murch, has been responsible over many years for a series of studies of such problems. The authors of the new report point to defects in the handling of cases which cannot be cured by changing the ground of divorce and which indeed obstruct a main aim of the commission; namely, that opportunities and encouragement to resolve matters amicably should be built into the system when appropriate.
If we are to have a divorce over time, emphasising the interests of children and the importance of conciliation and mediation, the whole range of relevant welfare services must be deployed and integrated. But the new research concludes:
"Whether eventually the family justice system is organised around a unified system of local family courts or upon the existing tiered but separately administered court structure, all those who have assisted this inquiry agree that in the interests of children and families the [present] system should be made more coherent and efficient … Although government is doing much in relation to the implementation of the Children Act, there are still serious structural obstacles. [Departments] remain divided at a ministerial level, at a local level, and in respect to the organisation of court welfare services. Every effort should be made to eliminate overlapping duplicated responsibilities, and to reduce the number of organisations involved. This is because structural boundaries reinforce the conceptual boundaries in the mind. These hinder the development of mutual cross-disciplinary understanding and collaboration which is so vital in this field. Administratively they also result in family justice matters being seen as marginal, and given low priority".
I regret this administrative fragmentation, which in itself would have been considerably mitigated if governments had supported the establishment of a unified family court, as recommended by the Committee on One-Parent Families. We have not got a unified family court, but it is essential that we have unified and integrated welfare services if the perils to which the noble and learned Lord referred in his opening speech are to be tackled.
5.7 p.m.
The Archbishop of York: My Lords, I am afraid that I shall have to start with an apology. The Statement on the Gulf and the unexpected length of the list of speakers have put me in a difficulty and it may be that I shall have to leave before this debate is concluded. I apologise to your Lordships' House for that.
I start by saying how much I agreed with the speech by the noble Lord, Lord Mishcon. In fact, I agreed with every word of it except the last section where it seemed to me that his proposals about, on occasion, shortening the one-year process would in time run the risk of opening a door through which all sorts of unexpected cases would start walking into court.

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I welcome this report, which I believe is moving in the right direction, and I endorse the claim that its aim is to make divorce law not harder or easier but better, and particularly better for children. The Church of England has not yet had an opportunity to express its mind on this latest report, but as the noble Lord who has just spoken said it is noteworthy that the basic thinking behind the report is an extension of the 1967 report Putting Asunder, for which Archbishop Michael Ramsay was, in the end, responsible. Since then it is clear that subsequent representations by our Church of England Board for Social Responsibility have been generally supportive of the Law Commission's thinking in this direction.
Although I speak in this debate as an individual I believe that what I want to say reflects the broad centre of Church opinion; and if it does not the right reverend Prelates on the Bench behind me will soon let me know.
Lord Molloy: So will we.
The Archbishop of York: Touché. Christians are always in a dilemma over divorce.
Within our Churches we have our own marriage disciplines but we recognise, as did Putting Asunder, that secular legislation cannot be expected fully to express Christian ideals. It is important, though, that the concept of marriage enshrined in the law should not depart so far from Christian ideals that there would in effect be two types of marriage in which Church and state would have to go their separate ways. I do not believe that the proposals before us fall into that trap, but they will need careful exposition. The principles will need careful safeguarding in the legislation, should it come about, if an unbridgeable gap between different concepts of marriage is not to be opened.
Some of the religious objections have already centred, and will centre, around the removal of fault. I find the arguments against any return to fault as a ground for divorce convincing. What they do not meet satisfactorily, though, as the noble and learned Lord the Lord Chancellor recognised in his opening speech, is the deep sense of injustice often felt in the course of the divorce, particularly when one of the parties may suddenly and unexpectedly have been abandoned and is then expected to accept it as a fait accompli without any sense of justice being done.
I grant that the processes of mediation and conciliation may help to alleviate this sense of injustice by helping people to accept faults on both sides. However, this may not happen. I suspect that it will not happen when one party is determined to break a marriage against the wishes of the other.
There is a recognition of this in paragraph 3.19 of the report which suggests that an element of fault may still play its part in the process of deciding how to divide the property and what to do about the children. However, the paragraph makes it clear that the reference to fault is only to be made in what it calls "exceptional cases". I doubt whether it is wise to confine it to exceptional cases. It all depends on how exceptional "exceptional" is. It seems to me that the moral flavour of the process may depend quite heavily
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on where that line is drawn. If any legislation is brought forward I hope that it will be given careful consideration.
The second religious objection which we have heard already is the claim that what is proposed is in effect "divorce by consent". This phrase is frequently used in arguments without defining precisely what it means. A paragraph from the earlier report, Putting Asunder, is worth repeating:
"The fatal defect of the consensual principle is not that it requires both parties to agree in wanting divorce (that spouses do agree on this not infrequently is a fact that a realistic law needs to take into account) but that it subjects marriage absolutely to the joint will of the parties, so making it in essence a private contract. Since it gives the court, as representing the community, no effectual part in divorce, it virtually repudiates the community's interest in the stability of marriage. Moreover, if the covenant that initiates marriage is to be revocable by mutual consent, its intention cannot meaningfully be called 'lifelong': provision for divorce can be reconciled with a lifelong intention only if divorce is subject to an authority that is independent of the will of the parties. Dissolution of marriage ought always to require a real exercise of judgment by the court, acting on the community's behalf".
That is well said and needs repeating. It seems to me quite fundamental and in the light of it I believe that the report can still be said to preserve the intention of lifelong marriage.
However, there still needs to be discussion about precisely what kind of judgment under the new proposals the court could be said to exercise. If we look at the criteria set out in paragraph 5.78 of the report—the criteria on which it is proposed that the court will make its judgment about the admissibility of divorce or separation—we see that those are all purely formal criteria. They are in no way dependent, so far as I can see, on what may or may not have been achieved during the process of time in terms of making a satisfactory settlement.
There are two points about that which alarm me. The first is the provision in paragraph 5.54 of the report that the court may make final orders relating to children, spouses and property before the completion of the process—in other words, before the year has elapsed. I can understand the reasons for that, particularly the necessity to settle the care of children as early as possible, and I note that such final orders can, according to the proposals, be rescinded, but the effect of making and ratifying all these decisions at perhaps a quite early stage in the process would surely be to make the final judgment of the court even more of a formality and thus, in time, reduce the significance of the process.
In other words, this provision could tip the whole procedure further in the direction of divorce by consent. Would it not be possible to have some system of temporary orders when these are needed in particular cases, which could then be made permanent when the divorce is finally granted?
My second cause for alarm is that a purely formal judgment at the final stage is scarcely a judgment at all. I hope that more emphasis will be given to the suggestion which appears in the report in paragraph 5.56, and the following paragraphs, which would allow the court to extend the period of waiting when

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a satisfactory settlement has not been reached by the two parties. I believe that the existence of such a possibility as more than a very exceptional occurrence, as the report suggests, would strengthen the role of the court in a helpful way and allay some of the fears of those who would regard this final judgment as no more than a rubber stamp.
I wish to say a few words about conciliation, as did the noble Lord, Lord Mishcon. I was delighted with what he said and I must declare my interest as one of the two patrons of the National Family Conciliation Council. The other patron is the noble Baroness, Lady Faithfull, who will be speaking next.
I welcome the prominence given both to reconciliation and to conciliation in the report. I wish to stress what has already been said; that the effectiveness and acceptability of the services provided will be crucial to the implementation of the principles of the report. The worst possible result would be to initiate divorce by a process in time and then empty the process of any but a formal content by failing to provide proper reconciliation and conciliation services.
I believe that to be acceptable the services need to be voluntary. We cannot force them on people. They must be seen to be independent of the courts. They must be voluntary to be acceptable, but to be effective they must have proper funding. Here I can only speak of the National Family Conciliation Council which is in the process of developing a nationwide network of local agencies. However, to do so it has had to depend entirely on voluntary giving and fees. The result is that a huge and unnecessary amount of energy has been spent on fund raising by skilled people. The central organisation of that council is absurdly fragile when one considers the weight it has to bear. I believe that some core funding is essential if the council is to bear the weight envisaged in the future, or even for it to survive and grow in the present circumstances.
I repeat that I welcome these proposals provided that the content of the process can be strengthened in the ways that I have indicated. I am quoted in the report as saying:
"If a law is not easy to operate my experience is that the lawyers will find a way to make it easy to operate".
I am gloomily conscious of the fact that that premise is true. The legislation has to be framed in such a way that divorce cannot become a mere formality, otherwise we tip the balance too far in the direction of the couple themselves and away from the long-term interests of the community in maintaining that marriage is a social reality—I maintain it is also a spiritual reality—and not just a personal contract.
5.22 p.m.
Baroness Faithfull: My Lords, I too must apologise to the House as I cannot be present for the end of the debate. I apologise to the noble and learned Lord the Lord Chancellor. I believe he knows of the appointment that I have.
I join with other noble Lords in thanking the noble and learned Lord the Lord Chancellor for his clear
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explanation of the present law and of the recommended changes in the Law Commission Report The Ground for Divorce. I presume to speak in this debate as a former social worker with experience of child guidance clinic work. I am also a former children's officer and director of social services. In those roles I have dealt with cases of divorce in all sectors of society. I have dealt with the wealthy, the poor and those in the middle financial band. The cases involved conciliation work. As the most reverend Primate has said, that entails mediating between the divorcing parents on such matters as housing, finance, the education of the children, the terms of access and the adjustment of the children to the breakup of their parents' partnership.
In some cases the outcome of such discussions was reconciliation. However, in many cases the outcome was an agreement between both parents on the terms of the divorce. My remit extended to working in the courts. My training and experience leads me to accept the recommendations of the Law Commission's report on divorce which recommends removing the five faults provision and replacing it with the passage of time provision.
As the noble Lord, Lord McGregor, has said, it is a sad reflection on our society that there is such a high divorce rate. I wish it were otherwise. This is not the time or place to go into the possible reasons for the breakdown of marriages save to say that in many instances a crisis in human relationships develops. That may be due to emotional deprivation in childhood, social factors, factors of war or incompatibility of temperaments. Be that as it may, we must accept that a divorce that is withheld, delayed or obstructed does not save a marriage.
I agree with the noble and learned Lord that the rights of children are paramount as laid down in the Children Act 1989. For the sake of the children we must surely seek a divorce process which will harm them least. We must also seek a rearranged structure which involves the least hurt for their parents and on which they can build a future life which is without bitterness. That brings me to the grounds for divorce in relation to their effects on children. I wish to refer particularly to the five faults provision that the Law Commission wishes to remove.
A child's love for his parents is a golden nugget. A child identifies with his or her parents. If that child hears ill of the parents he loves and if a finger of blame is pointed at those parents, that child's image of himself is diminished. The child in turn can be emotionally hurt and damaged. Therefore divorces should be conducted in such a way that this does not happen.
A small girl came to me in tears because the children at her school had spoken disparagingly of her mother. The children had called her mother a whore. The girl asked me what that word meant. She said the children at school did not understand that she loved her mother and that her mother was good to her. The girl asked me why the children spoke about her mother in that way. She said the remarks made her feel bad. On another occasion a boy aged about 12 said to

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me, "Miss, the children at school say that my father is unkind and wicked. He has never been unkind to me and I love him". He said that he felt damaged in some way by the remarks made about his father.
I submit that the process of trying to prove the fault in a divorce is damaging to the children. Divorce by passage of time, as recommended in the report, does not diminish the children to such a great extent. The children may be taken from the parent who in law has committed the fault when none of us can really know what goes on within a family and who is to blame for the breakup.
Representations have been made to me—I expect other noble Lords have received similar approaches—that if one takes away the fault procedure from the process of divorce, one diminishes the moral fibre of society. A notable moral philosopher and theologian, the Reverend Canon Dunstan, wrote:
"What does this mean in terms of Christian morality? Where in the teaching of Jesus are we taught to blame others to our own justification or advantage? In terms of strict gospel morality the fault basis of divorce can have no standing at all".
A marriage is a deeply personal experience. In the deep recesses of the spirit it is not easy for any of us to judge where the fault lies when a breakdown occurs. The one perpetrating the fault could have been aggravated and forced by the other partner to behave unreasonably. I say:
"Judge not, that ye be not judged".
In a divorce there should be a duty to minimise bitterness and harm to both the parents and the children. Therefore, in my view, divorce by passage of time offers the wisest way to reconstruct broken relationships in such a way that the children of separating partners have the opportunity to rebuild their lives and to have a positive future with as little hurt and bitterness as possible.
Much can be done in that year: settling the questions of the custody of the children, access, housing and maintenance. As I see the process, parents will register the divorce. They will be told that within a year they can have the divorce if they have come to understand each other and to understand the difficulties and if they have reached agreement regarding the children, access, money and housing.
They should not be forced to conciliation, but the conciliation service offers great help to parents. I support the noble Lord, Lord Mishcon, in calling for Government support for a good conciliation service throughout the country. As the most reverend Primate said, we are both patrons of the National Family Conciliation Service and Council. I believe that we think alike on that matter.
After conciliation, the parents may opt for a divorce. Unfortunately, I shall not be present to hear the noble and learned Lord, Lord Simon. However, I believe that he may say that we should have family courts and that parents cannot be assessed except on the basis of fault. I may be wrong, and I shall read the report of his speech in Hansard. I would prefer that we proceed on the basis of the document Children Come First which recommends that there should be a
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formula determining how much parents should pay for the upkeep of their children and that maintenance should be assessed on the basis of that formula.
If divorce must come about—and we cannot force people not to divorce—we should seriously consider adopting the recommendations of the commission.
5.33 p.m.
Lord Stoddart of Swindon: My Lords, on Monday of this week I received representations from a religious organisation. I said then that I had no intention of speaking in this debate. However, I then received further representations from an organisation called Families Need Fathers. That persuaded me that I should at least listen to the debate and perhaps say a few words on the subject.
Having heard the previous distinguished speeches I fear that anything that I have to say may be repetitive and perhaps inadequate. I shall say it, nevertheless.
I should like to thank the noble and learned Lord the Lord Chancellor for putting forward the report in a way that those of us who are laymen in these matters can understand. The report will undoubtedly assist in taking some of the bitterness out of divorce. I am glad that there will be some delay in implementing the proposals contained in the report because I believe that there are other matters which need to be attended to. I shall refer to those later.
I was also impressed by my noble friend Lord Mishcon when he referred to conciliation and counselling. I agree with him that there is a need for counselling not only after marriage but before marriage. Anybody who has been through a divorce knows that divorce is a great trauma. It is an experience which wounds. Although wounds may heal over a period of time it is almost inevitable that the scars will remain throughout the lifetime of the person who has divorced. The bitterness also remains and taints a person's life until the end of his or her life.
It is very important that all of us in society—particularly parents—should counsel our children before they embark upon marriage. As my noble friend said, marriage is not a perpetual honeymoon. It involves great responsibilities. It involves the creation of children and the rearing of children. That is a serious matter for individuals and for society. The family is the basis of the nation. Let us make no mistake about that. The family unit is the very fundamental of the nation. If the family is broken up and if the concept of the family does not persist the nation itself will suffer.
The attitude of society towards personal relationships and marriage has changed over the years. I believe that it has changed for the worse. People are allowed to embark upon marriage too easily. I believe that the media have much to answer for in the matter of personal relationships and of sexual relationships. All too often the media portray sexual relationships as about not procreation but recreation. They have put the cart before the horse. When young people embark upon marriage it is essential that they understand that although the marriage may not be for life they ought

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to try to make it for life and not enter into it with the idea that if it does not work divorce will be relatively easy.
As my noble friend and other speakers have said, it is most important that we ensure that resources are available for conciliation and counselling services. Not only should financial resources be available, but the people who undertake such work should be trained for the work and also fitted for the work. Noble Lords will understand exactly what I mean by that. Simple training will not enable proper conciliation and counselling to be given. Often it needs experience. People with experience and training will be invaluable in providing that service.
I should like to conclude on one very important point which I believe has to be addressed in the matter of divorce; namely, the adversarial nature of divorce where in fact the solicitors of the parties do not try to conciliate or do the best for both parties and the children, because that is not the system. They try to do the best for their client. That often means trying to get the most money for their client or obtaining the custody of the child or children of the marriage with the least possible access for the person who does not have custody. That matter must be addressed. We must try to eliminate the adversarial nature of the system.
Also, during proceedings and consultations the solicitor will do his best for his client in the financial sense. That is his job. No one criticises solicitors for that. Under the present system that is what solicitors are expected to do. Unfortunately, in the English system anyway, no proper guidance seems to be given to the courts on the matter of how property should be shared. I understand that a different situation pertains in Scotland. In 1985 the Family Law (Scotland) Act came into force. It gives guidance as to how property should be shared. For example, account is taken of the fact that people might have had property before they were married and that there is family inheritance which perhaps should be passed to children. Account is also taken of property which has been accumulated by both parties. As so often is the case, matters in Scotland seem to be arranged better than in England and Wales.
It may well be that before decisions on grounds for divorce are finalised we should consider the question of financial disposal and sharing and perhaps bring to England the benefits that obtain in Scotland which, I understand, have been working very well for the past five years.
5.42 p.m.
Lord Simon of Glaisdale: My Lords, at the impressive start of his impressive speech the noble Lord, Lord Mishcon, gave some striking statistics. I wish to isolate only one of them; namely, that today one third of marriages break down. Moreover, as the noble Lord pointed out, that is a rising trend. The figures today are double those of 20 years ago. We should bear in mind that 20 years ago saw the coming into force of the Divorce Reform Act 1969 which is
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now consolidated in the 1973 legislation. Obviously that Act was not the sole cause of the alarming trend. But that it would be a cause was predictable and indeed predicted by my noble and learned friend Lord Hailsham who was then the spokesman on home affairs in the other place. It was also predicted by Sir Lionel Heald who was by his side during those debates.
In approaching this report one should bear in mind the hyping—the high pretensions that were made when that Act was under discussion. It was described as "a kiss and make up Bill". I venture to think that there has been altogether a high degree of complacency in the approach to this report and the attached Bill. I hope that I may be forgiven for saying that I thought that that was particularly marked in the speech of the most reverend Primate. It seems to me serious that this report has not faced the fact of the increase or what has caused it. Nor indeed has it distinguished the Divorce Reform Act of 20 years ago as one of the influences. That it has failed to do so seems to me to be a serious flaw in the report, but it is by no means the only one.
As the noble Lord, Lord Mishcon, pointed out, marriage and the family are institutions of society. Marriage is the institution which gives rise to the institution of the family; and in our culture the family is the institution by which society ensures its survival. The family ideal is that marriage is a life-long relationship. The most reverend Primate claimed to discern recognition of that in the report. I myself fail to find even lip-service paid to it.
The life-long relationship has two principle aspects that concern us today, although there are others. In the first place there is a division of responsibility—a division of labour—between husband and wife. The wife necessarily incurs economic disadvantage by bearing children, suckling them and generally looking after them in their early years. All too often she has a part-time rather than a whole time job. Where there is a functional division of labour of that kind, there is a claim to share in the fruits of the labour and that is a life-long claim since the economic impairment of the wife is a life-long feature.
The other aspect is not purely economic. Bacon said, in a way which to us is perhaps distasteful and, as we might put it, male chauvinistic:
"Wives are young men's mistresses, companions for middle age, and old men's nurses".
I think that that could be equally put with the genders reversed, that being changed which has to be changed; so that the life-long relationship, the life-long element in a marriage, is not only economically fair but psychologically fulfilling. We endanger it at our peril. Again, that issue has not been considered by the Law Commission.
In Part II the commission has forcibly pointed out the grave disadvantages of the 1969 Act. It is now the 1973 Act. It pretends to something that it does not deliver; namely, irretrievable breakdown as the sole cause. While purporting to eschew fault it introduces two, perhaps three, grounds which embody the concept of fault and which are prerequisites to the

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finding of breakdown of marriage. Having demolished the pretensions of the 1969 Act the Law Commission merely discards what my noble and learned friend calls the five facts. However, it goes back no further than the breakdown of marriage.
"Breakdown" was very much in the air during the late 1960s. It was one of those extraordinary gales of intellectual force that sometimes sweep through a society. A similar but more dangerous gale appeared in the late 1920s; namely, the gale of pacificism. It is true that it was soon reversed when the true nature of Hitler's danger was perceived. However, during the late 1960s breakdown as the ground for divorce was all in the air. The Church of England's pamphlet, Putting Asunder, relied on breakdown as the sole ground. However, it went on to say that each case must be fundamentally investigated to ensure that there is true breakdown. As the Law Commission pointed out in The Field of Choice, that was quite impracticable.
In considering the speeches that are made in support of the report one must bear in mind the attitude of the Church of England at that time. Putting Asunder had virtually crippled the principle on which the Church had been depending as regards its view of marriage for a long time; indeed, until Archbishop Fisher gave evidence to the Royal Commission in the 1950s. The evidence was printed as being the view of the Church. Putting Asunder was quite at variance with that. Not only was the principle crippled but willpower in facing the 1969 Act was also impaired. Therefore, the Church offered no real critique to the 1969 Act. I do not know whether it agrees with the strictures that are now passed on it by the Law Commission. Again, that is a matter that has been insufficiently considered in the report.
What are the implications of breakdown? Obviously it encompasses divorce by consent because if both parties say that the marriage has broken down who is to gainsay them? But breakdown goes further. It allows the divorce by one party against the will and the wish of the other party who may have substantially performed her matrimonial obligations. I wish to quote a case which I had to try. It was the case of Qureshi and appears in the Law Reports. It concerned a Pakistani marriage, the parties being domiciled in Pakistan. By general Islamic law a divorce can take place at the suit of the husband by his simply pronouncing the talaq, "I divorce you", three times. However, the Pakistan legislature had imposed a stay, a stop; a pause for reflection and consideration, to adopt the words of this report. The parties had to go before a counsellor to see whether the marriage was irretrievable. In this case, the parties being in England, they went before someone from the Chancery of the Pakistan High Commission. The gentleman thought that the marriage was savable; the wife wished to be reconciled. In fact, the marriage could not be saved because the husband was adamant that he would not return to his wife whatever was said.
I cannot see that any mediation can do anything to help in such a situation. The husband, for instance, can say, "You may think that my wife is a charming woman but I am the one who is married to her. I am
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not going back". For good measure he may add, "What is more, there is someone I prefer". After all, we must face the fact that divorce is a licence to live apart coupled with a licence to remarry. Again, that is not considered by the report. It does not consider that breakdown as the sole ground, particularly as it is delayed only for a year's interval for consideration and reflection, allows the repudiation of a substantially innocent spouse by the spouse who is substantially at fault in the marriage.
I do not apologise for using those terms. There was a silly catchphrase at the time of the 1969 Act; "There is no black and white in marriage, only degrees of grey". Humanity being fallen, I do not doubt that in general there is no white but that does not mean that there is no distinction between off-white and charcoal. I can say from all my experience that it is absolutely impossible to deal fairly with financial and property matters in general without considering a fault in some measure.
Finally, I turn to the subject in respect of which the report is most at fault; namely, children. The Government's main paper is entitled Children Come First. That was also proclaimed by the Children Act passed two Sessions ago. But do they come first here? Do we not rather invite the parties to please themselves as to the future of their marriage and then, as the report states, look round to see what one can do to mitigate—not obviate —the harm that is liable to be caused to the children? I need not expatiate upon that harm because it was graphically and truly described by my noble and learned friend on the Woolsack in his opening speech. The damage is likely to be serious and to last long beyond childhood.
Therefore, should not the Law Commission at least have considered whether divorce should be permitted at all where there are children under the age of 16? After all, in these days of general contraceptive measures, both natural and mechanical, the birth of a child is generally an advertent and intended act. On the birth of a child parents take on new obligations. They are no longer entitled to consider only themselves or each other. They have now a child who comes first in the view of the Government. If divorce is so damaging to young children, should it not at any rate be examined—as it was not—whether divorce should be available at all where there are young children?
The final matter that I wish to mention was touched on by the most reverend Primate. How far is society really entitled to interfere in matters such as marriage which are founded on contract? He is right when he says that society is entitled to do so because marriage is an institution of society. Indeed it is politic to do so where children are involved. However, is it politic to do so when the parties no longer have obligations to children? Would it not be reasonable in that case to allow freedom of choice; in other words, divorce by consent which is the proposal by the Law Commission.
From that suggestion I should have excepted those for whom marriage is a sacrament, or is of the nature of a sacrament as in the case of the Church of

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England. However, is it not arguable that those people should be allowed to contract a marriage which does not allow divorce? When that was suggested in about 1969, the proponents of the Bill, who were very anxious for easier divorce, said that that would involve first and second class marriage; in their view, a first class marriage being one where there is no divorce. Surely that is a curious concession. Why should people not be allowed to contract out of divorce at the time of marriage? Again, that has not been considered in this report.
I return to the point at which I started. One-third of marriages are now foundering and the proportion is rising. It does not take great powers of prophecy to prognosticate as to the effect of the Bill annexed to the report. I have not the slightest doubt that it would mean a further increase in divorce.
6.4 p.m.
The Earl of Selkirk: My Lords, I had not realised that I was to hear an important statement by the noble and learned Lord the Lord Chancellor. I am very glad to have heard the statement of his intentions. They are very far-reaching, and I wish him good luck with them. It will be very difficult to achieve what he has in mind and what he has laid before us today.
I have read a recent report from the English commissioners and it is extremely impressive. I was particularly touched by the depth of humanity shown in that report. I do not understand what has happened in this country. However, there have been very far-reaching changes in this sphere in my lifetime. Perhaps I may give one example to illustrate that. One of the senior commanders in the armed forces divorced his wife. He resigned his office immediately. That may be a small matter but that would not happen today. That is a measure of the change of standards which are the essence of the problem which my noble and learned friend the Lord Chancellor has in mind. Those standards have drifted astray and we must put that right.
I found some strange figures on this matter. I do not know whether they are true because it is very difficult to obtain figures on this subject. I read that 72 per cent. of men asked thought that the present English law on divorce was right. That seems very strange. I saw another statistic that 51 per cent. of the men who become divorced are very sorry that that happened. I do not know whether those statistics are true. I do not live in the realms of statistics and do not know what they are all about. I wonder about the anxieties that the law is in some way forcing people to divorce. That has never been my experience of lawyers. They have always used every defence possible—not that I have ever sought divorce.
The essence of the matter is that opinion is changing. Perhaps I may take an example. The birds of the field learn how to make a nest. Without being discourteous, I do not believe that any noble Lords know how to make a nest because it is extremely complicated and detailed. How do the birds learn to do that? I do not know, but they do learn it. If one
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becomes an engineer or a lawyer, one spends years learning how to to do that. That probably takes three or four years. However, no one is trained in marriage. That was the point which the noble and learned Lord made. No one attempts to ensure that the functions of the body and the other needs arising in marriage are understood. We do not attempt that. Should we not make some sort of arrangement? If you are an a actor, you take years to learn your profession. For a minister of religion, there is a long and exacting training. I know more about Scottish ministers than English ministers but that is by the way. Those matters are commonplace. Some sort of introduction should be put together so that it is known what marriage amounts to and what problems may arise. Some people are by nature open, and some are very selfish.
The essence of this matter—and it is not necessarily to do with divorce—is our standards. Do we maintain today anything like the level of standards which has existed previously? I agree that those standards were different. Some things were allowed which we do not allow, and some things were forbidden which we allow.
My noble and learned friend is dealing with a matter which will receive enormous response. We shall expect that action will be taken to make marriage fuller and nobler. I believe that a married man is held in greater dignity and is wiser than an unmarried or divorced man. I am sure that that is because of the richness of marriage. We are taught by our religious leaders about the sanctity of marriage. To many people that sanctity is natural, because how else would one treat someone whom one has offered to make one's wife? I wish the noble and learned Lord the Lord Chancellor every good fortune with his proposals.
6.10 p.m.
Lord Molloy: My Lords, I rise at a stage in the debate when most of the fundamental points contained in the commission's report have been touched upon. However, there are some vital aspects of divorce procedure which have not been covered wholly by the report, and I hope to mention them later. We have been fortunate to hear superb speeches from the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon, who set the scene for us. A number of matters that I did not understand, I understood more clearly after I had listened carefully to their speeches.
Divorce is a terrible social failure. It is an exaggeration of failures. Most lawyers agree that divorce is unfair to men. I have heard from many barristers and lawyers, who are divorce law specialists, that more often than not divorce is grossly unfair to men. I shall not go into details, but I can supply them if required. We have to consider the sharing of property when a marriage is over. According to knowledgeable specialists in the legal profession, that is also unfair to men. They seem to lose much more, and, what is worse, especially where children are not involved. That is an aspect of divorce that we must study.
The problem of people who marry late in life has not been mentioned. After three or four years they

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may go through a divorce. Their lawyers again say that it is always the man who suffers. The little lady is the innocent one, while the man has to pay up. Much of what I have learnt has been the result of the superb reply I received from the noble and learned Lord the Lord Chancellor to a question I asked. That reply was published by the press. It resulted in me receiving hundreds of letters. I am pleased that I received them, because they enabled me to understand a great deal. As a result, I shall be supporting the propositions being put forward.
In many cases after a five-year marriage many elderly men have had to transfer their entire old age pension to pay what the Americans call alimony and what we call maintenance. That is serious when one considers that a man has paid for his pension since he was 16 years of age. He reaches the age of 68 or 69 and has been drawing his pension for three or four years. It is then taken away from him. That is something we must consider.
The Law Commission's report is a timely and valuable response to the public's anxiety over the rate of divorce. It is an intelligent, deep searching endeavour to find a good divorce law. We cannot outlaw or abolish divorce, but we can try to find a good, fair and just divorce law. The report is a fundamental step in that direction. However, it fails to examine some of the distasteful activities that are carried on within the law by a minority of the legal profession, mainly the so-called specialist solicitors.
The proposal for a one-year cooling off period will not make the ending of marriage any easier but it will encourage civilised forgiveness, understanding and tolerance. Some aspects of the commission's report deal with those issues. It is a wonderful thing to be concerned about those matters. In some situations which seem to be impossible, a pause to consider what is involved, especially where there are children, may help to avoid divorce. What is wonderful about the report is that it concentrates upon that endeavour. It is not just talking about what is a fair or good divorce, it tries to bring about a situation where divorce can be avoided. The other point for which it deserves credit is that it puts the future of children high on the agenda and that is given proper consideration.
The noble and learned Lord the Lord Chancellor gave a moving reply to my question. He said that one should show concern for husband and wife and uphold the sanctity of marriage. As I have said, that reply brought me hundreds of letters. It gave me some experience of many of the things that people go through during a divorce. The present system of accusation and counter-accusation means that any form of reconciliation is greatly reduced. The commission's report mentions that point. The present system seems to be saying that we should kill the marriage rather than seek to cure its faults. The Law Commission's proposition is better. It seeks to cure the faults rather than to kill the marriage. The Law Commission eschews the present procedure. People sometimes tell me that they have wanted to stop the divorce from proceeding but arguments in court bring up the bitterness all over again.
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Organisations such as Dads Against Divorce feel that there is too much exaggeration in court and that it creates bitterness and gives reconciliation no chance. As the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon have said, there seem to be two categories of divorce. One is adultery, and the other is the quarrels and misunderstandings which lead to bitterness. Solicitors have to do the best they can for their clients. That is what they are paid for. They sometimes have to heap coals on the bitterness. The present system is barbaric. It should not exist in a civilised society. The Law Commission's report recognises that fact.
The many hours of discussion there have been with deeply sad divorced people compels one to fear that our land—bastion of freedom that it is—is marred by divorce court procedures. I am told that 30 per cent. of the men involved in divorces commit suicide. I have had those figures checked. I have spoken to responsible members of the legal profession involved in divorce law. Those figures are sad. A recent study revealed that a substantial proportion of divorced men and women wished that they had remained married to their former partners. The report backs up 100 per cent. the wisdom of the Law Commission's proposals.
The dispersal of property must also be studied seriously, especially in England. In Scotland there is a much fairer basis for the dispersal of property. I use my words with care, but the procedure is almost criminally unfair in England when it deals with the division of property between spouses. Part of the current procedure is redolent of authoritarianism. I am referring to Rule 77(4) of the Matrimonial Causes Rules 1977. A man can be served with a summons which merely states that he should come to court to show why he should not go to gaol. We do not do that to train robbers, city crooks, vandals or drunken drivers who kill. They do not have to put up with that form of legal threat. I hope that the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon will study that aspect of the procedure. Out of the 90 letters that I have received from Dads Against Divorce, 73 mention that aspect of divorce. Those men have done nothing. They have never been accused of any crime. They are not like me: I was put on "jankers" so often in the Army that I could never forget it. Those are people who have done nothing. British law says, "Come here and tell us why you should not go to gaol". We do not say that to murderers or drunken drivers; but we say it to men involved in divorce. No matter what happens to this important report that kind of provision should be stopped forthwith.
There are other occasions when men are irritated when they appear before a judge for the first time in their lives. It may be that a solicitor has not supplied the other side with all the relevant material. One very well known and superb lawyer said to me, "There are instances in my experience, Lord Molloy, when I have had to stand by and watch an appalling exhibition of terror being imposed through harassment on a person simply because he cannot get on with his wife and is seeking a divorce". These matters have t o he looked at

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very closely indeed. One has to underline the fact that the overwhelming majority of lawyers have experience of these things.
When a person goes to court, sometimes the judge will make a fifth-rate joke at that person's position which is taken up by the press. Judges have no right to indulge in that kind of conduct. I hope that the leaders of the legal profession in this country will see to it that any judge who, to use an ordinary British working class expression, "takes the mick" out of someone brought before him, is removed from the Bench. He is unfit to be a judge. A number of such judges exist. I cannot speak more honestly than that. As I have said, if anyone requires evidence to confirm what I have just said I am quite prepared to provide it.
The commission's report seeks at least to have divorce without anger. It is a remarkably good subject for a debate. I believe that the noble and learned Lord the Lord Chancellor may be primarily responsible for the report. His survey in introducing the debate was magnificent, as was the speech made by my noble friend Lord Mishcon. I am particularly pleased that the report acknowledges that marriage itself becomes a terrible casualty when divorce is entered on. It is a heartbreaking situation for the husband, wife and children. The commission's proposals are that it would like to have mediation rather than acrimony. It is an extremely difficult situation. The subject of divorce is complicated. It is very difficult to find a reasonable solution. This particular Law Commission Report is making a good start so that one day we can perhaps have a more civilised, fair and just situation where divorce is inevitable and children are involved, and that the best that the courts can do for everyone concerned is to the credit of our country.
6.22 p.m.
Baroness Macleod of Borve: My Lords, I have had the pleasure of sitting through the debate this afternoon and hearing brilliant speeches led by my noble and learned friend the Lord Chancellor. I have learnt a very great deal. I do not want to repeat what has been so ably said because it is late and noble Lords would not wish me to go over matters again.
I begin by reminding your Lordships that for the second day this week we are dealing with problems that affect millions of people each year. Yesterday we debated drugs. We were told that in 1988 there were 19,179 addicts known to the Home Office. Today we are dealing with divorce. Although there were 382,000 marriages in 1989 in Great Britain, there were 162,500 divorces. Half the number of divorces occur during the first nine years of marriage, with 28 per cent. occurring between the fourth and ninth years. That means that any children involved are very young. Fifty-two per cent. of divorces affect children; that is over 2,800 children every week.
I was shattered when I read that statistic which I am sure is true. These terrible figures mean that not only are 3 million people in our midst experiencing heartbreak, tragedy, emotional and practical upheaval in their lives from which they will never completely recover, but I sincerely believe also that the children,
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of whatever age, never fully recover from the trauma of losing a parent. I also believe that children are entitled to be brought up by one parent of each sex.
What are we to do? I was one of those who was disappointed that there was no mention in the Queen's Speech of discussing the problems of marriage and divorce within this Session of Parliament. I now understand that there needs to be far more discussion at every level in order to ensure that we get the matter right when we have a new divorce Bill.
I wish to compliment the commission on its report, as did the noble and learned Lord, Lord Simon of Glaisdale, and especially for the understanding way in which it was written. It certainly came across to me that the people involved had a deep understanding not only of what they wanted in the Bill but also of the human relationship between one person and another. I agree that there should be a single ground for divorce. I would prefer a period of two years rather than one year. Proving any of the present five reasons for divorce must lead to more acrimony and bitterness and make the possibility of future relationships even more difficult.
I agree with the value of the passage of time. However, as I said, I would prefer a period of two years. I suggest that if the couple in disagreement have the benefit of helpful conciliation the conciliator should help the court by submitting a report to the judge who eventually makes a decision on the divorce. A conciliator would probably have had more opportunity of finding out what are the true problems and be able to judge and act accordingly. I do not know what proportion of marriages take place in church and registry offices. I say in the presence of the most reverend Primate that more emphasis should be put on the words in the marriage service:
"Those whom God hath joined together let no man put asunder".
The officiating clergy who have the responsibility of seeing couples before conducting the marriage service should refer to those words and remind the young couples (they are usually young) about the problems that they might become involved with. I think that the clergy can do that. It has been suggested that families and schools should also follow that course. I go along with the family suggestion to this extent. If the parents of the couple to be married have good reason for thinking that the marriage may not work then in my view they would be abrogating their responsibilities if they did not inform the young people of those fears.
When two people marry they remain two individuals. In the fullness of time they are bound to have disagreements and quarrels. At the crucial time of their first disagreements the relationship would be much helped if more services were available when they need the friendly advice that they probably cannot get from family or friends. That help would be available from people who have their interests at heart and who are able to give advice. Although such services are necessary and urgent, I do not consider a new body of professional advisers to be necessary. In my view, people who have common sense, patience, broad shoulders, and who are married and have children of

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their own, can and do step in to provide from their own experience the necessary friendly word which can defuse the situation.
An excellent organisation, with which I am glad to hear the noble Lord, Lord Stoddart, is also involved, is Families Need Fathers. That name says exactly what it stands for—families do need fathers. The members of the organisation find that they can help, probably over a pint in the local pub, the many men who have lost not only their wives but their precious children as well. Such men can also lose the roof over their head, their job, their self-esteem and their pride. But after friendly help through this organisation it has been possible in many cases to bring couples satisfactorily together again. We need more unpaid organisations of that kind. Plenty of people in this country have wide experience of family situations and can help in such cases. They can help the young people involved.
We are fortunate in having the well-established Relate organisation to act as mediator and conciliator. These are trained people. In 1989 the organisation helped 55,000 couples and individuals. The organisation needs more money; a point which I draw to the attention of my noble and learned friend the Lord Chancellor. Who does not? On the other hand, as other noble Lords have said, we might be saving not only the future of the parents but also the future of the next generation. That is what is so important. At present, because of the shortage of staff the normal waiting time for an appointment is three months. By that time all is probably lost. I am sure that non-professional listeners can save a large number of marriages. That is the tenor of my few remarks today.
The report is a large and very important document. Although married couples and their problems are the reason for it, we must never forget that the welfare of the children is paramount. It is to the children and their future that legislation must address itself. I have spoken to many people going through a divorce. I have a feeling that they do not realise how vitally important both parents are for the nurturing and upbringing of their children. I can quote the case of a mother who absolutely refuses to give the father of their child access to him. He is now 14 and his parents have been divorced for the past six years. Unknown to the mother the boy goes round the corner and telephones the father once a week. The mother is now very surprised to learn that the child wants to become a submariner, like his father. She wants to know how the boy learnt of that. The boy has now had to tell her that he has been talking to his father behind her back every single week since the divorce.
I conclude with an important quotation from the Guardian of 2nd November 1990:
"Single parents are not the issue; divorce law is not the issue. The issue should be saving marriages. It is so much easier just to shell out blame but, if the government is to do the job that the Law Commission and the Lord Chancellor say needs to be done, if it is serious about a family policy, then marriages have to be supported and irretrievable breakdown prevented wherever possible. And that needs money and a shift in public and political attitudes".
6.35 p.m.
Lord Donaldson of Kingsbridge: My Lords, I found the report so interesting and good that I felt I must come to the House to say I support it. I realise that most of the reasons for supporting it have already been given but I put down my name to speak in case some noble Lords did not agree with it. My evening was saved by the fact that my noble and learned friend Lord Simon of Glaisdale, an old and revered friend, did not agree with it. His reasons for not agreeing with it, although understandable, are irrelevant.
My noble and learned friend said that the report did not deal with the problem of divorce. But it is not meant to deal with why people divorce. It is meant to deal with what happens to people when they feel they have to be divorced, which is an entirely different matter. The report seems to deal with that admirably. Other issues arising from it—issues such as why people are not nicer, why people are not more Christian and why we behave so frightfully badly—are best dealt with not through a Law Commission report but through careful, individual social work.
One or two noble Lords have spoken of the importance of the family. I have always believed that the family is the biological unit in society. For a number of years just after the war I was fortunate enough to work for the Pioneer Health Centre in Peckham, about which the noble and learned Lord and I spoke to each other the other day. We had there a family club. The members were families. Doctors were available, and social workers were fellow members. At the high point there were about 900 families. If something began to go wrong it was observed. It was sometimes possible to assist before a marriage went wrong and do something to put it right. That cannot be done by the law. What the law can do—and what it is trying to do, I think, admirably—is to stop the terrible things so eloquently described by my noble friend Lord Mishcon. He said that the present law does not do what it ought to do. I hope that, whatever else we think, we are in favour of going on with the proposals. The report was splendidly introduced by the noble and learned Lord the Lord Chancellor. He said that the issue was very difficult and that he was being very cautious. I do not think that he should be cautious and I do not see the difficulty. What the report says is clearly right.
I speak on this issue with confidence because I celebrate my 56th wedding anniversary in three weeks' time. So let no one think that I am speaking against marriage. I believe I am correct in saying that the most reverend Primate the Archbishop of York said that we should not have separation by consent. If I am wrong about that, I apologise. I not only believe that we should have separation by consent; I also believe that it should be the only acceptable reason. When consent is not possible, it will require the very elaborate system in the proposed Bill to ensure that nothing goes wrong. In the case of only one person consenting, the matter should be put back for a full year with an insistence upon conciliation, and so on.
My second point is one which has been made repeatedly. I refer to the extremely difficult question of

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conciliation. Bearing in mind the number of people concerned, it must be said that bodies such as Relate, about which we have all heard and which is an extremely good organisation, cannot undertake all the work involved. Such organisations must be given enough money to carry out the work. It is no use saying that many other organisations need money. That is true. But if you want to make such a system work, you must ensure that there are adequate funds. After all, this is a fairly cheap job as social workers are all under paid. It is not difficult to obtain such people to do the work. However, there must be enough money to ensure that the work is done properly.
My third point concerns children under the age of 16 years. I am perfectly clear in my mind about the fact that divorce and separation are far more serious when the children are below the age of 16. I agree with my noble friends on that issue. That is not to say that you should prevent divorce or separation when the children are under 16. A bitter and quarrelling husband and wife are as bad an influence on the children as would be the case with a one-parent family.
It is all a question of degree. If two people really dislike one another—and those are the couples we are now considering—they can make the upbringing of their children worse than would be the case if there was only one parent. Therefore, one should not refuse the possibility of divorce even in such circumstances. However, far more money should be spent upon trying to produce conciliation.
I have relations who separated after their children had reached the age of 16. The children seemed to me to be entirely unaffected by what happened. Indeed, they are very fond of both parents. I do not believe that the experience has hurt them in the least. However, if the process had been carried out when they were four or five years of age, I am quite certain that it would have been ghastly for them. I do not have much else to say, but I should like to stress that I believe that the proposal which has been put forward is a very good one. It is something for which we have all been waiting. I hope that we do not have to wait too long before the legislation is introduced. I also hope that, when we have it, we shall all willingly support it.
The Earl of Longford: My Lords, I wonder whether my noble friend is aware that I came into the House especially to hear his speech. I must tell him that I am most disappointed that he concluded his remarks so soon.
Lord Donaldson of Kingsbridge: My Lords, I very seldom receive such a compliment from my noble friend.
6.43 p.m.
Lord Ashbourne: My Lords, in the introduction to its report the Law Commission begins by saying,
"There is widespread concern about the current prevalence of divorce in this country and the consequences which this can have both for the couple concerned and for their children".
That statement is manifestly correct as we have the highest divorce rate in the European Community and
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the highest rate of increase, while 27 per cent. of all children are born outside marriage. Surely, are those not clear signs of national moral decay?
Against that background, should not the aim of the Law Commission's report have been to buttress the stability of marriage? The Law Commission, however, does not agree; its implied aim is to make divorce "better". As the commission says in paragraph 3.4,
"for our predecessors, it was important that divorce law should send the right messages, to the married and the marrying, about the seriousness of permanence of the commitment involved".
That apparently no longer applies, because the Law Commission now recommends that divorce should be granted on filing a statement of marital breakdown, followed by a period of 12 months, thus reducing the status of marriage to a terminable contract.
A recent public opinion survey shows that there is no great support for change of the present divorce law. The survey found that 84 per cent. of respondents were in favour of,
"divorce for fault; i.e., where one party can show adultery, intolerable behaviour or desertion by the other".
That finding was confirmed by a Gallup poll published in the Daily Telegraph on 11th June 1990 which found that the majority was not in favour of "no-fault divorce". Yet the Law Commission recommends that all consideration of fault should be removed from the divorce and that a decree should be granted on the expiration of one year from making a statement of marital breakdown. I humbly submit that that is a grave mistake, for does there not have to be a moral base—that is, a sense of right and wrong—upon which the stability of family life, the law and the cohesion of society depend?
It is proposed in the report that once a statement of marital breakdown has been lodged with the court, the court should have power to make final orders relating to the financial provision for children and spouses together with property adjustment orders. Once there is a property adjustment order—usually a transfer of the matrimonial home—there is in effect a divorce because the break up of the home is central to the divorce process. It is true that the orders will not usually take effect until after the year of waiting has expired and a decree has been granted. Nevertheless, few marriages will survive the making of the order and the applicant will, in effect, have a divorce on demand.
Moreover, the bitterness of most divorce proceedings will simply be transferred to the issues of custody, financial provision and property adjustment. Great stress is laid in the report on the importance of couples seeking counselling and resolving their disputes by conciliation; but it is doubtful whether both parties will voluntarily seek conciliation. It is not proposed that the law should compel them so to do.
I am worried about the cost of these proposals. At present the vast majority of divorces are granted on affidavit evidence with neither party attending court. However, under the new proposals, the court will have a duty in all cases to hold a preliminary assessment, to monitor progress on the arrangements being made and to make any orders or exercise any of its powers

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which can appropriately be exercised at that time. Will that not impose a heavy additional burden on already overworked county courts?
It is also proposed that the court will have power to extend the period of one year before announcement of the divorce decree, by ordering postponement, if arrangements for the children and financial provision have not been made. Again, that will place a heavy burden on the court. I should like to ask the noble and learned Lord on the Woolsack whether he will be kind enough to inform the House of the estimated cost of the Law Society's proposals which must, I presume, bear heavily on the Government's thinking in these stringent times?
The current ground for divorce is "irretrievable breakdown". That is proved by one or more of five facts; namely, adultery, behaviour, desertion, two years' separation with consent or five years' separation. It is rightly pointed out by the Law Commission that almost three-quarters of all divorces are based either on adultery or behaviour. The noble and learned Lord on the Woolsack gave a lucid exposition of this in his opening speech. Thus, in most cases, the divorce suit commences as fault based. However, legal aid from public funds is generally not granted to defend a divorce suit and that makes it extremely difficult in practice for the suit to be defended by a party, and heard by the court.
That inability by the parties to air their grievances leads to a sense of injustice. The Law Commission's answer to the problem is to remove issues of fault entirely. This is contrary to public opinion and, much more important, contrary to Holy Scripture, which clearly states in many places that marriage is a divine institution. Surely we should be guided by scripture in the formulation of any laws governing the marriage bond or its annulment. An alternative approach might be to enable the parties to have their allegations of fault heard by the new matrimonial procedures court, thus restoring a moral base to the proceedings. I commend this alternative approach to your Lordships.
6.51 p.m.
Lord Robertson of Oakridge: My Lords, it is with great diffidence that I take part in this debate, as I am not a lawyer or a specialist in the field of matrimony. I do so because I am interested in protecting the structure of the family. I welcome the opportunity for us to debate this report. I have studied it with great interest: it makes a good case for the changes it recommends. However, I am a little uneasy that we seem to be moving further away from biblical principles which, as I understand them, allow divorce when there has been serious misconduct.
I have received a number of letters on this subject. My mind is still open, but it is extremely rash to go against biblical principles. I appreciate that the report's proposals would reduce the mud slinging and bitterness between divorcing couples, and that must be good. My worry is that it might be too easy for a husband or wife to initiate divorce proceedings and to set them in motion by making a statement of
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breakdown, possibly in the aftermath of a row or in a fit of depression. Once the process has been set in motion it is difficult to stop.
The main burden of what I want to say tonight is that the report covers only one aspect of the problem of marriage in our society. Indeed it sets out to deal with the symptoms rather than the disease itself. This is not a criticism of the report: I am just stating a fact. Our main aim should be to increase the number of successful marriages and thereby decrease the number of divorces. I should like to offer your Lordships my thoughts on this subject under three headings: the need to enhance the status of marriage; the need to help people to prepare for marriage; and the need to sustain existing marriages.
As regards the status of marriage, it is plain that marriage is under constant attack. In our society we are often encouraged to get as much pleasure as possible out of life, regardless of the effects on others. Reflecting this attitude, the media tend to portray marriage as dull and frustrating. Adultery, on the other hand, is often presented as normal and exciting. We in Parliament, and especially the Government, can do much to influence attitudes towards marriage. However, it is not enough for us to pay lip service to it, if the laws we pass are against it.
For example, the ending of discrimination against married couples for tax relief on mortgages was to be welcomed but when we considered the embryo Bill last year we made a decision which I feel was to be deplored. It did not restrict fertility treatments such as IVF and AID to married couples. In effect, we agreed to allocate money and resources to the bringing into the world of children with possibly only one parent.
Next, the need for marriage preparation. Only a very small minority of couples are able to receive help in preparing for marriage. Many do not get the chance to consider thoroughly the issues involved in a marriage relationship, such as how to manage finances and to avoid getting into debt. They should also consider housing, the sexual relationship, the bringing up of children and, perhaps above all, the need to communicate with each other openly and honestly at all times. I believe that the churches could do more in this respect, and particularly if the hard-pressed clergy were to enlist the experienced laity to help them. I would ask the Government to see if more could be done in schools and whether there is scope for increasing the availability of pre-marital preparation courses.
Thirdly, the need to sustain marriages. In that respect the early years are of great importance. Over the last two years the charity Care for the Family, with which I am associated as a trustee of the parent organisation, Care, has run seminars under the title Marriage under Pressure. Those seminars have been attended by a cumulative total of 10,000 people, and they have disclosed a huge yearning among couples to improve their marriages and to prevent serious difficulties arising. I would ask the Government to review whether they are doing everything possible to encourage initiatives such as these seminars. Furthermore, if the recommendations of the report are carried out there will have to be an expansion of

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counselling and conciliation services. I should like to suggest that counselling is made available to married couples before trouble arises as well as after.
Marriage is a God-given institution which is an essential part of any well-ordered society, and it deserves our fullest support. Children have a right, second only to the right to life, to have two parents, committed by marriage to each other and to their children. Therefore, at the same time as we try to improve the procedure for divorce let us do all we can to enhance the status of marriage, to help to prepare people for it and to sustain those marriages which are in existence. The possible benefits are immense.
6.56 p.m.
Lord Coleraine: My Lords, I asked to speak just before the principal speakers who are winding up the debate this evening because I wanted to listen before I spoke. I have done so and I have heard some notable speeches. Only time will tell whether I have profited from what I have heard.
I have had some practice as an English divorce lawyer although I certainly would not begin to say that my practice matched those of the noble and learned Lord, Lord Simon, the noble Lord, Lord Mishcon, and the noble Lord, Lord Meston, who is shortly to speak. What was significant about my practice was that it ceased more than 20 years ago. Under the fault-based system, I used to take undefended divorces and act as standby lawyer in my firm for defended divorces. I believe that the work of the divorce lawyer is of prime importance to divorce and to marriage.
I ceased practising that kind of law when the new legislation came in. I said then that I would not touch it again, and I have not done so. It seemed to me then and it seems to me now that the concept of irretrievable breakdown is a complete fudge. I very much suspect that if it is carried forward into the future, the fudge will be replicated.
The history of divorce law over the past 25 years has been deplorable. I should like to feel that it is just a deplorable interlude, but I very much doubt it. I doubt whether Law Commission Report No. 192 will necessarily bring the interlude to an end. I think we are unrealistic if we expect too much from the Law Commission's report, given that it was the predecessors of the Law Commissioners who have reported now whose report 22 years ago was in part responsible for the present mess. I think it is questionable whether divorce law and its reform is a law reform which properly ought to be handed to the Law Commission to look at. I doubt whether it should be within its remit.
One of the problems is that when a Law Commission report is received—and I think I detect some indications that this applies now —people listen to it with their critical faculties to a large extent suspended. In my opinion, a more useful report would have resulted from an inquiry whose members included representatives of various shades of opinion and disciplines from the churches and other organisations involved in the marriage field. That
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would have given the possibility of dissent within the report which would have been useful. I give full credit to the manner in which the Law Commission in its report has indicated where dissent arises. But that is not as good as allowing those views to be expressed and to form part of the decision-making process itself. What we needed was a less monolithic report.
I should like to join other noble Lords who have agreed with this aspect of the report supporting the concept of divorce as a process over time. That is something that should be brought into the divorce law, because it should be possible for parties who are divorcing to remain together while the divorce is going on, both to aid the divorce process and to increase the possibility of reconciliation taking place.
In that respect, I was particularly struck by the words of the noble Lord, Lord Mishcon, who drew attention to the effect of the present system on people who cannot just part, cannot just move out. The husband cannot just leave the wife and the only way that this problem can be resolved is by ouster proceedings, which are a deplorable side aspect to the present state of the law.
The report identifies two basic objectives of a "good" divorce law. The commission sees its objectives as having been set out by its predecessors in their 1966 paper and still commanding widespread support. I agree with the Law Commission. The objectives are, first, the support of marriages which have a chance of survival; and, secondly, a decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead.
But I believe it is also a proper concern of the law, and a proper objective in a good divorce law, that there should be a good marriage law if only to make divorce less likely. I do not agree with the views expressed by the noble Lord, Lord McGregor, which I understand to be that by changing the divorce laws you cannot make parties stay together. I believe that that is against the tenor of the commission's report. The report is written on the basis that one of the effects of a good divorce law will be to make divorce less likely, and that is one of the respects in which I am striving in my speech to support the views of the commission.
In paragraph 3.4 of the report I read,
"For some of our respondents, as for our predecessors, it was important that divorce law should send the right messages, to the married and the marrying, about the seriousness and permanence of the commitment involved".
I tie that comment up with my suggestion that a good divorce law deserves a good marriage law. Helen Oppenheimer is associated with that view, and she was a member of the then Archbishop of Canterbury's group which produced Putting Asunder, as is the national campaign for the family trust. This is a view which seems to be not stressed enough in the report.
It is on that basis that I view with very considerable alarm the report's proposal that marriages should be capable of being ended by one party, without the consent of the other, almost from the moment of marriage. The significance of that, which does not

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seem to have been grasped universally, is that the report is misnamed The Ground for Divorce. What the report should be called is "Divorce without Grounds".
The most reverend Primate who has left us, as he said he would, missed that point. He strained after the gnat of divorce by consent, but, so far as I can see, completely swallowed unilateral divorce. If this is carried through into legislation, it is carrying serial bigamy to the extreme. I should certainly have thought that anyone who was prepared to act under this kind of legislation might, in the interests of the family and the children of the family —and I put this not entirely frivolously—well be served by bigamy itself.
Lord Donaldson of Kingsbridge: My Lords, if I may interrupt, is the noble Lord saying that without the consent of both parties divorce should be impossible? That is what I understood him to say.
Lord Coleraine: No, my Lords. Under the present law a divorce without the consent of both parties is possible after, I think, five years.
Lord Donaldson of Kingsbridge: My Lords, under the new law.
Lord Coleraine: My Lords, we are not talking about new law. We are talking about the Law Commission's proposals, which I believe are that, at any time after the first year of marriage, any party can say that the marriage has broken down and in a year will be divorced. That is not satisfactory.
If that is what we are to have by way of divorce law—and I hope that we do not have it—it is the kind of law which reminds me of Groucho Marx, who said that any club which would have him as a member would not be worth joining. Any marriage based on this kind of law would not be worth taking on.
7.6 p.m.
Lord Meston: My Lords, as has been said, the Law Commission has produced an impressive and compelling report, even by its own very high standards, and I found it very hard to disagree with any of it, whether in its analysis of the past and of the present, or in its suggestions for the future. I certainly had my critical faculties positively bristling when I read it; but every argument that I mentally put up against any particular proposition in the report, I found knocked out in the next sentence or two. It is also good to see how the Law Commission has built on the Booth Committee's report of 1985.
The present law of divorce enacted in 1969 was a compromise between old fault-based divorce law and the desire to end irretrievably broken marriages. For a few lucrative if not happy years thereafter counsel were still employed to draft behaviour petitions. The trick was, and still is, to get as many opprobrious adjectives and adverbs into eight or so sub-paragraphs.
However, since 1969 there has been procedural tinkering, such that most divorcing people have their marriages now dissolved by a judge collectively pronouncing decrees at the start of the day's business, in a courtroom probably containing only himself and
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the clerk who has read out a list of names of those to be divorced. I do not believe that that can do anything to assuage the sense of injustice to which the most reverend Primate referred. If I may in his absence mention the point to which he referred in the commission's report, about fault sometimes being retained for ancillary cases involving children and finance, I do not understand the Law Commission to suggest any change to the existing practice in that respect.
Fault is now confined to a few cases involving children and finance because the law has come to recognise the reality. The unimpeachable parent was one of those mythical figures like the man on the Clapham omnibus; and certainly in the Family Division nowadays the unimpeachable parent has long since been abandoned as an ideal.
Likewise, in financial and property cases conduct is very rarely allowed to be raised, for the very good reason that it is almost impossible to convert misconduct into financial terms in a fair way. How do you quantify the effect of being hit over the head with a frying pan every Friday night for five years as opposed to being hit over the head twice a week for 10 years? It is not possible, and it is unrealistic for the courts to attempt to do so.
It is certainly correct, as the report says at paragraph 3.46, that it is impossible to characterise any particular divorce system as too easy or too difficult. I do not believe that by making divorce less painful you are necessarily making it easier. For some the existing system probably is too easy and too quick, and it is ironic, with respect to the noble Lord, Lord Robertson of Oakridge, that it is the fault-based divorce petitions under our existing system that go through the quickest and are the more difficult to stop.
For other people it is undoubtedly too hard and too difficult to get a divorce, especially if they are compelled to leave home and stay separate for five years before they can divorce and resolve their finances and property with some finality. Faced with that prospect the temptation is to cobble together a behaviour petition—and that temptation is almost overwhelming—that will undoubtedly contain allegations which are either trivial or exaggerated, or a mixture of both. That produces a system that, were A. P. Herbert alive today, he would undoubtedly parody as he parodied the old system in his book Holy Deadlock.
There is in paragraph 2.11 of the report an echo of the remarks of A. P. Herbert, whose Mr. Justice Wool said:
"The English law of divorce, by its insanity, encourages lying. Everyone who comes into this court is presumed to be lying until the contrary is shown."
Out of deference to the noble and learned Lord I should complete the quotation of that learned, if fictitious, judge, who went on to say:
"In Scotland the law encourages the parties to tell the truth."
That said, I do not feel qualified to follow the noble Lords, Lord Molloy and Lord Stoddart of Swindon, in praising the Scottish system so far as it concerns

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property and finance. I am not qualified to do so. I know how the English system works; and for every half-a-dozen people who say that it is unfair on husbands, I can think of half a dozen who will say that it is unfair on wives, but I certainly know that given a choice a husband who can petition, or be divorced, in England or in Scotland will head for Edinburgh.
The defended divorce is a time-consuming, expensive and damaging anachronism. An intransigent or insensitive husband—and it is not always a husband—unwilling to face the financial consequences of divorce and the reality that the marriage is in trouble, if not over, can defend a petition. Strictly speaking, he may be perfectly entitled to do so and he may succeed, particularly if the allegations of misbehaviour are weak, badly pleaded, or, conversely, exaggerated. I have a recent example of a case of that sort in which the minor children were recruited as innocent spies on one side and the adult children were recruited as witnesses on the other side. It was almost too distressing to contemplate.
The commission report at page 5 cites a number of reported cases in which the courts have been compelled to dismiss behaviour petitions. I have an uncomfortable personal recollection of one of them, and even now find it hard to think of the misery still being endured for all I know by the family forced to remain together in two camps under one small roof until the five-year period has elapsed. The children pass their father on the stairs not speaking to him, and he not speaking to them; and that is a situation that will go on year in year out until the divorce court can intervene.
The assets, which are hard earned and barely adequate to keep one household let alone two, should not be squandered in the almost invariably destructive and negative exercise of a defended divorce. Not only are they destructive, they occupy the time of the courts who should be dealing with more deserving cases.
I suggest that the Law Commission was right in preserving irretrievable breakdown as the sole ground for divorce, but doing away with vestiges of the old law. That said, I do not entirely follow the noble Lord, Lord Mishcon, into suggesting that there should be a possibility of shorter periods for the divorce process in exceptional cases. On that I find paragraph 5.6 of the Law Commission report persuasive. The noble Lord referred to cases of exceptional hardship, and I think by inference of exceptional depravity, which to my mind had echoes of the pre-1984 law where you had to show one or other of those two things to be enabled then to have leave to present a petition within three years of the marriage. For my part I would find that a retrograde step.
Lord Mishcon: My Lords, the noble Lord is very kind to give way. Would he agree that in one of the cases that I cited; namely, where another stable relationship outside the marriage has occurred and a child is about to be born, the court would have no discretion even though the children had been looked after and financial arrangements agreed? The court would have no discretion but to see the child born out
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of wedlock, whereas if they had the discretion, they could see that the child of the other relationship is born within wedlock because the parties could then marry.
Lord Meston: My Lords, I see the force of that argument. One also sees the converse argument that the desire to remarry can in itself become a blackmailing weapon, or an excuse for a blackmail. I put it in exaggerated terms. Perhaps those considerations are less pressing in view of the recently-enacted changes on the status of children born out of wedlock, and the potential for legitimising a child by a marriage after that child has been born. I certainly do not have hard views on that aspect of it. What I seek to avoid in that area is a return to fault-based examination of exceptional hardship or exceptional depravity, which I do not think would be helpful.
I also take the view that it is correct that a change in the law alone will not be enough to change the realities of human behaviour, or the pain of marriage breakdown. Divorce will remain prevalent and people will still want to fight yesterday's battles. Contrary to the view of some, most lawyers—certainly most responsible ones—will try hard to keep their clients out of court, and to save them the cost, the time, and the acrimony of contested proceedings as well as the uncertainty of what the court may decide.
The Law Commission seems realistically to recognise that if a couple could agree about everything they probably would not be divorcing in the first place. In some cases the comparative ease of divorce itself increases the desire for a cathartic day in court over something, whether it be the children or the house. Almost every matrimonial lawyer you meet has his, or her, story about three hours negotiating about the destination of the toast rack after everything else had been agreed.
If changes of substance and not just of form are to be brought about, they will only come with the best use being made of the period of a year recommended by the Law Commission. It is right that financial matters and matters involving the children should no longer be seen as ancillary to the divorce but as central to the process of rearranging the family in the best way for the future. The parties will need a structured timetable; matters should not be allowed to drift. People who do not want to reveal their assets should not be allowed to play for time. With respect to the noble Lord, Lord Molloy, as I understood it, that is the true function of Rule 77(4) of the Matrimonial Causes Rules.
Lord Molloy: My Lords, the aspect that I quoted arose because at the first hearing only the lawyers from one side appeared. The solicitor and barrister on the other side did not appear at all. The matter went on and on and the man had no idea about the law. In my judgment he was greatly let down by the offending lawyers. The solicitor and the barrister who failed to turn up ought to be brought before a disciplinary board of the legal profession. Does the noble Lord agree?
Lord Meston: My Lords, that is entirely another matter. I shall not go into the merits of the case, the facts of which I find difficult to comprehend.
Reference has been made to whether the period of a year is adequate. One has to face the fact that a year is a long time in the life of a child. Parties will need to be encouraged to reach agreements with which they can live, both in the short and the long term. One of the problems of the present system is that divorced people take too much unfinished business into subsequent marriages, imposing strain on those marriages and/or leading new spouses to feel that they must take sides. However, a new spouse can, in the best of worlds, be a helpful influence.
Like all noble Lords, I welcome the emphasis on conciliation. I wish to raise a few points of caution as did the noble Lord, Lord Mishcon. The first is that the procedures must enable the conciliator to be properly informed in order to have a clear view of the issues. Secondly, the imperative to agree must not overbear the weaker party—usually the wife—to reach a solution against her better interests. Thirdly—and this point was made forcibly by the noble Lord, Lord Mishcon—the facilities and funding must be available if conciliation is to achieve everything we wish.
I do not quite agree with the noble Lord's description of how conciliation works at present, although I suspect he was referring to Somerset House. I agree that the corridor there (which is barely adequate for the professionals who have to conduct other business) is not the best place for conciliation appointments for children. I have heard similar stories about the room in which the children have to wait. I have attended conciliation appointments at Somerset House and my understanding is that the system works well. The welfare officer is present at the outset rather than after a time. Given the constraints, the system can work extremely well. Conciliation is not a panacea. I do not apologise for mentioning that we must be sure not to lose the expertise of the Family Division judge and district judges.
I welcome the thought given to the need to balance the pressures which may affect the bargaining position of the parties in the period of a year. Quite often, parties complain that they are being blackmailed. It is right that a widow's pension rights should be considered before the marriage is dissolved. It is equally desirable that one party should not be allowed to use the other's desire to divorce and remarry to extract coo high a price in financial terms.
I also welcome the new proposals for more flexible financial and property adjustment powers. I do not wish to enter into technicalities at this stage. I should like to see an express power to make interim lump sums, for example, so that people can put down a deposit on a new house. That can break a log jam in rehousing, particularly when the property market is stagnant. I also hope that the proposed power to vary property adjustment may be useful; but it should be used sparingly, not storing up uncertainties and potential future litigation.
Finally, the Law Commission has produced a draft Bill. We understand that it may be some time before it comes before Parliament. It will quite properly
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require important subordinate legislation. In that case, I hope that consideration will be given to producing draft rules before the Bill is presented to Parliament.
I do not believe that we can put the clock back. I respect the views of those who want a fault-based system, but putting divorce off until the children have reached 16 can be a recipe for misery. If one considers something more civilised, choosing between a statement that one's marriage has broken down irretrievably or the old system which involved trips to Brighton hotels and inquiry agents lurking in the bushes, I know which I prefer.
We shall not arrest the trend of marriage breakdown by mere legislation. I prefer to consider the subject more optimistically. Marriage remains popular; two-thirds of marriages do not end in divorce. In part, divorce is the product of unrealistically high expectations of marriage. This is not confined to young people; but, as the noble Lord, Lord Molloy, stressed, it applies to more elderly couples who may forfeit pension rights and have to sell up the homes which they had intended for their retirement.
Like the noble Lords, Lord Mishcon, and Lord Stoddart of Swindon, I hope that as part of this process we should consider education before marriage which will enable couples, young and old, to examine the realities and responsibilities that they are taking on.
7.26 p.m.
The Lord Chancellor: My Lords, I am grateful to all noble Lords who have taken part in the debate. Although I do not usually go in for prophecy, I believed that the views to be expressed would be somewhat varied, and they have been. I assure noble Lords who have spoken that all they have said will be taken into account in considering what we should do on this important matter.
The noble Lord, Lord Donaldson of Kingsbridge, advises that we should go ahead quickly. Caution is important if we are to achieve the kind of consensus on the matter which is desirable. It may be necessary to have a fuller understanding of some aspects of the Law Commission's report before that consensus is fully achieved. With its consideration of these matters, the debate has greatly assisted us.
A number of important suggestions have been made for variation of the Law Commission's proposals. The noble Lord, Lord Mishcon, spoke of a matter to which the noble Lord, Lord Meston, referred. He wanted exemption from the 12-month period in a defined class of case to make it subject to judicial discretion, perhaps be limited in some way, or a similar provision. He instanced the case of a new stable relationship with, as a result, a child on the way. That should be considered. The Law Commission examined the proposal but one of the difficulties is that one does not want that to be a route for obtaining a quick divorce because it would put a premium on such behaviour. On the other hand, the suggestion is worthy of careful consideration.

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My noble friend Lady Macleod of Borve would like the 12-month period extended to two years. The Law Commission considered that but decided that it was a difficult judgment. It came down, for the reasons it had expressed, in favour of one year. The most reverend Primate the Archbishop of York wanted greater powers to postpone divorce. He was worried that a power to make orders about children and finances during the 12-month period might undermine the purpose of the cooling off period. I also see the force of that. Another way of looking at it is this. If we are to face people with the consequences of the divorce—which is one of the purposes of the 12-month period—the more defined those consequences are, the more people will understand them.
One of the consequences of divorce which is often not taken into account until it is too late is the effect on the financial position of the parties. If that could be brought home to them in a concrete way it might just be enough to turn them back to one another again. I believe the noble Lord, Lord Molloy, referred to the fact that some people who have obtained a divorce have lived to regret it. If it is at all possible for couples to repent, one hopes that that happens sufficiently early to remedy the situation rather than after a divorce has been obtained.
My noble and learned friend Lord Simon of Glaisdale has great experience in these matters. He made a number of suggestions. He suggested that a rule could be passed to prevent divorce occurring when couples had children under 16. One has to remember that it is the breakdown of the relationship rather than the divorce itself which is harmful to the children. I merely express my own view on this matter, but I personally take the view that it is vitally important that any divorce law should put the children first. Divorce laws should aim to protect the children from harm of the kind that we know they can suffer during a divorce. The thought behind the suggestion of my noble and learned friend is one that commends itself to me, but, I regret that it does not appear at the moment that the provision would necessarily have the result that my noble and learned friend had in mind.
In commenting on various points made in the debate I should point out that that does not mean that I shall not consider them further. I shall obviously want to give a considerable degree of thought to all the proposals that have been made. A number of noble Lords mentioned the financial provisions involved in divorce. Some noble Lords gave particular praise to the Scottish system in this connection. Your Lordships will appreciate that it would not be particularly appropriate for me to comment on that. However, I remind the House that part of the programme for the review of family law that we have in mind will consider those provisions. Some of those provisions are considered in the Law Commission's report.
A number of noble Lords have mentioned the organisation and funding of conciliation and counselling procedures. Obviously those matters must
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play a part in any arrangement that is to be suitable for divorce proceedings. It is obvious that when we consider our position on this matter we shall keep those considerations in mind. My noble friend Lord Ashbourne asked me whether those provisions had been costed. I can tell my noble friend that that has not yet been done. I do not wish to do that until we obtain a much clearer idea of the proposals that we intend to put forward. At the moment the proposals are those of the Law Commission. They have been set out in great detail in the report and they are accompanied by a draft Bill, but they are still subject to detailed consideration before any further progress is made as regards legislation.
My noble friend Lord Coleraine doubted whether the Law Commission was the best organisation to conduct the review we have been discussing. I believe that over the years the Law Commission has developed considerable expertise in analysing issues where people hold different points of view. The report thoroughly analyses the responses to the consultation and indicates the areas of disagreement and the questions that have been raised. While there are various other ways in which the review could be conducted, the Law Commission's report indicates a structured and generally acceptable way of analysing these matters. Holding a debate on such matters is extremely helpful, and this debate has been so. If and when legislation is proposed further consideration will have to be given to these matters and ultimately Parliament will have to consider them with great care.
A number of points have been made which are not immediately directed to the report. The noble Lord, Lord McGregor of Durris, raised the question of the arrangements for, and the organisation of, a service for supporting the courts. One has to be careful in this area and not try to aim too high at one goal. We have been able to make considerable progress in connection with the arrangements for the implementation of the Children Act in obtaining co-operation across departments and across disciplines in respect of the training of magistrates and judges with other professionals. We have arranged for this training to be carried out in groups so that the different professionals can see the point of view of fellow professionals in other disciplines. We have also made provision for the setting up of committees to monitor these arrangements and to report to Ministers who are concerned with these matters.
We have to handle existing cases with the existing system but try to improve it at the same time. However, in the nature of things the resources that are available to us are necessarily limited. I hope that the way forward as stated in the Children Act will prove successful. I believe that way is to take steps that we can accomplish and for which the resources can be provided. We should assess the success of those steps. If they are reasonably successful, we can then move further forward. We are embarked upon that process and I hope it will be successful.
Those are the main matters to which I wish to direct the attention of your Lordships. I may be repeating myself unnecessarily but I wish to make it absolutely

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plain that the mere fact that I have commented on a proposal does not mean that I do not consider it worthy of further consideration. We certainly wish to consider these matters with great deliberation. The noble Lord, Lord Meston, referred to some detailed points. We are anxious to receive opinions on such detailed points. I intend to have public consultation on these matters and receive views on the reports that have been written.
As I sought to emphasise at the outset, these are not proposals for divorce by consent. The courts have a power —the Law Commission proposes that this power should continue—to refuse a decree altogether in the event of grave financial or other hardship. That is certainly inconsistent with the idea of divorce by consent. The courts retain that power, though consideration may be given to the precise terms in which that power should be expressed. The report contains some interesting comments on the way that power may impinge on, for example, difficulties in certain communities. However, the fact that that power of the courts is reserved makes it clear that we are not talking about divorce by consent.
As I understand the position, the Law Commission is aiming at a situation in which notification of breakdown would be given. That is the first stage. Then the year that has been referred to is devoted to ascertaining whether that breakdown is irretrievable. The purpose of the year is to try to retrieve the marriage, if possible, and to put it back on its proper course. I believe that my noble and learned friend Lord Simon of Glaisdale was possibly not giving full effect to the aspirations of the Law Commission in saying that it did not even pay lip service to the idea of a lifelong marriage. It set out as one of the objectives of a good divorce law the saving of the marriage. A marriage that is saved, presuming that it is saved for long enough, will be terminated only by the death of one of the parties.
Lord Mishcon: My Lords, the noble and learned Lord is most kind to give way. I know that on important matters of this nature he wishes to be correctly reported. If I am wrong he will reprimand me. He has just talked about the Law Commission, divorce by consent, and not permitting divorce. Does he not mean that the court would have the power to refuse divorce which is requested unilaterally?
The Lord Chancellor: My Lords, it covers that aspect also. I wanted to answer the point about divorce by consent. The Law Commission proposed that the court should have power to postpone the divorce or to refuse divorce if there would be grave financial or other hardship. The noble Lord may think that it would be very unusual for the court to exercise that power if both parties consented. It would be very hard for the court to see hardship which was not seen by one or other of the parties. I am simply pointing out that the principle behind the proposal recognises what the most reverend Primate recognised; namely, that the public have an interest in these matters and the ultimate power of the court is a recognition of that interest.
Lord Simon of Glaisdale: My Lords, I am sorry to interrupt my noble and learned friend. However, is he right in saying that the limited power of the court to withhold a divorce in cases of exceptional hardship is inconsistent with divorce by consent? If there is divorce by consent, presumably the parties who have consented are content with the arrangement. Is it not a very limited exception to the fact that the proposal allows divorce at the unilateral volition of one party?
The Lord Chancellor: My Lords, it certainly has that effect. It prevents it being said that the proposals have the effect of allowing divorce at the insistence of one party against the will of the other. That is the purpose. However, the most reverend Primate indicated—and the same point arose in the speech of my noble friend Lord Ashbourne—that the recognition that the court, on behalf of the public, has an interest in the marriage is deeper than the idea of a private contract. The interest of the court in the matter is inconsistent with the view that there is a private contract which the parties can cancel at their own will.
The other point in that connection is that the time applies whatever the attitude of the parties, subject to consideration of the proposal of the noble Lord, Lord Mishcon.
I accept that if both parties consent, the idea that the court would find grave hardship is a fanciful one, but it is the theory that I seek to adduce now.
On Question, Motion agreed to.

Corporate Governance
7.43 p.m.
Lord Williams of Elvel Lord Williams of Elvel rose to ask Her Majesty's Government what are their current views on corporate governance.
The noble Lord said: My Lords, I have to apologise to your Lordships for the fact that this Question, which is of great importance, arises at a late hour. I had hoped that it would be debated earlier. Indeed, when it was understood that the debate that has just terminated was going on for rather longer than expected there was a question as to whether I should take the Question off the Order Paper. In the end I decided to keep it on the Order Paper because the Minister has made an effort, in cancelling a number of appointments and obligations, to answer the Question. I felt that it would be discourteous to the noble Lord, Lord Hesketh, if I did not pursue the matter.
I cannot say that I am speaking to a full House. Indeed, looking around me I see that there are very few noble Lords in attendance, apart from those who will participate in this short debate. That is rather astonishing. The question of corporate governance is of great importance to many noble Lords who hold positions of distinction in companies in this country. I remember that when the Bill relating to audit committees came before your Lordships—a Bill which was taken through another place by the late Sir Brandon Rhys Williams—I spoke in favour of it from this Dispatch Box. A phalanx of noble Lords on the Benches opposite—chairmen of companies, finance

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directors of companies—spoke against the Bill, which was designed to make audit committees statutory. I cannot see any of those noble Lords opposite today when we are debating the general considerations of corporate governance.
It is sad that we should be deprived of the benefit of the experience of noble Lords opposite who come to this House perhaps because they have persuaded their shareholders to contribute a great many funds to the Conservative Party—I know not why they come—when such matters are before your Lordships.
The Question originates from a statement made by Mr. John Redwood, who I believe is a Minister of State at the Department of Trade and Industry, on 7th December 1990. The statement is headed "Corporate Governance". Mr. Redwood said in that statement—and I believe he is quite right—that,
"The quality and style of corporate governance is now moving high up the agenda".
As we read through the statement we see that some very interesting views were put forward by the Minister. It seemed to me that your Lordships would be interested in exploring exactly what the Minister meant by those interesting views.
I therefore compiled a list of questions that I wished to raise in today's debate, which I passed to the Government Whips' Office. I understand that they may have lost it or that the department lost it. I understand that in the course of time the list filtered through to the office of the Minister, and the Minister is prepared to reply. I wish to make it clear that I have given prior notice—at least 48 hours—of the questions that I shall ask. If the Government do not have a response to those questions it is not because they come out of the blue.
The Redwood statement—if I can use that shorthand expression—includes a number of rather odd expressions. I seek first to discover what is what is meant by the expression used by Mr. Redwood that,
"A recent survey shows that the UK is top of the league in the performance of European major companies".
What performance? Are UK companies better in any respect—in terms of profitability or of productivity—than major European companies?
My second question relates to the statement made by Mr. Redwood when talking about corporate cleanliness and deterrence of fraud that,
"Some of the dangers could be headed off if all companies had a sensibly structured board".
What is meant by "a sensibly structured board"? What view do the Government take about what is a sensibly structured board and what is an insensibly structured board?
Thirdly, Mr. Redwood says in his statement that,
"A non-executive chairman has a special duty to look after shareholders' interests".
I contend that a non-executive chairman—whatever that may mean, and we shall come to that—has exactly the same duties as all other directors of a company. Not least he has a responsibility, a special duty, as do all directors under Section 309 of the Companies Act 1985, and I quote from that Act,
"to have regard in the performance of their functions"—
these are the functions of the directors of a company—
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"[to] the interests of the company's employees in general, as well as the interests of its members".
So, by any reasonable interpretation of the Companies Act, the chairman has an obligation to look after the employees' interests as well as the interests of the shareholders.
On reading Mr. Redwood's statement I ask myself: by what virtue can a Minister claim that a non-executive chairman has a special duty to have regard to one class of people rather than another class of people when both classes in the Companies Act, under legislation passed by this Parliament, comprise an obligation for directors? Why is a Minister preaching what seems to me to be illegality?
The statement goes on:
"The Government is keen to encourage the appointment of many more truly independent non-executive directors".
What is a "truly independent non-executive director"? There is no definition of a non-executive director in the Companies Act. During the passage of the Companies Bill 1989 we tried, when it was before this House, to introduce a definition, but the Government set their face against it. There is no definition. So we do not know what a non-executive director is, other than possibly a former Conservative Cabinet Minister. And we do not know what "truly independent" means. Is "truly independent" a non-executive director who has no relationship at all with the chairman and who can resign freely at his own discretion when something goes wrong to which he objects? If so, I should be grateful if the noble Lord can point out to me any non-executive director who is truly independent in that sense.
My fifth question relates to the statement by Mr. Redwood that,
"The presence of non-executives on a company board may well scale down the more outrageous ambitions of chief executives and chairmen".
What "outrageous ambitions" had Mr. Redwood in mind when he made that statement? Are those non-executive chairmen—because the statement clearly distinguishes between chief executives and chairmen—also imbued with "outrageous ambitions"?
My sixth question relates to the statement that,
"Non-executive directors should ask questions of company finance directors as to how long term their funding is".
Do the Government see that as a specific duty for non-executives? After all, I should have thought that it was a specific duty on all directors to determine for themselves and make a judgment of the gearing in the balance sheet and the finances of the company. That is not a special non-executive function.
My seventh question relates to the expression "evidence is rising". I apologise for the English of that expression but it is the language of the Minister, Mr. Redwood. I did not know that evidence ever rose. He says that,
"evidence is rising that except in the very short term takeovers can all too often damage the wealth of shareholders of the bidding company rather than improving it".

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The evidence has been there for a long time. It was there in the Green Paper of 1979 and was repeated in the DTI up-date on merger policy in 1986. There is no question of evidence rising. We all know what has happened.
My last question relates to the statement made by Mr. Redwood that,
"The UK stock market usually gives the highest ratings and the best support to those companies which invest successfully in the future and in research and development".
What is the evidence for that statement? There is no evidence for it. On the contrary the market gives the highest ratings to takeover targets in anticipation of bids. That is the fact of the matter. There is no evidence.
I do not know the status of the statement. It is a ministerial statement. It was not made in Parliament but issued as a DTI press release. I do not know whether it has been debated in another place. It has certainly not been debated in this Chamber. It raises all kinds of issues which may simply be irresponsible. Maybe the Government have a considered view. I believe that the noble Lord, Lord Ezra, wishes to speak about non-executive directors and how that may dovetail into any European arrangements which may be made in the future. None of that is covered in this important statement on corporate governance. Is it not right that, if there is to be a government statement on this tremendously important matter, it should be properly prepared, properly debated in both Houses of Parliament and properly considered by all those noble Lords who are absent tonight?
7.58 p.m.
Lord Ezra: My Lords, I am very pleased indeed that the noble Lord, Lord Williams, should have raised this Question for debate. Like him, I am extremely surprised that so few Members of your Lordships' House are present to debate it. The reason may be the phraseology—the somewhat grandiloquent phrase "corporate governance". Corporate governance means the framework in which boards conduct the business of companies, particularly public limited companies.
There is not the slightest doubt of the great importance of this issue. I should like to take the matter rather more widely than has the noble Lord, Lord Williams, who concentrated on the important press notice recently put out by the Government. I shall come to a number of the specific issues that he raised in due course.
First, I believe that it is necessary to consider for a moment the background against which companies have had to operate, particularly in the past decade. It has been a decade of dramatic changes in atmosphere and the circumstances in which companies have had to operate. In the early 1980s there was undoubtedly a dominance of takeovers, sometimes on a massive scale. In the USA in particular that gave rise to a reappraisal of the position of management in relation to shareholders. The name of T. Boone Pickens, for example, became a name that struck horror in the boardrooms of many large American corporations. As a result of the rush for growth, takeovers, and
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defences against takeovers, many companies became over-borrowed. That happened not only in the United States; it was a phenomenon in this country as well. In due course the reaction set in. It was sparked off by the Stock Market crash in 1987. That was followed by a number of important company failures and accompanied by a serious weakness in the US banking system which was the other side of the corporate over-borrowing coin.
During that period of turbulent change in the circumstances in which companies had to operate, it is not surprising that serious attention was given to the way in which companies should operate and their structures should be organised. Many important bodies began to study the issue; in particular, Pro-NED—the body sponsored by the Bank of England and other organisations in the City and industry which is specifically concerned with the role of non-executive directors—the Stock Exchange, the Institute of Directors, the CBI, the Institutional Shareholders' Committee, the National Association of Pension Funds and the Association of British Insurers. They are only a few of the organisations which have examined the issue. While all that intensive study was taking place on this side of the Channel, on the other side of the Channel in Brussels there continued to be an attempt to find a way of harmonising European company structures. There are the latest amended proposals for the Fifth Directive on which the Government have been consulting all interested parties.
I believe that beginning to emerge from the study is the concept of a code of practice, either of a voluntary or legislative nature, for the conduct of the affairs of quoted companies. The document which most encapsulates that was issued by Pro-NED in April 1987 on the role of non-executive directors. Essentially, the problem that we are talking about is the relationship on boards between executive and non-executive directors. In Britain that has always been vaguely defined. The noble Lord, Lord Williams, is right in saying that in the whole corpus of the Companies Act there is no single reference to the existence of non-executive directors; all directors are considered to be equal.
As a result of all the studies and recommendations made, not least those in the press notice to which the noble Lord referred, a broad supervisory role is now being seen as the proper function of non-executive directors so that the interests of other stakeholders, shareholders and employees can be taken into account, in the words of the Act, and the effective co-operative of executives can be ensured.
We are told by all those who studied the issue in this country that what is necessary is a better balance between executives and non-executives on the boards of public companies. What is meant by a proper balance varies according to those who consider it. For example, Pro-NED considers that about one-third of a board should be non-executive. It would prefer the chairman to be non-executive and the non-executives to form the audit committee and remuneration committee which fixes salaries and can appoint executive directors.

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Although most of the interested parties in Britain still strongly object to the concept of a two-tier board, it appears to me as though we are moving in that direction. I wish to quote from the latest annual report of Grand Met. Sir John Harvey-Jones, of ICI fame, is the non-executive deputy chairman of Grand Met. As a result of a statement from him produced in the company's annual report it appears that he is acting as the ex officio leader of the non-executives and he sets out what they do. He states:
"We are involved as non-executives in a whole range of key activities from the Audit Committee, the Management Development Committee and the Appraisal and Remuneration Committee to, and perhaps most vital of all, the long meetings held off-site at which we formulate our strategies and plans".
He ends by stating:
"I am pleased to say that we believe that our board is at the forefront of best practice of corporate governance".
That suggests that a fairly clearly defined supervisory role is allocated to the non-executive directors in that company.
In my opinion we are getting near to the Dutch system. In Holland there is a supervisory board and an executive board. I know something about that because for four years I served on the supervisory board of a Dutch company. Having had considerable experience of being on the boards of British companies either as an executive or, more recently, as a non-executive director, for the first time in my life I clearly understood my duties and responsibilities as a non-executive director. In fact, under this system the non-executive directors are ultimately responsible to the shareholders. They must take into account the interests of employees.
I must point out that under the Dutch system there are no employee representatives on the supervisory board, unlike the German system. At board meetings the chair is taken by the chairman of the supervisory board. His colleagues sit on one side of the table and the executive directors, under their executive chairman, sit on the other side of the table. They render account to the supervisory members of the board. Equally, the chairman of the supervisory board presides over annual general meetings. The chairman of the executive board makes a report to the assembled shareholders.
Before I turn to the legislative aspect, I wish to speak about the role of institutional shareholders in Britain. In spite of all efforts to widen share ownership the vast bulk of shareholdings in Britain are in the hands of institutions. They account for some 60 to 70 per cent. They are capable of exerting considerable influence on the affairs of companies, particularly during takeover battles and at times of special difficulty in certain companies.
There has been much debate about the alleged short-term approach of some institutional and banking organisations. I do not know what truth there is in that. I have come across institutions which have struck me as being short-term in their approach and others which have had a long-term approach. However, while considering the role of non-executive directors and other directors in companies, it might be appropriate to consider a code of practice for the role
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of institutional shareholders in relation to companies in which they have funds invested. I understand that the Institution of Shareholders Committee is studying that matter.
All that leads to the role that should be played by government through legislation or other means. The noble Lord, Lord Williams, has reminded the House that in the whole range of companies Acts the only reference to the function of directors is in Section 309(1) of the 1985 Act which he quoted. It states that in the performance of their functions directors should have regard to the interests of the company's employees as well as to the interests of its members.
We know that on a number of occasions the late Sir Brandon Rhys Williams, to whom the noble Lord referred, sought to introduce into the company legislation more precision as regards the role and function of directors, in particular non-executive directors. In 1978 and 1987 he introduced Private Member's Bills to that effect. Although the Bills had considerable support they never got onto the statute book.
I suggest that, as the definition of the role of non-executive directors is developing, there is a consensus growing that they should exert a supervisory role, that there should be audit and remuneration committees and that preferably the chairmen of companies should be non-executive. Sooner or later we should have reference to that in legislation. Otherwise, we shall have an increasingly confused situation with some companies, such as Grand Met. whom I quoted, carefully following the recommendations of the various bodies to which I have referred and working effectively on the basis of having what amounts to a supervisory board, and other companies totally ignoring the situation and perhaps having no non-executive directors on the board at all.
The way in which the thinking is developing in Brussels, the emergence of the single market and a consensus of opinion on best practice in this country lend considerable support to the view that sooner or later this subject should be addressed by legislation.
8.11 p.m.
Lord Donoughue: My Lords, I also wish to thank my noble friend Lord Williams of Elvel for giving the House this opportunity to discuss such an important subject. However, like my noble friend and the noble Lord, Lord Ezra, I believe it is a pity that more noble Lords on the Benches opposite, so many of whom in Who's Who (regular reading) state that corporate governance is their trade, have not in their wisdom decided to take part in this evening's debate. Perhaps some of them fear change or, understandably, are embarrassed because they do not understand their role as directors because of the ambiguities and vagueness with which it is defined or not defined.
However, we welcome the noble Lord, Lord Hesketh, who has joined our small party. I was once a partner in a stockbroking firm which acted as a broker for one of the Minister's corporate ventures. I reassure the House that that was very visionary and

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exciting. Therefore, our debate may be small but it is experienced and cosy. As always, quality matters more than quantity.
The subject of corporate governance is wide. My noble friend Lord Williams covered its main aspects with his customary clarity and I look forward to the Minister's precise answers to his penetrating questions.
I wish to concentrate on two aspects of this subject: independent directors—already well touched upon by the noble Lord, Lord Ezra; and the role of auditors. I start with independent directors, as did the noble Lord, Lord Ezra, because they are at the core of corporate governance in the so-called shareholders' democracy. In fact, shareholders' democracy does not exist in Britain because of the defects of present corporate governance. Truly independent directors, where they exist, are best placed to defend the shareholders' interests, to expose the inefficiencies of cosy management and to give early warning of malpractice. Most of the recent highly publicised corporate scandals could have been avoided or exposed at an earlier stage by alert and truly independent directors. Unfortunately such animals are still too rare in Britain. The companies which have them, such as Grand Met., are usually the best run companies which need them least. Those which need them sometimes try to avoid them or choose tame ones—retired friends of the chairman looking for a sinecure. Those who fall in that latter category are unlikely to ask the necessary awkward questions.
Apart from the main board, there are two key roles for independent directors in any company: chairman of the audit committee and chairman of the compensation committee. Such independent scrutiny is essential if shareholders are to be protected, the company's finances scrutinised and executive directors are not left to pay themselves excessive compensation. There have been a number of such cases in recent times.
Such non-executive directors should be chosen independently. The American institution of the nomination committee could be a useful vehicle, selected by the wider shareholders and itself nominating the independent non-executive directors. That would help prevent or mitigate the common practice of the chairman selecting the non-executive directors to support rather than question him. I should add that representatives of the workforce should also be included on the key committees. Employees as well as shareholders need protection and representation.
The problem which we all recognise is how to secure the introduction of more truly independent non-executive directors. Under its wings the Bank of England has established Pro-NED, to which the noble Lord, Lord Ezra, referred, to advance the cause of non-executive directors. That is a very worthy and, on my observation, well run institution. However, it cannot claim great success. It has plenty of good candidates on its books but too few takers. Perhaps the Bank of England has not given it sufficient backing from the top. It should certainly try to do more.
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The final responsibility for securing independent non-executive directors lies with the shareholders who should press for that. We know that individual shareholders are not well organised and are usually passive. Therefore, the department should accept that cause as a major departmental objective. It should campaign and educate on its behalf. It should press the Bank of England to do more. Above all it should look to provide statutory backing and definition to the role of independent director.
Large institutional shareholders should also be more aggressive—a matter to which the noble Lord, Lord Ezra, referred. They should insist that companies in which they invest have truly independent non-executive directors accountable to the shareholders. Perhaps they should issue ratings for companies according to the quality of their corporate governance.
Non-executive directors should be properly paid to do a proper job. At present they are often paid a small fee to do virtually nothing. I sympathise with my noble friend Lord Williams. They should be paid a high fee and expect to devote several days per month to doing the job properly. They should be provided with full facilities by the company and full access to financial information. Without that, they cannot do the job.
The second point on which I wish to touch, which has not arisen, is the role of auditors and the preparation of meaningful accounts. It has been apparent for many years that a company's audited accounts in this country may reveal much or very little. Often it requires an analyst—and I employed such people—with the skills and the scepticism of an MI6 Kremlinologist to interpret what is really happening in the company. Company accounting has in recent years generated a volume and spirit of creativity far beyond that achieved in artistic spheres under the remit of the Arts Council. Auditors sign off company accounts as representing a true and fair picture when in reality the financial picture is distorted beyond recognition. As an example of that, I believe that no UK clearing bank has shown a true and fair account of its financial position in its published accounts for the past 10 years.
Noble Lords will be aware that many of the highly publicised bankruptcies of recent years involved companies whose most recent accounts were signed off by distinguished auditors as being profitable and with apparently healthy assets. The heart of the problem is twofold. Currently, accountants are merely required to follow certain basic rules and have never been strictly required to provide shareholders with meaningful information about the company.
An even greater practical problem is that auditors are in a desperately competitive business. They want to retain the fees of their corporate clients and are reluctant to upset their chairmen and boards. In practice, they work for the executive board and not the wider shareholders. Consequently, at times there is great pressure on them to accept creative accounting designed to put the board in the best possible light.

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Against that background, it was encouraging to read recently the proposals for reform of accounting procedures linked to the Accounting Standards Board and the Financial Reporting Council. It is not possible here—I am not fully qualified to do so—to comment upon those proposals in detail. However, the proposals to restrict off-balance-sheet financing; to make cash flow statements compulsory, and above all, to make it an overriding requirement that accountants explain to shareholders what is really happening in the company should be welcomed and encouraged. Such changes would restrict creative accounting. Had they operated in the 1980s we should have been spared the sad sight of so many of the great heroes of the Thatcherite entrepreneural spirit becoming multi-millionaires overnight and then going bankrupt the moment that interest rates rose.
I shall not detain the House longer. I am daunted to find that I comprise one-third of the debate. I hope that the Minister can reassure us that that issue will be considered seriously by the Government. The DTI should radiate urgency —a unique experience—towards the other relevant bodies: the Bank of England, the CBI, the TUC, and the Institute of Directors; but, most important, it must look again at company law to give definition and backing to the role and obligations of directors. Ultimately, we are discussing the efficiency of British industry, and hence the health of the whole economy.
8.22 p.m
Lord Hesketh: My Lords, although we may be few in number I am sure that the content of this evening's Unstarred Question has been an addition to the annals of your Lordships' House.
The Government take a keen interest in corporate governance, and we have followed with interest the public discussion of issues relating to it over recent months. To ask for the Government's views on that vast subject is perhaps a little like asking for the Government's views on industry or on the environment; but I shall do my best to mention the main topics of interest, and particularly those that have been raised in this debate.
Corporate governance concerns the ways in which companies are managed and controlled, the ways in which the managers are accountable to the company and particularly to its owners, and to other interests such as creditors, customers and employees. Some aspects of those relationships are covered by the law. Others—the majority—are a matter of good common practice, or else practice which is appropriate to the circumstances of each company.
The Government can and do have views on good common practice, and I shall set out some key points. On the practice of individual companies I have nothing to say, since only they can be expected to understand their particular needs. But in neither case is there a need for legislation. In general, the Government's view is that where the law does touch on corporate governance it already provides the right
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balance between the need to give directors the freedom to direct and the need to protect the other interests that I have just mentioned.
However, company law is constantly evolving, partly now through the pressure towards harmonisation within the European Community and particularly in the financial services sector where the handling of other people's money makes protection and regulation more important than elsewhere. Thus, the Government are always open to ideas for change when a convincing case is made, demonstrating a real need among companies generally. I have taken note of the suggestions made in the debate.
Turning to the social and cultural background to the British style of corporate governance, I do not believe we need be detained by such general matters as the objectives of the capitalist system, the purpose of a company, and the role of profits and dividends. They are and always will be the subject of academic debate, and I want to concentrate on matters upon which the Government's views may carry some weight.
The public debate on corporate governance has re-emerged on the agenda for a variety of reasons: notably, several recent major insolvencies and increased success in tracking down malpractice including fraud, insider dealing and market manipulation. At the same time, there has been a related debate on short-termism, which has been looking at the evidence—so far inconclusive—as to whether companies should be giving higher priority to long-term investment and, if so, what is preventing them from doing it.
Insolvency and malpractice often go together in the public mind, but the reality is that companies can and do become insolvent through bad luck or bad management. There can be lessons to be learned from insolvencies—and not only those which hit the headlines—and sometimes they can be lessons about corporate governance.
It is inevitable that managers will from time to time get things badly wrong. But that must be seen in the context of a survey by Director magazine which found that the UK is top of the league in the performance of major companies in Europe, with 27 out of the best 50 performers coming from the UK. We have much to be proud of in the corporate management field—
Lord Williams of Elvel: My Lords, perhaps I may interrupt. Will the Minister explain what is meant by that quotation in the Director magazine? What is the top—
Lord Hesketh: My Lords, I am surprised by the slightly unusual practice of the noble Lord rising during the reply to an Unstarred Question. I can assure him that I was coming to that point later. I have cancelled arrangements and Government business to be here tonight.
Lord Williams of Elvel: My Lords, I am grateful to the Minister. This will go on, because I have taken a great deal of trouble, and the Minister had taken a great deal of trouble, to ensure that we know what questions are on the agenda.
Lord Hesketh: My Lords, I made it clear to the noble Lord, outside your Lordships' House, that I would address the points which he has raised. I have gone to considerable trouble to be in your Lordships' House to do so.
Lord Williams of Elvel: My Lords, so have we all.
Lord Hesketh: My Lords, Perhaps I may continue.
The view, with which the Government agree, that several non-executive directors can, if they are genuinely independent, provide a useful check on the executive directors of a company, is a view which is supported by experience as well as common sense. Separating the role of chairman and chief executive, and providing for a checking or auditing role within the board may also be desirable in many cases, especially as companies grow larger and more complex.
There is little point in requiring any of that by law, however, since accountability and good corporate governance require co-operation from those affected by it, and in some cases exceptions may be entirely justified. Shareholders and creditors are well able to ask questions and form their own views about the soundness of the regime in a company. Management which then ignores those views does so at its peril. That approach to the problems of corporate governance reflects our steadfast opposition to proposals, whether they be British or Community-inspired, which take the blinkered view that there is one perfect style that will fit any case.
That is not to say that British companies cannot borrow ideas from other countries to improve their performance as the noble Lord, Lord Ezra, said. Banks, for example, might wish to consider developing the sort of long-term close relationship with clients which appears to have gone out of fashion in the age of the syndicated loan. Non-executive directors can take a more critical view of company policies on acquisitions and mergers. Indeed, a more sceptical view of acquisition-driven policies and a greater emphasis on organic growth might well be beneficial. Here again, we are contemplating changes which could be made only with the active and willing co-operation of the company itself. Some companies show what can be done with acquisition-driven growth; other cases show the dangers. Judgment is needed by both directors and shareholders.
In the end, the Government cannot prevent companies becoming insolvent. Investors have to assess the quality and style of the management and decide whether the prospects and the risks offer an attractive balance. Nor, ultimately, can the Government prevent malpractice; but the law has developed and is enforced in ways which make it more difficult to get away with dishonesty, and so provides a deterrent. For example, the rate of compliance among companies in filing annual trading statements and balance sheets has risen, as a result of a Government campaign, from 40 per cent. to 80 per cent. in only a few years. This helps to ensure that investors and potential investors, creditors and others have the information which they need to make a proper judgment about the risks and prospects. We can be proud of this improvement, especially when we
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look at the situation in many other countries where even such simple requirements as these are not laid down or enforced. But Government still intend the rate to go much higher, and are working to achieve this.
In short, this Government have worked hard at ensuring that there is a well-regulated and firmly enforced statutory framework within which companies can operate. This is an environment that gives companies the freedom to select the style and organisation of management that best suits their needs. It is up to them to take it from there. It is up to shareholders, directors and regulators to ensure that powers given by legislation are used.
I now turn to the questions asked by the noble Lord, Lord Williams of Elvel. He asked what survey the Minister (that is, me) was referring to. I apologise. That was the most appalling intrusion on the reputation of my noble friend. The Minister is of course my noble friend the Minister of State and not me.
Lord Williams of Elvel: My Lords, he is not the noble Lord's noble friend. He is the honourable friend of the Minister in another place.
Lord Hesketh: My Lords, the survey referred to was from The Director magazine of December 1990 which gave UK companies good points on a range of aspects of performance, combining a five-year weighted average of profit before tax as a percentage of shareholders' equity, an accounting rate of return with a five-year weighted average of operating profit as a percentage of turnover and a measure of ability to control operating costs together with four other ratios measuring safety and growth. On the scores used in this survey, the top two companies out of 50 European companies were both British, namely, Glaxo and Reuters, and another 25 were also British.
The noble Lord also asked about my right honourable friend the Minister's reference to "a sensibly structured board". A sensibly structured board is in general one which provides a range of skills appropriate to the business and where several non-executive directors are there to preserve competence and honest dealing.
Next we have reference to the non-executive chairman in relation to shareholders' interests. The Minister meant that a non-executive chairman was intended and has indeed the same duties as an executive chairman, but is in a special position because he can concentrate more easily on the interests of the shareholders by being less concerned with the day to day management of the company. As the noble Lord, Lord Williams of Elvel, pointed out, he also has a duty under Section 309 of the Companies Act 1985 to have regard to the interests of the company's employees as well as its members. That is the established law and the Government have no quarrel with it.
Then we have a "truly independent non-executive director". I would have thought the phrase was self-explanatory. The first requirement is that he should have no ties with the company or other board members which might influence his judgment. The second is that he should have an independent mind

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and the ability to stand up for his own views. The Government's concern is to promote the idea of independence as an attractive feature in such cases. I am sure that the noble Lord, Lord Williams, will not suggest that there is anything wrong with that concept.
Lord Williams of Elvel: My Lords, perhaps I may make myself clear. There is nothing wrong with that concept. The question is whether it is ever put into practice. How do the Government intend that it should be put into practice? We have had many examples of non-executive directors who are friends of the chairman. They are put on the board because they are friends of the chairman. Once they are on the board it is very difficult to get them off.
Lord Hesketh: My Lords, the noble Lord, Lord Williams, requires certainty. The reality of legislation is to provide as close to perfection in balance as is possible. The Minister also mentioned the ambitions of chief executives and chairmen to which the noble Lord has just referred. It is a cliché in the commercial world that entrepreneurs who run businesses as personal fiefdoms can run into trouble when their businesses grow too large for detailed personal control to work effectively. At that point it is often useful for there to be other people on the board who can draw attention to the changing conditions and exert pressure on the chairman or chief executive to ensure that proper management structures are put in place.
Now we return to non-executive directors. Non-executive directors are in a better position to stand back from day-to-day management issues and question those like finance directors who have to deal with such issues. But as a specific duty of a non-executive director, directors are all equal under the law and the Government have no wish to change that, as was made clear several times in the debates on the Companies Act 1989.
The noble Lord also sought to question the Minister's reference to evidence on the results of takeovers. Evidence about the post-merger profitability of companies involved in takeovers was assessed in the 1978 Green Paper, which concluded that in roughly half the cases examined, the merger had had an unfavourable or neutral effect on profitability. It was recognised that there were problems of comparability, notably in relation to what profitability would hypothetically have been had the merger not taken place. Subsequent evidence has been considered by a number of empirical studies using different approaches.
It would take too long to give summaries of all of these, which are to be found in the DTI Blue Paper on mergers' policy, published in 1988. It is fair to say that most of them support the conclusion of the Green Paper, while the longer period covered and the use of varying methodologies give that conclusion greater authority. The Government do not draw from this the conclusion that takeovers should be made more difficult but that management should look at possible bids critically to make sure they are likely to be successful before launching them.
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Finally, I refer to the stock market's ratings of companies which invest successfully in the future. "Successfully" is an important word here. The most familiar illustrations of the benefits of R&D investment to stock market ratings are the oil and pharmaceutical industries, both of which generally write-off their exploration and R&D costs against income, while enjoying high fee ratios. Glaxo and Wellcome shares have all typically traded well above the market average. The point is that, if they can do it, so can others. But it does not happen entirely by accident: keeping in touch with market specialists in the industrial sector, and underlining the competitive benefits of long-term development, are legitimate activities which far too many companies fail to do effectively.
The noble Lord, Lord Ezra, drew your Lordships' attention to the statement by Sir John Harvey-Jones in the Grand Metropolitan report as the leader of the non-executive directors. It states that the UK is moving towards a two-tier board. We believe that it is a good practice to encourage non-executive directors to have a supervisory role, but to make a formal legal distinction would confuse responsibilities. In Dutch companies the supervisory board represents interests such as employees or banks. In the United Kingdom the board is responsible to the company while taking account of other interests as necessary.
Lord Ezra: My Lords, I have certain knowledge of the supervisory board, as I said. There were no banks or employees represented on it. There were outside directors drawn from a variety of companies which in that case included Shell and Unilever. I was invited to join as a UK industrialist.
Lord Hesketh: My Lords, I did not say what the noble Lord, Lord Ezra, has accused me of saying. I did not say that the banks or the employees were on the board. I said that the supervisory board represented outside interests of which those were just two. There is a multitude of other outside interests and shareholders. All I am saying is that it is a different approach in this country to the one suggested by the noble Lord, Lord Ezra.
The noble Lord, Lord Donoughue, drew attention to an earlier relationship between the two of us a decade ago. I can assure noble Lords that my knowledge of the noble Lord, Lord Donoughue, and of his great experience in the City, convinced me that short-termism was not alive and well and I shall be eternally grateful to him. He also drew attention to recent scandals that could have been avoided with independent directors. I agree with him that their appointment would probably have helped in many cases. However, regardless of directors—independent or otherwise —and auditors and others, scandals will still occur for as long as activity of a financial nature exists within a market.
The noble Lord, Lord Donoughue, also referred to the selection of non-executive independent directors. I agree that shareholders should take more active interest in pressing for the appointment of independent active non-executive directors.

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Perhaps I may close on this point. The noble Lord, Lord Williams, suggested there was something odd about the statement by the Minister for Corporate Affairs. The reality is that this statement has provided a healthy extension of the discussion and the debate that takes place. As the noble Lord, Lord Williams, drew from several examples through that statement, I felt that it had contributed to our seeing corporate finance a little more clearly.
Lord Williams of Elvel: My Lords, before the noble Lord sits down, I recognise there is advantage in the Department of Trade and Industry seeing the future a little more clearly than has previously been the case. Will the noble Lord answer a specific question? Does he think that in their annual reports companies are right to show directors as being executive and non-executive? Does he support the suggestion of the Institute of Directors that executive and non-executive directors should be specified when companies come to the market and to the Stock Exchange?
Lord Hesketh: My Lords, as I have abandoned the commercial world I am not in a position to answer that question with the accuracy that the noble Lord, Lord Williams, would desire. However, I shall ensure that a missive is dispatched to him in answer to his question.
Lord Selsdon: My Lords, before the noble Lord finally sits down, perhaps I may ask him from these rather confused heights whether in the interests of clarity he might seek to orchestrate, whether with the Bank of England, the CBI or others, the preparation of certain guidelines for directors. Many directors are now fairly confused as to their role and responsibilities.
Lord Hesketh: My Lords, I can certainly draw the remarks of my noble friend to the attention of the Bank of England. He would be slightly surprised if I were to issue a directive from Victoria Street to that effect.
House adjourned at nineteen minutes before nine o'clock.