Lords Sitting of 11 January 1996

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of St. Edmundsbury and Ipswich.

Emtryl: Effect of EC Regulation
Lord Pearson of Rannoch Lord Pearson of Rannoch asked Her Majesty's Government:
How they view the prospects for the rearing of game birds in the United Kingdom if the European ban on the use of Emtryl is not withdrawn.
Lord Lucas: My Lords, dimetridazole, the active ingredient of Emtryl, is the only authorised treatment for a number of serious diseases of game birds and its withdrawal from the market would have serious health and welfare consequences. The Government have been in regular contact with the Game Conservancy Trust and the Game Farmers' Association, both during EC discussions to keep the industry informed of developments and, following the publication of the amending regulation, to try to find an acceptable solution to their problems. A number of options are being urgently considered with the aim of safeguarding animal health and welfare while ensuring consumer safety.
Lord Pearson of Rannoch: My Lords, I thank my noble friend the Minister for that reply, but I am not sure exactly where it leaves the game rearing industry. Can my noble friend confirm that the ban on Emtryl is part of a European regulation (which means that it is not debated in national Parliaments) on which the United Kingdom was outvoted in June? If that is so, can my noble friend now give clear, unequivocal guidelines to those in the game rearing industry, which supports some 13,000 direct jobs and as many indirect jobs in this country, as to whether they will be breaking the law if they use Emtryl when they start rearing in only three weeks' time?
Lord Lucas: My Lords, my noble friend is right; it is a result of an EC regulation and we were outvoted. Spain, France, Italy and Portugal supported us, but that was not sufficient to carry the day. So far as concerns the current situation, under the regulation it is not now permissible to use Emtryl on game birds. However, as I said, we are pursuing the matter with the game rearing organisations and at length with the European Commission. We hope that we may be able to arrive at some reasonable compromise.
Lord Carter: My Lords, can the Minister say whether it is correct that Emtryl is used to keep the birds alive so they can later be shot? Is it also correct that
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Emtryl can still be included in poultry and, I believe, in pig feeds, but that it cannot be fed to game birds? What is the logic in that distinction?
Lord Lucas: My Lords, so far as concerns the first part of the noble Lord's question, the answer is yes; it is required because of the British practice of rearing game birds in the wild, rather than following the Italian practice of having them reared in Denmark and released a couple of days before the shoot. As regards the second part of the question, yes, the situation is completely illogical but the likely change of direction is to ban its use in turkey feed.
The Earl of Stockton: My Lords, can my noble friend the Minister give us an assurance that, pending a solution to the problem, there will be no action taken by his department against game farmers and game keepers who continue to use Emtryl for this breeding season?
Lord Lucas: My Lords, we have no knowledge whatever of game breeders who are using or intend to use Emtryl during this breeding season; but we have no plans to police the matter, either.
Lord Stoddart of Swindon: My Lords, is this not yet another interference with the "nooks and crannies" of British life as described by the former Foreign Secretary? Further, is it really necessary for the Government to comply with this particular regulation? Finally, can the Minister say whether there have been any cases of food poisoning arising from the use of this chemical called Emtryl?
Lord Lucas: My Lords: the decision whether to ban Emtryl is, taking a fair view of it, a difficult one. Emtryl is a compound which, in some studies, has proved carcinogenic. It is a type of compound which is likely to prove carcinogenic because it poisons the DNA. The studies on its safety were carried out some while ago and are well short of modern standards. The difficulties arise because the markets that it is used for are small. The costs of proving that it is safe would be in excess of £2 million and no one is willing to come forward with the money to do so. It is not an unreasonable decision to ban it; it is just a difficult decision and one that has gone the wrong way for us.
Lord Boyd-Carpenter: My Lords, will my noble friend say why it is the business of our European friends to legislate summarily on an issue of this kind affecting this country? Is it not absolute nonsense that they should be interfering?
Lord Lucas: No, my Lords, I think it is sensible that these things should be decided at a European level and that we should decide on a common basis what chemicals to allow in our foodstuffs and what not. For instance, the Germans treat these particular protozoan diseases with organo-arsenic compounds. When other products are reviewed under the process to which Emtryl has been subject, we hope that meat so treated

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will not be allowed into this country. I think it is quite reasonable that these things should be decided by common consent. Some we will win, and some we shall lose; but, in general, we are concerned with consumer health and if there are consequences in other areas we shall do our best to alleviate them.
Viscount Bledisloe: My Lords, is the distinction between poultry and game not peculiarly illogical as the game will have been released and been free of treatment for three months before it is consumed whereas the poultry might have been treated the day before it was killed and eaten?
Lord Lucas: My Lords, I cannot but agree with the noble Viscount except to say that of course partridges may be shot a matter of a few weeks after being released even in this country and there is no ban on our establishing Italian practices so far as game rearing is concerned in this country which would present their own problems. The permission to use this substance on turkeys is under another EC regulation which is not currently being reviewed but we suspect it will be in the not too distant future.
Lord Kimball: My Lords, will my noble friend confirm that the advice which he has had from the veterinary medicine directive is perfectly clear—that safe levels can be set for Emtryl and that a ban is in no way justified?
Lord Lucas: Yes, my Lords, that is indeed our position; but, nonetheless, this has to be a decision on a balance of risk. We understand the situation and appreciate the position taken by other members of the Community. It is in no way an unreasonable decision; it is just a decision that we would have taken in the other direction.
Lord Pearson of Rannoch: My Lords, with reference to an earlier answer of my noble friend, will he confirm that the carcinogenic effects of Emtryl were only discovered in single celled organisms and in nothing else? Will he also admit that there is no alternative to Emtryl, and that up to 50 per cent. of a flock can die without it? In those circumstances, how do the Government view the prospect of up to 10 million birds dying in great pain this summer?
Lord Lucas: My Lords, we very much hope it will not come to that. There are a number of avenues to pursue. There are other chemicals which may prove to be equally effective, and the Game Conservancy is pursuing them. There are different rearing practices which may make these diseases less common. Perhaps current rearing practices have taken advantage of the availability of Emtryl and have not looked at other possibilities. There are a number of ways in which we might act within the nooks and crannies of EC regulations to help game farmers out if there is some reason to suspect a plague of disease. We do not believe it will come to the worst prognostications of my noble friend.

East Jerusalem
3.17 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
What representations they have made to the Government of Israel concerning the moves of their Ministries of Housing and Agriculture, together with the police and army headquarters and the civil courts, into premises situated in areas of East Jerusalem held as a result of military occupation.
Lord Chesham: My Lords, we avoid arranging meetings and calls with officials in Israeli Government offices in East Jerusalem. We also regularly reiterate and make clear our view that the status of Jerusalem is a matter to be determined in the final status talks between Israel and the Palestinians, and that nothing should be done in the meantime which might pre-empt the outcome of those negotiations.
Lord Hylton: My Lords, I thank the noble Lord for his reply and very much welcome it. Will he he willing to convey my congratulations at least to his right honourable friend Mr. Hanley on his recent visit to Orient House in East Jerusalem for discussions with the Palestinian leaders?
Lord Chesham: My Lords, I will be absolutely delighted to pass on the noble Lord's congratulations. That is something I do not see very often from anywhere but I shall pass on the congratulations with great pleasure. Indeed the Minister of State, Mr. Hanley, called at Orient House during his visit to Israel, the West Bank and Gaza, which is a reaffirmation of the long-standing common EU policy on Jerusalem and Orient House; that is, that Foreign Ministers from EU states officially visiting Israel should also call at Orient House. The Israelis tried to persuade him not to go but the atmosphere with the Israelis was perfectly amicable and he made that visit.
Lord Haskel: My Lords, the wording of the Question is such that it gives the impression that the move of these offices was fairly recent. Is the Minister aware that these offices were moved to East Jerusalem over 10 years ago?
Lord Chesham: Yes, my Lords, I am aware of that. Perhaps I might expand slightly on that. The Ministry of Agriculture remains in Tel Aviv. The army HQ is in the Ministry of Defence in Tel Aviv although the HQ of the central command is in East Jerusalem and has been for some years. The Ministry of Housing moved to East Jerusalem in 1981; the police HQ has been in East Jerusalem for more than 20 years and has recently had a new HQ built in the same area; and the civil courts have moved to East Jerusalem in the past three years.
Lord Beloff: My Lords, can my noble friend the Minister explain why, if the purpose is to maintain the situatic:- in Jerusalem until the final phase of the peace negotiations, it is not equally improper for Orient House

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to function in East Jerusalem, which suggests that the decision will be on the Palestinian side? Why are these matters not treated equally?
Lord Chesham: My Lords, I believe that they are treated equally in that visits are made to West Jerusalem on the Israeli side and Orient House is in East Jerusalem. Our position on Jerusalem has not changed. It is a matter to be determined in the final status talks between the parties and neither side should do anything to pre-empt the final status negotiations.
Baroness Blackstone: My Lords, is the Minister prepared to raise with his right honourable friend the Secretary of State for Foreign Affairs the question of continuing housing settlements to the east of Jerusalem? Will he ask his right honourable friend whether he will raise this matter with the United States Government? Since successive American Governments have described the policy as an obstacle to peace and as a complicating factor, would it not be appropriate to ask the American Government to use their considerable influence with the Israeli Government to stop that unfortunate and short-sighted policy?
Lord Chesham: My Lords, I shall certainly pass on that message. Our position is that all settlements in occupied territory are illegal and are an obstacle to peace. We have raised the issue repeatedly with the Israeli Government.
Viscount Allenby of Megiddo: My Lords, can the Minister say whether he anticipates that the elections on 20th January will take place in East Jerusalem, and indeed all over Jerusalem? If that is not the case, will the Government bring pressure on the Israeli Government to ensure that they do?
Lord Chesham: My Lords, we have no reason to believe that the Palestinian elections, due on 20th January, which were agreed between the Palestinian authority and the Israeli Government, will not go ahead.
Lord Hylton: My Lords, is the noble Lord aware that many of us hope that what will emerge in the long run is Jerusalem as a capital for two separate states and entities? Will Her Majesty's Government bear in mind as a background to the negotiations the vital interests of three great monotheistic religions in not only Jerusalem but also such places as Bethlehem and Hebron?
Lord Chesham: Yes, my Lords.

Fish Fingers: Content
3.22 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they consider that any action is necessary upon the finding, in recent research sponsored by the European Commission, that fish fingers sold in the United Kingdom have less fish content than those in most west European countries.
Lord Lucas: My Lords, we believe that labelling of fish fingers could usefully be more informative. We
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support the European Community proposal to require quantitative ingredient labelling which is very close to final adoption. When implemented this will require products such as fish fingers and fish cakes to declare the amount of fish that they contain.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for his reply and in particular for the information that in future the fish content of fish fingers will have to be stated on labels, as with meat products at present. However, is this not a matter to be left to the tastes and preferences of the consumers? In the present circumstances of serious over-fishing of Europe's seas and severe pressure on fish stocks, may the frugal apportioning of fish to fish fingers also prove to be a sensible conservation measure?
Lord Lucas: My Lords, I have to agree with my noble friend. Indeed, fish-free fish fingers would be very popular with my family.
Lord Carter: My Lords, does the Minister agree that the absurdity of the common fisheries policy and the lack of consumer protection in this country are well illustrated by this situation? While the common fisheries policy results in tens of thousands of tonnes of fish being thrown back into the sea, the Government have allowed a situation to develop where the British fish finger is singularly lacking in fish.
Lord Lucas: My Lords, I do not see the sense in the noble Lord's question.
Lord Campbell of Croy: My Lords, having protected the British sausage a few years ago—a subject which I raised in this House at the time—will the Government now prepare to defend the British fish finger? Was the expenditure by the Commission on the research necessary?
Lord Lucas: My Lords, I cannot comment on whether the research was necessary. I do not know how much it cost and I do not know of any particular use for it. With regard to the British fish finger, we know of no Commission proposal to affect it or abolish it, and were there any such proposal we would certainly raise two fish fingers to it.

Dr. Muhammad al-Mas'ari
3.25 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What were the circumstances in which they decided to deport Dr. Muhammad al-Mas'ari.
The Minister of State, Home Office (Baroness Blatch): My Lords, the decision to remove Dr. al-Mas'ari was taken when it became apparent that there was a safe country where he was admissible.
Lord Avebury: My Lords, does the Minister agree that Dr. al-Mas'ari is a person with a well-founded fear of persecution in his country of origin and therefore is a refugee within the meaning of the convention irrespective of whether or not there has been a

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determination to that effect? In those circumstances how can the Government pretend to get round their obligation under Article 32.1 of the convention not to deport Dr. al-Mas'ari except on grounds of national security and public order? Has it not been made perfectly plain by Miss Ann Widdecombe in repeated appearances on television that the reasons for his deportation are our commercial interests?
Baroness Blatch: My Lords, the important point is that a safe place is found for Dr. al-Mas'ari. However, it has to be accepted that Dr. al-Mas'ari is an illegal immigrant. He has used the hospitality of this country to wage a campaign to bring down the Saudi Government. The decision to remove him to a safe third country was taken strictly within our obligations under national and international law.
Lord Clark of Kempston: My Lords, does my noble friend agree that it is inexcusable that a dissident from a foreign country should be able to come to this country and stir up trouble between this country and a friendly government overseas? Does my noble friend agree that my right honourable friend the Home Secretary was absolutely right to deport this man? Finally, can my noble friend confirm that if Dr. al-Mas'ari appeals against his deportation order he will not, as a dissident and illegal immigrant, be entitled to legal aid?
Baroness Blatch: My Lords, I agree with much of what my noble friend says. Our Government exist to advance and protect the interests of the United Kingdom. Those include people's jobs and peace and stability within the Gulf states. They also include not damaging our national or international interests. The activities of Dr. al-Mas'ari since his arrival in this country in his attempts to overthrow the Saudi Government put all those interests at risk. It is therefore entirely proper for my right honourable friend the Home Secretary to take such matters into account while at the same time honouring his obligations under the law.
Lord Dubs: My Lords, since when has an asylum seeker who properly claims a place of safety in this country under the Geneva convention been labelled an illegal immigrant?
Baroness Blatch: My Lords, it is not in doubt that Dr. al-Mas'ari is an illegal immigrant. He left Saudi Arabia and obtained a false passport in the Yemen. He then obtained a visa to enter this country. He entered this country as an illegal immigrant. The noble Lord may shake his head, but that is a fact. Dr. al-Mas'ari left Saudi Arabia for the Yemen. Under false pretences he obtained a passport in the Yemen and then obtained a visa to enter this country and entered as an illegal immigrant. I have to say in addition, that there is no right under any law for an asylum seeker to pick and choose the country in which he wishes to reside. Therefore, it is entirely within the law for my right honourable friend to secure a safe place even if that is in a third country.
The Lord Bishop of Ripon: My Lords, does the Minister accept that many of those who are dissidents in their own country are precisely those who need
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asylum for the very reason that they are under threat of persecution? Will she further accept that the national interests of this country include our stature as a nation which is believed to hold certain moral standards, including that of providing asylum for those who need it? Can the noble Baroness give an assurance that such moral considerations were given full weight together with commercial ones in reaching the decision in relation to Dr. al-Mas'ari?
Baroness Blatch: My Lords, there is no doubt that this asylum application is being accepted and treated seriously. There is no question of this gentleman being sent back to the place where he perceives his life will be in danger. We are honouring our obligation to find a secure place for him; that we have done. The legal basis on which that decision was reached is paragraph 345 of the Immigration Rules which provides that an asylum application may be refused without substantive consideration if there is clear evidence of admissibility to a safe country.
The Prime Minister of Dominica has given an assurance that his Government would be prepared to allow entry to Dominica; and if Dr. al-Mas'ari were to seek asylum it would be granted.
Lord Jenkins of Putney: My Lords, for what reason was Dominica selected? By what process was Dominica selected as the place where the Government could take action to get rid of Dr. al-Mas'ari? It is a process which is considered by many on both sides of the House as being discreditable to the Government.
Baroness Blatch: My Lords, I am fairly confident in saying that the Members of this House who sit behind me believe that it is not right that we should give harbour to someone who acts against the British interest. However, we have an obligation under international law. That obligation is to secure a safe place. We asked Dominica; it accepted. We believe that it is the right place for this gentleman.
Lord Geddes: My Lords, will my noble friend assure the House that the decision to remove Dr. al-Mas'ari to Dominica does not in any way breach this country's obligations under international law?
Baroness Blatch: My Lords, I believe that I have said that, but I am happy to reassure my noble friend that that is our understanding. Dr. al-Mas'ari has the right of appeal. We do not know whether he has yet exercised it. He has 10 working days from 3rd January. If he does so, we will stand judgment. However, our understanding is that we have acted entirely within the law and under our obligations to international law.
Earl Russell: My Lords, perhaps I may hope to command agreement on both sides of the House by saying this. If the Government of Saudi Arabia were to require, as a condition of future contract, that we ban the consumption of alcohol in this country the Government would say, "No", no matter how many jobs were

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involved. If I may count on that assurance, will the noble Baroness tell us why alcohol matters more than free speech?
Baroness Blatch: My Lords, if I may be so bold, in the context of this Question I think that that point is rather frivolous.
Baroness Strange: My Lords, would my noble friend agree that if you took into your house a stray dog which persists in biting the postmen, you are entitled to find another home for that dog where it has fewer postmen to bite?
Baroness Blatch: My Lords, if I have to concede to equality of treatment, I have to say also that in the context of this Question that was frivolous. I also believe that the law well covers the issue of dangerous dogs.
Lord McIntosh of Haringey: My Lords, in a number of answers the Government have relied on the general interests of this country. The Minister will know that we on these Benches recognise the obligation of the Government in general to protect the interests of this country. However, is not the issue of an asylum application a quasi-judicial function rather than a political question? Is it not wrong, therefore, for the Home Secretary to rely so heavily on the country's interests in considering an individual question of this kind?
Baroness Blatch: My Lords, no, I entirely support the activities of my right honourable friend the Home Secretary in this matter. It is absolutely right that he should consider British interests. When someone is actively working against British interests, damaging both economic and strategic interests, and international relations between this country and another, it is right that my right honourable friend considers two issues: his obligation under the law to secure a safe place for an asylum seeker; and his obligation to protect the British interest.
Lord Brabazon of Tara: My Lords, how many jobs are at stake from Saudi Arabia at present? Can the noble Baroness tell me how those who oppose the Home Secretary's actions propose to replace those jobs?
Baroness Blatch: My Lords, those who have spoken in favour of Dr. al-Mas' art staying in this country should address themselves to the second point of my noble friend's question. It is not a matter for me.
Trade with Saudi Arabia amounts to about £1.5 billion. That represents many thousands of jobs in this country, all of which would be at risk if we pursued giving harbour to people who were actively working against our commercial and strategic interests in the Middle East.
Lord Harris of Greenwich: My Lords, have the Saudi Arabian Government stated what she has said in this House: namely, that defence contracts would be cancelled were this man not to be removed from this country?
Baroness Blatch: My Lords, no, I shall not confirm that because I do not believe it to be true.
Lord Marlesford: My Lords, does not the lack of a ringing endorsement from the noble Lord, Lord McIntosh
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of Haringey, for the action of the Home Secretary contrast rather strangely with the suggestion from the leaderof the Labour Party that Thatcherism would be safe in his hands?
Noble Lords: Frivolous!
Baroness Blatch: My Lords, no, it is not frivolous. In the context of the Question, I believe that my noble friend Lady Thatcher, and my right honourable friends the Prime Minister and the Home Secretary have at the heart of their policy making the economic well-being of this country, and strategic interests between this country and abroad. I believe that it is one of fire legacies that we are happy to carry. In view of some of the remarks of noble Lords opposite, I wonder where they stand on the issue.
Lord Mayhew: My Lords, what action are the Government contemplating, by legislation if necessary, to ensure that in future refugees who are granted asylum in this country are not able to campaign politically against the overseas interests of this country?
Baroness Blatch: My Lords, the noble Lord makes an important point. We have an honourable tradition in this country of giving safe haven to people who arc in fear of their lives abroad. However, if their activities act against the British interests, and put the British interests at stake, and if there is an alternative safe place in a third country, it is entirely legitimate for my right honourable friend to consider that option.
Lord Howell: My Lords, as regards people seeking political asylum, are there any rules which govern political activities which can take place? Most people believe that there should be such rules. People who seek asylum should receive an explanation about what they can or cannot do until their application has been determined.
Baroness Blatch: My Lords, no. Li fact even the activities of Dr. al-Mas'ari were not illegal as such. However, what he was doing was to act against the British interest. When my right honourable friend had to make a decision about whether he should be given safe haven here or in a third country, he thought that it was in the British interest that he should go to a third country.
Lord Avebury: My Lords, if there is a conflict between Article 345 of the Immigration Rules and Article 32 of the convention, will the noble Baroness confirm that our treaty obligations to the convention would prevail?
Will the Secretary of State, whose father would have been an illegal entrant if the law now prevailing had operated at the time he came here, bear in mind that by giving way to the blackmail of the Saudi Arabian medieval autocracy we have now opened ourselves to similar treatment from every other country in the world

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which awards large contracts to British companies and which wants their dissidents to be expelled from this country?
Baroness Blotch: My Lords, my right honourable friend acted honourably in this instance. He acted in British interests and I believe that he is right.

Asylum Seekers: Benefits
3.39 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, with the leave of the House, I should like to repeat a Statement being made in another place by my right honourable friend the Secretary of State for Social Security. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement about the regulations to reform benefit arrangements for asylum seekers, sponsored immigrants and others. I have today laid before the House the regulations together with the accompanying Command Paper.
"The aim of these reforms—together with the measures in the Asylum and Immigration Bill—are to ensure that the United Kingdom remains a safe haven for those genuinely fleeing persecution; to deal more speedily with their claims; and to discourage unfounded claims from those who are actually economic migrants.
"Of course, genuine refugees come to the United Kingdom to escape persecution, not to obtain our benefits. Their rights to asylum will not be altered in any way. And anyone who arrives here as a refugee and seeks asylum at the port of entry will continue to have access to benefits while their claim is considered by the Home Office.
"However, over 90 per cent. of those claiming asylum are eventually found not to be genuine refugees. The vast majority of asylum claimants are economic migrants. The number who come here is influenced by the ready availability of benefits. Relative to Britain, other European countries offer more limited benefits, less opportunity for work, and have tightened up the procedures applying to asylum seekers. As a result, since 1993 the number of asylum claims in western Europe as a whole hag fallen by over a third. Yet in Britain it has doubled. Consequently, the proportion of all asylum seekers in Europe who come to Britain has more than trebled over the last decade. The huge number of unfounded applications means the tiny proportion of claimants who are genuine face an unnecessarily long process. And the total cost of social security benefits alone for asylum seekers already exceeds £200 million a year. Yet more than 90 per cent. of this money goes to people who are not genuine refugees. No responsible government could ignore this growing misuse of taxpayers' money.
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"One way to address the problem is to speed up the processing of asylum claims. The revised procedures in the Asylum and Immigration Bill will speed up the processing of claims. But it is crucial that the new procedures are not in turn overwhelmed by a rising tide of unfounded claims. So benefit changes are essential to discourage unfounded claims.
"Under the new benefit regulations, those who enter the country as refugees£declaring themselves to be asylum seekers at the port of entry£will still be entitled to claim benefit while the Home Office deals with their claim. So will people who claim after entering the country as visitors if there has been a significant upheaval in their homeland since their arrival. But at present some 70 per cent. of all asylum claims are made by people who entered the United Kingdom as tourists, students or businessmen. As such, they demonstrated that they have the means to support themselves while here. And they accepted that they would not be entitled to claim benefit. Yet when they subsequently apply for asylum, under current rules, they become entitled to benefit. We propose to end entitlement to benefit for those who entered the country saying they were not here to seek asylum but subsequently change their story. From now on there will be no benefits for those who misrepresent their case. British citizens do not receive a benefit while appealing against its refusal. Successive governments have upheld that policy. Otherwise, every unsuccessful British benefit claimant would have an incentive to appeal against refusal of benefit. However, under the present rules for asylum seekers, they are entitled to retain benefit during an appeal. Not surprisingly, the vast majority of asylum seekers do appeal against rejection. Yet 96 per cent. of their appeals turn out to he unfounded. I therefore propose that once an asylum seeker's claim has been considered and rejected, entitlement to benefit will cease. They will no longer be able to prolong entitlement to benefit by appealing against refusal of refugee status. In that respect, asylum seekers will in future be treated in the same way as United Kingdom citizens whose claims for benefit are refused.
"Particular concern has been expressed at the prospect of large numbers of asylum seekers losing entitlement on the day the new arrangements come into force. Of course, I understand those concerns. When the proposals were announced last October, there was an obvious danger of a surge of pre-emptive claims during the consultation period to get on to benefit before the new regulations came into effect. To discourage this we announced that those who made in-country claims or appeals after 11th October would lose benefit entitlement once the regulations took effect. This announcement does seem to have dampened the surge of pre-emptive claims. I have taken note of concerns about handling a large number of benefit terminations simultaneously and the transitional impact on local authority finances. I have therefore decided to amend the transitional

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arrangements significantly. No one will now lose benefit at the point when the new regulations come into effect on 5th February 1996.
"The 13,000 or more asylum seekers who have made in-country claims or appeals since 12th October 1995 and are receiving income support, housing benefit or council tax benefit will continue to get benefit unless or until their claim or appeal is subsequently rejected. This transitional protection will substantially reduce the potential impact on local authorities.
"However, the Government also propose to assist local authorities with any unavoidable additional costs arising under homelessness legislation or the Children Act. My right honourable friends the Secretaries of State for Health and Environment will be discussing the details with local authority associations shortly. I believe this fully meets the most pressing concerns put to the Government by the Social Security Advisory Committee and local authorities. Taken together with measures proposed in the Asylum and Immigration Bill, and further work between my department and the Home Office on improving asylum decision times and priority setting, these changes will make a significant contribution to addressing the problem of bogus asylum seekers.
"The Government further propose that people from abroad whose leave to enter or remain in the United Kingdom is subject to some limit or condition, for example, that they should not have recourse to public funds, should be excluded from non-contributory benefits. This will bring these benefits into line with the exclusions which already apply under income support, housing benefit and council tax benefit. The arrangements whereby people are allowed into this country on the understanding that a sponsor has promised to support: them has been widely abused. Nearly half the sponsors renege on these agreements. The regulations will hold sponsors to their agreements. Benefit will only be payable if the sponsor dies or the sponsorship -agreement breaks down after five years. Finally the Government propose to amend the arrangements to remove the discretion of the Secretary of State to make interim payments in some circumstances.
"No responsible government could fail to tackle a situation where well over 90 per cent. of benefit is not going to genuine refugees. These reforms will ensure that the UK remains a safe haven for genuine refugees. They will help deal with their claims faster. And they will discourage bogus claimants who are bettering themselves at the taxpayers' expense. The changes I have made will end concerns over the transitional arrangements, alleviate burdens on local authorities and protect the British taxpayer. I believe the measures are both fair and necessary. I commend them to the House."
My Lords, that concludes the Statement.
3.49 p.m.
Baroness Hollis of Heigham: My Lords, first I wish to thank the Minister for repeating the Statement made in another place. I wonder whether he begins to understand the concern, fear and anger the proposals have aroused. The revised regulations vary in only two ways from the original draft regulations. It is hard to be sure because we received such little notice of them. The new regulations vary in that they apply only to new arrivals and there will be some reimbursement of local authorities.
The original regulations were scrutinised in considerable detail by the Government's Social Security Advisory Committee, which sought the views of some 225 organisations and individuals: Churches, charities and local authorities. And what were the conclusions of that government committee? On page 12 of its report it stated:
"It is difficult to see how asylum seekers who are unable to work or find alternative sources of funding could survive through such long delays without support from the social security system. We are in agreement with the point made by the majority of our respondents that it is very likely that many would be forced to abandon the struggle and risk returning to their own country, possibly to imprisonment or worse. Arguably, the combination of the proposed benefit changes and Home Office delays would effectively deny such people the ability to pursue their rights under immigration law in the UK, also their rights according to the letter and spirit of international law".
Almost without precedent in my experience, the Government's own Social Security Advisory Committee has called in paragraph 66, and it has not done so lightly, for the unconditional withdrawal of these regulations.
The concern, fear and outrage relayed to the Secretary of State by the advisory committee, which he has largely ignored, was compounded in this House, first, by the way the parliamentary timetable was handled. The regulations, affecting some of the most vulnerable, threatened, frightened, sick and inarticulate people, were laid 21 days before 8th January. Eighteen of those 21 days occurred during the parliamentary Recess. Noble Lords will understand if the only conclusion we can draw is that the Government were anxious to smuggle the regulations through with as little debate, parliamentary scrutiny and discussion as possible. I acknowledge that the Government Whips in this House helped to persuade the usual channels that this was not the right way to proceed, and we are grateful for that. But it is no way to treat regulations of such significance affecting so many vulnerable people.
Our concern and anger have been compounded by the assumption, very clear throughout the Minister's Statement, of fingering the victim. The reason for the problem is the delay at the Home: Office in the processing of applicants. Will the Minister confirm that the following figures were given by the Home Office in response to a parliamentary Question in the other place on 4th December? Will he confirm that 15 per cent. of the initial application decisions from 1991 have not yet been determined; 15 per cent. from 1992; 15 per cent. from 1993; 25 per cent. from 1994; let alone the more understandable 25 per cent. for 1995? The reason we have a problem is the backlog of undetermined initial

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decisions, which take on average eight months and may take two, three and in some cases even six years to resolve. Meanwhile under the new proposals, asylum seekers are supposed to linger on the streets without income or support. We ask how they will survive.
Will the Minister also accept that the distinction he draws between the 30 per cent. of refugee status seekers at the port of entry and the 70 per cent. who subsequently apply after entry, whose applications he calls bogus, is itself bogus? That is made clear in paragraph 38 of the report of the government advisory committee. The committee states that those who come to court are certainly not scroungers but will often have a lack of knowledge of our procedures, will be confused and frightened, will have genuine language difficulties, and may come with a well-founded fear of officials and police. They will have a reasonable need of advice and guidance. It is therefore sensible and safer for them to apply for asylum once they have entered this country.
So says the Government's Social Security Advisory Committee. The problem is due to Home Office delay in processing. It is unreasonable to penalise those who enter the country and apply for asylum once they have entered. As the committee states, that is a sensible and safer way for them to proceed.
Why, then, is it being done? It is being done in order to save £200 million in cash and to appeal yet again to the knee-jerk right-wing majority that is, unfortunately, increasingly making itself heard in the other place.
The Government estimates that they will save £200 million on the original proposals. Perhaps the Government will confirm that that figure still stands. The cost of keeping a family of four on reduced social security benefit (just income support) for a week is about £100. The cost of taking one child into care when that family no longer has an income is £870 a week. Yet the Government intend to withdraw income support, housing benefit and council tax benefit. The costs for children in care, and the damage to the health of those children-and their families, will be immense and immeasurable. The cost of homelessness will soar, as probably will the cost of detention in prison. I put it to the House in all good faith that the costs incurred will far outweigh the savings that the Government seek to make—all to assuage the far right, xenophobic wing of the Tory party.
I conclude with the words of the Social Security Advisory Committee on these proposals at paragraphs 61 and 62. I ask noble Lords to take these words very seriously:
"We do not see how these people would be able to support themselves. As they have qualified for income-related benefits they are by definition without adequate income or capital on which to live. They are unlikely to return home. For many it would be too dangerous and the majority will simply not have the means. Nor can it be assumed that they will be taken care of by the network of support services provided by local authorities, voluntary groups or charities".
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Local authorities have made that clear.
"Even if they had the resources, they do not have sufficient planning time".
The report continues:
"The reality of the proposals is that thousands of men, women and children will be left with no means of providing themselves with food or shelter. Many will have no option but to live on the streets of our major cities and ports. Health professionals have warned that, given the vulnerability of many asylum seekers due to their already precarious physical or mental health, some may die".
That is the advice, not from me, not from the welfare groups, not even from the Churches, but from the Government's own Social Security Advisory Committee. Can we make one last plea to the Government and endorse what its own committee called for; namely, that these regulations be withdrawn?
Earl Russell: My Lords, it is a convention of parliamentary life in this House that we express ourselves with as much decent moderation as we can manage. For that reason I begin by thanking the Government for the concession they made over the timetable for these regulations to allow them to be freely debated in both Houses. However, I hope it is understood on that side of the Chamber, as it is on this, that decent moderation is harder to achieve on some occasions than it is on others. For us, this is a very difficult occasion indeed on which to achieve it.
First, I join the noble Baroness in expressing my regret that the Government rejected the advice of the Social Security Advisory Committee—not, I regret to say, for the first time. That is an expert committee and it deserves attention. I also express my regret that the Government, having felt that they had to proceed with the regulations, did not embody them in the Bill as, with the concession on the timing, they could perfectly well have done. That would have made it easier for the opinion of this House to be expressed upon them.
The Minister relied very heavily on the Government's arguments about bogus refugees. I rather agree with my honourable friend Mr. Alton that we are dealing with bogus refusals. I sat through the whole of the debates on the 1993 Asylum and Immigration Appeals Bill. I shall never be able to bring myself to understand the idea that anyone who does not pass the tests of that Bill is a bogus refugee. In expressing that view I may be speaking for a considerable body of international and legal opinion.
I deeply regret the decision to withdraw benefits from people who do not declare themselves at the port of entry. It is rather like telling somebody who is in the water and on the point of drowning that he must explain how he got there before he is allowed to clamber into the boat. It is not in the real world. In particular, people who have been the victims of torture—too many of those with whom we are dealing—are often in an extremely confused state. Indeed, amnesia as a result of torture is perfectly possible. Such people may find it difficult to tell their stories.
It could also be difficult for reasons of language. How many in this Chamber know the word for asylum in Bulgarian? I for one certainly do not. It is also extremely difficult, even for those such as myself who have rather

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more experience of them than we would wish, to understand exactly what is meant in forms emanating from the Home Office or the Department of Social Security. A desire for expert help in filling in forms on which one's life may depend is a perfectly proper concern.
The refusal of benefits to those who do not apply at the port of entry is not only a danger to asylum seekers; it is also a slap in the face to the voluntary organisations which put a great deal of time, effort and conscience into attempts to assist those who are in need of help. Many people are entitled to take offence.
I hear what the Minister said about the withdrawal of benefit pending appeal and putting people in the same position as British citizens. I do not need to remind the Minister of what was said on that issue when we discussed it at considerable length and with very considerable heat during the Jobseekers Bill. The Minister thought that the noble Baroness, Lady Hollis of Heigham, had expressed herself rather more freely than was proper. I entirely understood why the noble Baroness spoke in that way. By praying that in aid, the Minister invites the reply that two wrongs do not make a right.
There is also a considerable difference between the cases. A person in this country who is refused benefit may have relatives and friends. He may know all kinds of things, such as where to find the Salvation Army, which a Bulgarian asylum seeker does not know. He has a great many ways in which he can make shift, which somebody coming to this country for the first time without knowing the language does not have. So even though both cases are wrong, in my opinion the latter is a great deal more wrong than the other.
I am glad that there is help for local authorities. What is the cost of that help likely to be? I heard what the noble Baroness had to say about the cost of taking a child into care. Will the Minister confirm that there is no plan to repeal Sections 17 and 20 of the Children Act?
The Minister attempted to occupy the high moral ground. Let me reply by attempting to occupy the practical ground and ask what in fact will happen next. These people have been refused benefit. They have appealed. As the noble Baroness, Lady Blatch, confirmed to me in a Written Answer just before Christmas, the Government cannot deport them. I am grateful for that answer. The Home Office has surely not yet forgotten the case of In Re M.
These people will not be in a position to make their way home at their own cost, even if they were able obtain entry when they got there. That is especially true when those people are the economic migrants about whom the Government express so much anxiety. They cannot go away. They cannot work in the first six months and will often find it extremely difficult to work thereafter, especially if they know no English. So they are trapped here. They cannot work; and they do not have any benefits.
What will happen to them? They may, of course, beg. They will, I am certain, become a call on private charity, but that is likely to be such a burden that all those who oppose these regulations should, in propriety, declare an
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interest. By an interest I mean a pecuniary interest. I do not believe that, by ourselves, we shall be able to support that burden. That raises the possibility, which I should be ashamed to see realised, of the UNHCR opening refugee camps on British soil. We may feel that that is fanciful. It would certainly raise the possibility of a very considerable health hazard. The rate of TB among the homeless on the London streets is 200 times the national average. So it would not only be inhuman but also expensive and against our own interest.
Once again, humanity is the best policy. If the Government cannot answer the question of what will happen to the asylum seekers from whom benefit is withdrawn, they should postpone the implementation of regulations until they can.
Lord Mackay of Ardbrecknish: My Lords, I must say that I have heard a few extravagant reactions to Statements in this House, but this afternoon takes the prize. I should like to go back and put the figures in the Secretary of State's Statement in a more simple form, which might help bring home to the Opposition the real facts.
Taking 1994, of every 100 applicants for asylum, four were successful, 17 were given exceptional leave to remain and 79 had their applications refused. Needless to say, almost all appealed—sensibly, in their own interest, because it keeps them on benefit. Three appeals were granted, 61 were dismissed and 15 were withdrawn. So, at the end of the day, seven out of 100 were accepted as genuine refugees, 17 were given exceptional leave to remain and 76 were refused asylum. Members of this House and other people who comment on the issue should try to hold in their heads those simple figures when they come to judge what will happen as a result of the Government's actions.
Of course, the Social Security Advisory Committee took the views of various bodies. I looked at them but I did not notice that the British taxpayer was among them. One of the problems of government is the need to take the interests of the whole country into consideration.
We listened to and read carefully what the Social Security Advisory Committee said. The noble Baroness breathlessly quoted parts of it. That was largely directed at the transitional arrangements and, as I explained, we have considerably altered the transitional arrangements from those we originally envisaged for the reasons I mentioned. I believe therefore that many of the problems posed by the committee which relate to the transitional arrangements have now been removed. Those people currently on benefit will continue to receive that benefit—13,000, as I mentioned in the Statement—until the next stage of their appeal or application is heard.
The noble Baroness described asylum seekers collectively as being "vulnerable" and "frightened", and said that it was too dangerous for them to return to their own countries. But my original figure of 100 must be borne in mind. Out of 100 only seven were considered to be genuine refugees; indeed, 76 were refused. What the noble Baroness says therefore is not: the case.

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The noble Earl, Lord Russell, and the noble Baroness discussed the question of port of entry. In future, if somebody comes to claim asylum in this country and applies at the port of entry, he will be allowed benefit until the first decision is made by the Home Office. That is the new arrangement that we are putting in place. It relates only to those people who apply from "in-country".
To listen to the noble Baroness, it would not surprise me if most of your Lordships thought that hardly anyone applied at the port of entry. But that is not true. More than one-third apply at the port of entry. Therefore that rather sets aside the suggestion that the immigrants are so scared when they come to Heathrow that they are too frightened to ask a British immigration officer for asylum. Indeed, during the transitional period of November and December the numbers applying at port of entry actually increased. The noble Earl and the noble Baroness should at least try to obtain some mathematical basis for their extravagant statements.
The noble Earl would like everyone, both British citizens and asylum seekers, to be allowed to keep their benefit during the appeal process. That may be all very well for the Liberal Democrats, but the rest of us have to work out how much that will cost the taxpayer. Just as we experience it with asylum seekers, people would appeal simply in order to stay in benefit. That is exactly what happens.
Remarks were made about the regulations; that we are trying to smuggle them through. The regulations were laid today and that will allow debate before they come into effect on 5th February. One of the problems we encounter in the whole business of judging asylum seekers is the weight of numbers. As we have attempted to put more resources and people into helping to make decisions quickly, the actual numbers coming to this country have increased even further. The whole system has become overwhelmed. One of the reasons why it takes time to process applications is that so many are bogus.
Beyond that, when we reach the appeal stage, the number of appeals which are interrupted, asking for adjournments while they are on-going—the reason is often simply to spin out the process in order to continue to receive benefit—is also increasing. We must remember that three-quarters of those applying are not actually granted permission to stay in this country as refugees or exceptional leave to appeal.
The system I am outlining this afternoon is a perfectly fair and reasonable one. It deals with the problems that we are facing and that other countries face and are dealing with in a similar and related manner. We hope that it will reduce the incentive for people to come here and live on benefit. It will reduce the incentive especially for those who come here telling our immigration officers that they are coming for a holiday or a visit and, after a few weeks or months here—perhaps when it is time to go home—they promptly decide that they would like to claim asylum.
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As I said at the beginning, the noble Earl and the noble Baroness failed to take the figures on board. Their extravagant language would be much more appropriate if three-quarters of applicants were found to be asylum seekers rather than the other way around.
4.15 p.m.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many of us are glad that the Government have had the courage to tackle this matter? For a considerable time it has been an obvious and growing scandal that people come to this country largely drawn by the attractiveness of our social security system. They claim to be refugees whereas, as the Minister said, only a comparatively small proportion of them in fact are genuine refugees; most of them come to this country because they believe it to be a nice country in which to live with a generous social security system on which they can live quite happily. I am glad that the Government have had the courage to try to tackle the problem, conscious as they must be of the fact that a great deal of emotion will be raised on the subject. We heard a little of it earlier this afternoon.
Will my noble friend the Minister spell out in a little more detail what the financial savings resulting from the new arrangements will be for the British taxpayer? He mentioned £200 million. Either the noble Baroness or the noble Earl said that, because of other charges that will arise, the reduction in costs to the British taxpayer will be much less. I shall be grateful if my noble friend will put clearly before the House what the Government anticipate will be the financial saving as a result of the regulations.
It must be clear that at the moment we are spending a good deal of British taxpayers' money on cases for which there is little justification. It will be interesting and important for your Lordships to have in mind when we consider the regulations exactly what the Government contemplate the saving will be. My view is that it will be substantial. I believe that the British taxpayer resents being taxed to provide support on a general scale for a large number of people in respect of whom it is not justified.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to my noble friend who has had considerable experience in days past of the problems of the benefit system and how to control it.
We envisage that, once the system is up and running, we shall be making savings of the order of £200 million a year—the figure quoted by the noble Baroness. Those savings will not be made in the next financial year because of the generous transitional arrangements I outlined. The savings will be greater if we can reduce the number of migrants who come here; if we can reduce the number of bogus asylum seekers. They put costs onto local government; for example, through the education system and so forth. Therefore, while my £200 million saving relates to the benefit system alone—I am sure people will approve of that—there will

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be other savings. Fewer people will come here and further costs will not be imposed on local government services.
The Lord Bishop of Ripon: My Lords, does the Minister realise that within the Churches there are many who share the anger and dismay expressed by the noble Baroness, Lady Hollis, and the noble Earl, Lord Russell? Does he realise that we, too, object to the word "bogus" in relation to those applications that are rejected? It is not that the applications are bogus, but rather that those applicants have not been able to jump through specific hoops. That is the language that we would choose to use.
Furthermore, does the Minister realise that a considerable problem is being raised through the regulations? Voluntary agencies, the Churches among them, are attempting to respond. Does he realise, for instance, that the diocese of Southwark is attempting to respond to the situation? Are the Government prepared to put any resources towards the voluntary agencies that are attempting to meet the need?
Lord Mackay of Ardbrecknish: My Lords, I cannot agree with the right reverend Prelate that just because the applications have been refused I am somehow not allowed to come to the conclusion that the applications were not ill-founded in the beginning. If the right reverend Prelate takes a look at the countries from which many of those applicants come he will be hard put to explain how people could come from those countries, which most of us consider stable and democratic, and find themselves within the rules of being refugees.
We give money to various organisations. We give £1.4 million to the Refugee Council, we give £500,000 to Refugee Action and we give a number of other more regional bodies about £30,000 each in order to do the work they do. We are always happy to discuss with them the kind of problems which arise on this difficult question. I hope that the right reverend Prelate will look at the figures and also look at the rising trend which has led to an almost ten-fold increase in the number of people applying in this country over the past decade.
Lord Dubs: My Lords, I should declare an interest in that until last June I was Director of the Refugee Council, to which the Minister has just referred. I put it to the Minister that if people are feeling emotional it is because there is genuine anger and dismay at what the Government have announced today. On the Minister's own figures, 24 per cent. of asylum seekers are allowed to stay in this country. Will he confirm that roughly the same proportion of in-country applicants as of port applicants are allowed to stay in this country? Twenty-four per cent. is a fairly large figure.
Secondly, as regards denying asylum seekers who are appealing against a refusal any income support while they are awaiting a decision, is that not tantamount to saying that there is no effective appeal system for such people? If they cannot afford to sustain themselves, they either have to beg or possibly go back to the dangers from which they have fled.
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Thirdly, the Minister referred to other European Union countries. Can he mention any European Union country which neither provides an adequate financial basis of support for asylum seekers nor provides accommodation and other subsistence for them? It seems to me that we are going to do neither one nor the other. That leaves asylum seekers begging on the streets.
Finally, there is an answer to the difficulties that he has been describing. The problem is, as my noble friend Lady Hollis said very clearly a few moments ago, that asylum seekers are having to wait sometimes years before a decision is made about their asylum claims. That is unfair to them and it is costly for the country. What we need is not systems for determining asylum claims which are unfair and unjust but enough staff in the Home Office so that decisions can be made fairly, properly and speedily. In that way, the Government would save the money that they are talking about. But it should not be done by forcing the victims of persecution the world over, a small number of whom seek safety in this country, from having any means to exist while they are waiting for a decision about their futures.
Lord Mackay of Ardbrecknish: My Lords, I shall not repeat the figures I mentioned earlier but I do think that the noble Lord, Lord Dubs, whose interest in this subject I know well, should bear them in mind. As I said earlier, one of the problems which leads to delay for genuine asylum seekers—the 7 per cent.—is that so many come without a genuine reason for seeking asylum in this country. They simply clog up the system. We have put in more resources. We have put in £37 million more just recently. We have attempted to improve the system but it has simply been overwhelmed by more people deciding to come here. We are currently trying a fast-track system and as a result of the Asylum and Immigration Bill we will be making further improvements in trying to make the procedure very much quicker.
But there is the other problem which I mentioned when it comes to appeals. Almost everyone appeals. Few of them have real grounds for appeal, but almost everyone appeals because that keeps them in this country and on benefit for very many months. Many of them adjourn, adjourn and adjourn in order to draw out the process. That is part of the problem, which I fully accept is a serious one, when it comes to genuine asylum seekers.
With regard to denying support during the appeal, my right honourable friend the Secretary of State makes it clear in the Statement that it puts asylum seekers on all fours with United Kingdom citizens, who are not allowed benefit while they appeal. That is proper and right. What we want to able to do—should like to think that the noble Lord, Lord Dubs, would agree with us on this—is deal with the genuine asylum seeker quickly and expeditiously. The genuine asylum seeker will be able to apply at the port. He will get all the benefits while the Home Office officials decide on his case. I would hope that if we can somehow slim down the process so that the officials are not being overwhelmed by numbers they will be able to improve, if I may so call it, their decision at the first instance.

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In regard to other countries, many of our European colleagues have strengthened their asylum measures since 1993. They have taken steps along the same lines as our own. That has led to a fall in the number of asylum seekers in most of the countries of the European Union.
Baroness Elles: My Lords, with regard to what my noble friend has just said about asylum seekers in other European Union countries, can my noble friend confirm that the numbers have decreased dramatically and that the numbers in the United Kingdom applying for asylum are somewhere equal to the total number of asylum seekers in all other European Union countries? Can he further confirm that the measures taken by those countries both as to the treatment of asylum seekers at the port of entry and the kind of benefits that they are receiving show that we have been way ahead of any other European Union country in the way in which we have been treating asylum seekers up to now?
Lord Mackay of Ardbrecknish: My Lords, I thank my noble friend for her support on this matter. As she has perhaps picked up in one of my previous answers, most of our European friends have taken steps in quite recent legislation to strengthen their asylum measures. It is difficult—the noble Lord, Lord Dubs, mentioned this—to make direct comparisons because Denmark, Germany and The Netherlands generally use reception centres and hostels. The French give benefit but only for 12 months. At the end of 12 months it stops. What is interesting is that all the steps they have taken mean that they have seen a decline in the number of applicants in the past year or two while we have seen an increase. A decade ago we were running at 3 or 4 per cent. of the total number of asylum seekers in the whole of Europe. In 1994 we were up to 13.2 per cent. A look at the figures will show that in most European countries over the past year or two, as a result of their tightening their legislation against economic migrants, the graph has turned down. Ours has gone into a steeper and steeper increase.
Lord Shaw of Northstead: My Lords, does my noble friend agree that our embassies abroad do a very good but difficult job in examining the applications that arc made to them and that they give full warning to all applicants for visas as to the consequences, if those applicants are successful, of seeking to change at a later date their reason for coming to this country? If the consequences are not borne out in fact, will it not make the job of our embassies that much more difficult in the future?
Lord Mackay of Ardbrecknish: My Lords, my noble friend is right in saying that our embassies abroad, especially those in countries from which a great number of asylum seekers come, do look very carefully at applications for visas, for example. They ask people, "Why are you going to the United Kingdom?" They may say, "We are going to visit", or "for education" or "business". If the embassy is satisfied that the application appears to be genuine a visa is given. The fact is that many of the applicants do genuinely visit on
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business and then return. However, having told one story to the embassy, a lot of them get to this country and a few weeks or months later they decide to change their story.
When I look at some of the countries from which a significant number of these people come I find India, Pakistan and Ghana included among them. I really wonder whether there is justification for suggesting that people from these countries, which I believe we all consider to be reasonably stable democratic countries, are genuine asylum seekers.
Baroness Seear: My Lords, can the Minister tell us what provision has been made for hostel accommodation with feeding arrangements? If benefits are going to be withdrawn while appeals are taking place, can additional provision be made so that these people will not be sleeping and starving on the streets and begging from voluntary organisations?
Lord Mackay of Ardbrecknish: My Lords, the noble Baroness makes an accusation which has been made a number of times. I pose this question to her and to the House and get back to the figures I have mentioned. At the end of the procedure—which sometimes takes months; sometimes 18 months—and they are on benefit, many are eventually refused and they cease to have benefit. I suggest to the noble Baroness that the people who will be refused and put off benefit rather earlier than 18 months will do the same as those people who come off benefit after 18 months currently do; that is, go back to their own country or find some other way of looking after themselves.
Lord Elton: My Lords, as one who is not a xenophobe and who does not come from the right of the party and whose doctor has repeatedly failed to get a knee-jerk reaction from either leg, may I first say that I am connected with, or a member of, two organisations which are interested in refugees, but I do not speak on behalf of either and I have not consulted them. These are my own private views and they need to be said for my noble friend's comfort.
It is impossible to look at the disproportionate flow of refugees into this country and the disproportionate number of those who do not qualify as rating refugee status without concluding that something is now wrong with the system and that the Government have a duty to do something about it. It is quite understandable that the subject develops great heat and passion because anyone who has seen cases of genuine immigrant hardship, whether political or economic, cannot help being stirred to compassion.
But this piece of legislation is not directed at dealing with economic migrants, but with political refugees. There must be a hoop through which they must pass, as the right reverend Prelate put it, in order that they can he identified. Having got through all that, there remains a concern that the system will not achieve what is intended effectively in the initial stages. I was relieved to hear of the 13,000 who will continue to receive the existing treatment because they are already applicants.
One cannot help thinking that there will be some cases of confusion at the point of entry. Is my noble friend saying that that can never be taken into account

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as a result of the removal of the Secretary of State's discretion? I imagine that the total volume of immigration under this head will diminish as word gets round what the new circumstances are. That will accelerate the appeals procedure, but it will still take some time, particularly in the initial stages.
I have not floated this idea anywhere, but it seems to me that the voluntary agencies have a great deal of knowledge of the system and many of them have a pretty accurate idea of what the result of an appeal is going to be. If those agencies had the courage of their convictions and provided from their own resources—and, I agree, at great expense—support for those applicants whom they thought had a good chance of succeeding, will the Government consider refunding that money to the supporting agency in the event of a successful appeal?
Lord Mackay of Ardbrecknish: My Lords, I am grateful to my noble friend for his remarks and especially for his drawing attention to the changes that we made between the initial decisions that we took and these final regulations about the transitional arrangements. I say to him that as regards the future—and perhaps I should have answered the noble Earl, Lord Russell, on this—my right honourable friends the Secretary of State for Health and the Secretary of State for the Environment will be discussing in detail with the local authority associations how we might judge what extra impact may fall on their resources in the future. For every bit of extra impact that may fall on their resources they will have savings, as my noble friend rightly points out, as the number of applicants coming to this country actually diminishes. As he rightly said, that should mean an acceleration of the appeals procedure.
I believe that it is properly compassionate to make sure that the rules we operate are such that the genuine do get in. The current system makes it very difficult to winnow out the genuine from the bogus. I believe that the changes we have made will very much help that process, which will be to the benefit of those who actually do need our protection.

Family Law Bill [H.L.]
4.36 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
Lord Stallard Lord Stallard moved Amendment No. 1:
Before Clause 1, insert the following new clause—
GENERAL OBJECTIVES
(" . The general objectives of this Act are as follows—
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(a) to support the institution of marriage;

(b) to ensure that all practicable steps with a view to preventing the irretrievable breakdown of marriage are taken;

(c) to ensure that the parties understand the practical consequences of divorce before taking any irreversible decision; and

(d) to minimise the bitterness and hostility between the parties and reduce the trauma for the children.").

The noble Lord said: I have read and re-read the report of the debate at Second Reading of this Bill and have had discussions with people involved at the sharp end of the effects of divorce on couples and their children and other family relations. We always seem to forget that in any divorce situation there are usually two sets of grandparents. They are always left out of the discussions, but they are very much involved and concerned when a break-up occurs. That is why I have mentioned other family relations. I am certainly very concerned about some of the proposals in the Bill as it stands and that is why I am moving this amendment.
When I read the White Paper last year I admit to being cautiously optimistic about the objectives outlined in it and that is repeated verbatim in my amendment: certainly paragraphs (a), (b) (c) and (c) are verbatim. However, the Bill came as a disappointrnent. In my view it does not reflect the objectives set out in the White Paper of the noble and learned Lord the Lord Chancellor and cannot provide those conditions without suitable amendment to the Bill.
In his opening remarks at Second Reading the noble and learned Lord the Lord Chancellor quoted from the Scriptures. I said then, and I say again, that I totally respect and admire his Christian background and quotations. I am a little perturbed that, probably because of time, he could mention only St. Mark, Chapter 10, Verses 4–5 to justify the position. I would have been happier if he had continued quoting from Chapter 10 and included Verses 6 to 9. They read:
"But from the beginning of the creation God made them male and female. For this cause shall a man leave his father and mother, and cleave to his wife; And they twain shall he one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder".
When approached by the disciples in the house He said to them:
"Whosoever shall put away his wife, and marry another, committeth adultery against her. And if a woman shall put away her husband, and be married to another, she committeth adultery".
I believe that that is a fairly reasonable expansion of those particular verses in the Scriptures as regards the marriage state.
I could mention many other such references. Indeed, I counted 42 in all, all of which underline the Christian approach to marriage. I have checked with a number of friends of other religions, and many other religions have the same appreciation of the importance of the basis of marriage as does the Christian religion. From where I stand that seems a fairly good reason for taking a careful look at some of the proposals in the Bill and their possible effects.
We already know that since the introduction of divorce legislation in the last century the legal understanding of marriage has radically changed.

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Whenever there is a change in divorce legislation the institution of marriage always seems to suffer in some respect or another. From being understood and defined in law as indissoluble, marriage has become a temporary union in both law and common understanding. I read an article in the Daily Mail recently by William Oddie—it is not my usual paper but I am reading everything to do with divorce and I happened to stumble on that article—in which he stated that if the proposals in the Bill become law as they stand,
"marriage, once a solemn contract intended to last for life, will become an essentially temporary arrangement which either partner can end at his or her whim with a mere 12 months' notice".
That has worried and perplexed many people who are trying to understand the Bill. If William Oddie and many other people are right, we need to reconsider the provisions and to give guidance to those who are perplexed and worried by them.
On the question of quickie divorces, the noble and learned Lord the Lord Chancellor claimed that three-quarters of divorcing couples cite intolerable behaviour or adultery in order to get a so-called quickie divorce. However, we understand that statistics from the Office of Population, Censuses and Surveys show that only 32 per cent. of divorces—not the 75 per cent. claimed—are gained within 4 months. That makes a huge difference to our understanding of the whole issue. It means that proposals to introduce a formal wait of one year are largely irrelevant because the majority of people already wait that long, and sometimes much longer. I have met many people who have waited much longer than a year and many more who have waited longer than is necessary for a quickie divorce.
The Institute of Economic Affairs has published an excellent booklet which I recommend that noble Lords read between now and remaining stages. Last year a well-informed series of essays by experts who have thoroughly researched the subject was published. Some of those writers are the most knowledgable experts in their field—not just in this country, but internationally. The booklet is entitled Just a Piece of Paper? In his introduction the editor states:
"As divorce becomes more easily available so more people will resort to it as an escape from difficult situations: divorce becomes the first option rather than the last. With divorce available effectively on demand and without the consent of the other partner, the incentive to invest resources—both personal and financial—in a relationship is diminished. Marriage becomes temporary and provisional rather than binding and permanent. It may be used by one or both parties as a base from which to make forays into … pools of possible alternative partners, searching for something younger/richer/sexier or just nicer".
Again, we have informed opinion speaking out against the possible effects of some of the proposals contained in the Bill. It has been my contention, and that of many other people, that the Bill makes divorce easier. That is what is worrying us.
Cohabitation will become even more popular and enticing than it is at the moment. Those of us who live in the inner cities know that the incidence of marriage is reducing. There has been a huge reduction in the number of marriages. I could give the Committee statistics for the next half an hour to show the effect of
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the reduction in the number of marriages and of the increase in the number of people who are cohabiting in "relationships", "partnerships" and God knows what else rather than in marriages. Cohabitation has increased every time the divorce laws have changed. I give one statistic. In 1991▵92, 30 per cent. of single women between the ages of 25 and 34 were cohabiting. That statistic should not give us any pleasure whatsoever when we consider the effects of cohabitation on society as a whole. The fact is that cohabitation now presents a serious challenge to marriage. Indeed, I believe that a serious working party is being set up to discuss the demographic changes that could come about as a result of the increase in cohabitation and the decrease in the number of marriages.
In my view, in its present form the Bill does little to support the institution of marriage. That is why I have made one of my objectives in the amendment,
"to support the institution of marriage".
I believe that the Bill should support the institution of marriage more strongly and firmly than it does.
In pushing mediation as an option before any attempt has been made to reconcile couples or to bring them together before divorce proceedings are initiated, the Bill fails to take the necessary steps to ensure that all practical measures are being taken to prevent the irretrievable breakdown of a marriage. That is another objective. The Bill will fail again if it does not provide a period of reconciliation before mediation. As I tried to say on Second Reading, there is a huge difference between mediation and reconciliation. That difference is stark in both the White Paper and the Bill. Mediation is for the future. It assumes that the marriage has ended and that the couple are splitting up. It will deal with questions such as, "Who gets the video? Who gets the house? What about access to the children?" That is mediation as envisaged in the Bill.
I believe that a period of reconciliation before that is much more important. Many couples might decide to separate on the basis of a row or a series of rows but could be spoken to and guided, provided that the right sort of guidance is available. That is where the money should be spent. We are spending billions of pounds—we are certainly spending millions—on teaching children in sex education classes how to fit condoms and how to deal with various problems, but how much are we spending on teaching children how to communicate with each other, how to handle parenting and marriage and how to discuss all the problems that they will definitely experience? Children need to be taught such things and there are various organisations that could teach them. The Churches could do so. There are many people who could help to reconcile couples who are having difficulties with their marriage. All that we need are the resources. I am saying that we could spend a little money and save a lot if we were to spend some money in that way rather than on the social security benefits that are often needed when a marriage ends.
The objectives that I have outlined cannot be met unless there is a period of some months in which to concentrate on reconciliation. It is only when

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reconciliation has failed completely that mediation and counselling should take place. I have no doubt that a period of reconciliation will help to minimise bitterness and hostility between the parties. Reconciliation is therefore important even if it achieves no more than that. Even where there is ultimately a decision to divorce, if it is an amicable decision and there is no hatred or animosity that will help to minimise the trauma and difficulties for the children affected by it. Therefore, reconciliation is extremely important. Indeed, in my book, spending time on reconciliation should be a top priority.
More attention should be paid to the studies that are being carried out into the effects of divorce on children who are left behind in a one-parent family knowing that their other parent has disappeared. There have been studies—mainly the Oxford study—which have proved that sometimes, not always, it is more difficult for a child to grow up in a one-parent family than in a rocky, unhappy marriage. It is more traumatic when one parent disappears for good. We should pay a little more attention to such research and include some of it in our deliberations on the Bill.
The Bill should be judged, in our discussion on amendments, according to whether it meets those general objectives. I should like the general objectives set out at the beginning of the Bill. We can then judge the Bill to see where and when it falls short of those general objectives. If it does not meet them, I know that the noble and learned Lord the Lord Chancellor will consider suitable amendments for submission on Report. Those who will be expected to implement the Bill, and those directly involved in marriage problems and breakdowns, but who will seldom be aware of our discussions or aware of the various clauses, should know the aims and the priorities which I have outlined in the amendment.
I do not profess to be a lawyer, or to have any special legal knowledge, but neither do millions of other people who will be affected by the Bill. None of them is a lawyer. It is up to us as legislators to ensure that the law will be clear to them and clearly understood by those who will be mediating, counselling and so on. I hope that the amendment will be accepted eventually, and that some guidance will be given right at the beginning of the Bill. There are precedents for such guidance. Some guidance was given in the Children Act 1989 and in the Education Act 1993. I hope that the noble and learned Lord will give the amendment his most serious consideration and reply to it on Report. I beg to move.
Baroness Young: I support the amendment which was so ably moved by the noble Lord, Lord Stallard. It is based of course, as he said, on the principles which were set out in the White Paper. We would all agree that they are unimpeachable objectives and ones that we would all like to see carried out.
Nearly every Member of this place who spoke on Second Reading wanted to see marriage buttressed. To set out the proposed statement at the start of the Bill will, as the noble Lord said, enable us to look at all the subsequent amendments in relation to those general principles to see how far we are standing by them. That
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is something at which we shall look. So I hope that when my noble and learned friend comes to consider all these matters, as he said on Second Reading he would do, he will feel that this is an amendment that he can accept.
There are four unimpeachable objectives set out in the amendment. It is good to say that we want to minimise bitterness in divorce, but one of the objectives at which we shall have to look is to recognise that it is better still to save the marriage in the first place, because the damage done to children in the course of a divorce is much longer lasting than the damage done by quarrelling parents. All the modern research shows that to be so. It is an important point onto which we should hold. We shall be coming to later amendments which deal with those points so I shall not elaborate on them now.
I have been asked by the right reverend Prelate the Bishop of Chester to say that he supports not just this amendment but many of the following amendments. He hopes very much that my noble and learned friend will look at them carefully as we debate the various amendments to the Bill.
Lord Irvine of Lairg: I could be persuaded to favour this general objectives clause in this Rill, although from a different standpoint from that of my noble friend Lord Stallard; broadly speaking, so that it can be improved upon and particularly in the area of encouraging reconciliation. In my view, in its present form the Bill passes the standards, the objectives set by the amendment.
I know that parliamentary draftsmen sometimes say that they dislike broad purpose clauses, but it is sometimes wise to have them, as Parliament has recognised. The noble and learned Lord on the Woolsack will himself recall that he thought it right to include a broad purpose clause as Section I of his Legal Aid Act 1988.
The great merit of my noble friend's general objectives clause is that it will dispel misunderstanding about the objectives which the particular provisions of the Bill aim to further. My noble friend's first objective is to support the institution of marriage. That of course has my full support and would have the full support of the Committee, but this is a Bill about whose purposes there is great misunderstanding, especially on the part of those who are trying to extend from a year to 18 months or more the mandatory period for reflection and consideration.
The first point is that the Bill does not, in practice, make divorce easier. On the contrary, in its present form, providing as it does a mandatory year for reflection and consideration, it strengthens the institution of marriage much more than does the present law. I yield to no one in support for the institution of marriage. Marriage should not lightly be undertaken nor lightly set aside, but when judging legislation brought before us, the first base is to take a hard and realistic look at what it will replace.
Today it is the fact that about 75 per cent. of divorces are quickie divorces, granted within a few months of the divorce petition. The mandatory period of a year for

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reflection and consideration imposed by the Bill therefore means in practice that in 75 per cent. of cases divorce will be substantially delayed. I urge the opponents of that change—those who would reinstate fault-based divorce and exclude divorce on any other ground, or those who would lengthen substantially the one-year period for reflection and consideration to 18 months or even more—to take on board how the current divorce laws work in practice.
The truth is that divorce today is attended by no greater formality than renewing a driving licence. It is all done through the post. Typically, the petition will be based on adultery or unreasonable behaviour. The petitions are never, except perhaps in a handful of cases throughout the country, defended at any trial of the allegations. What happens is that the petition is sent through the post to the local county court. Then a copy is sent through the post to the other party by the court itself. The other party is invited to indicate whether there is to be a consent or a defence. In the overwhelming majority of cases, there is consent.
There are two basic reasons why that is almost always so. When matters have reached that stage, the parties appreciate that their marriage is dead. They recognise the futility of prolonging the agony. Life cannot he breathed into a dead union. In practice, the Legal Aid Board will not grant legal aid to defend a divorce petition, as the noble and learned Lord will confirm. That would be to apply public funds in a futile exercise.
Once the consents come in, the district judge of the County Court will list two dozen or so cases for 10.30 in the morning for the pronouncement of divorce decrees. He will intone that a decree nisi of divorce is pronounced in all the cases in front of him that morning, en bloc, in a single sentence. He will not even terminate each marriage separately. That is how our courts at present behave in relation to the institution of marriage when setting marriages aside.
Six months after pronouncement of the decree nisi that decree will be made absolute and the marriage will be terminated. The interests of the children are not addressed until this short six-week period. In theory the court must be satisfied that the arrangements for the children are satisfactory or, a lesser test, are the best that can be devised in the circumstances.
Perhaps I may take a moment to describe to the Committee how this investigation is judicially conducted. One morning, at about ten o'clock, approximately two dozen cases will be listed for the district judge to consider the parties' arrangements for their children. So 48 people will turn up legally unrepresented. They will sit altogether waiting their turn to be called in to see the district judge who will sit in his private room. The nearest analogy is waiting one's turn in the family doctor's surgery. On average, it takes about five minutes for each couple. In essence, the judge is told what the parties have themselves agreed and that, in practice, is what the judge accepts. I am not criticising the judges; far from it. What I am speaking about is real life. A mandatory year for reflection and consideration
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during which mediation takes place is surely so much more seemly than the conveyor-belt process which I have described.
The Bill is supportive of the institution of marriage. There will be no more quickie divorces but a year for reflection and consideration during which the mediation process will follow its course. There is a central point about mediation which the mediators concerned understand fully; that mediation is not about reconciliation. The mediator is not a reconciliator. He is a mediator of proposed solutions for the parties to try to agree; parties who have agreed that they must part.
That, we can assure the mediators, we recognise, but it brings me to the second of my noble friend's objectives which is to ensure that all practical steps with a view to preventing the irretrievable breakdown of marriage are taken. That very proper objective, in the name of saving marriages wherever possible, can be fulfilled only if the Bill recognises in the clearest terms the public interest in promoting reconciliation. It does not. On the contrary, by Clause 7(5) and (6) it penalises attempts at reconciliation by suspending the mandatory period of a year while reconciliation is being attempted. It operates as a serious disincentive against attempting reconciliation. For that reason I have brought forward Amendment No. 40 which is designed to encourage reconciliation. I do not, of course, attempt to speak to that amendment now.
My noble friend Lord Stallard, in his notable speech on Second Reading, drew attention to the sparse reference to reconciliation in the Bill and to the failure of the Bill to encourage reconciliation positively. His second objective will be better fulfilled if there is some statutory underpinning for reconciliation. It must be accepted that people cannot be compelled to attempt reconciliation.
Let us look at my noble friend's third objective which is to ensure that the parties understand the practical consequences of divorce before taking any irreversible decision. I believe that that objective is met by the Bill through its provisions for mediation. The mediation process will bring home to the parties what divorce will mean for them. They will be free, with this knowledge, to pull back from the brink. Disincentives to trying to become reconciled should be removed but no law on earth can compel them to live together. Although it may not in practice be necessary, there may be a case for making my noble friend's third objective a statutory duty on mediators. He may wish to consider that.
I turn to my noble friend's fourth objective which is to minimise the bitterness and hostility between the parties and to reduce the trauma for the children. I wholly endorse that objective but I firmly believe that to extend the one-year period to 18 months or more would exacerbate, not minimise, the bitterness and hostility between the parties and the trauma for the children. That is the test by which the one-year period is to be judged. This morning's press is replete with stories that the noble and learned Lord is ready to yield and extend the period. I hope that however these leaks have been inspired—all the articles say Government sources—they are leaks in which there is no foundation.

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We gave the noble and learned Lord's Domestic Violence Bill bipartisan support. We lament that in this Bill the noble and learned Lord has watered down the domestic violence provisions in order to meet spurious objections from a section of his own party; a section as uninformed as it is unrepresentative. His earlier domestic violence provisions, which he thought were right, as did I, were agreed between the parties and for our part we will not depart from that agreement. On the contrary, we will try to return some steel to his soul so that he will feel able to continue to agree with himself.
I turn to the one-year period. I am confident that the overwhelming majority of my colleagues are satisfied that the period of one year is right. The broad bipartisanship which I would hope could accompany the passage of a Bill of this kind—although I recognise that it is a matter for individual conscience—would be severely prejudiced were the noble and learned Lord to yield to the attempt to extend the period of one year. We could not accept that. I therefore urge the noble and learned Lord to reflect on the attitudinising that accompanies the demand that the year be extended to 18 months or beyond. The affection of rectitude to no sensible purpose is always to be abhorred.
What is the practical point of extending the year to 18 months? A year is quite enough for reflection and consideration; it is quite enough for mediation. One cannot compel people to live in a loveless union; one cannot breathe life into what is dead. The Government's proposals at paragraph 4.13 were right. They state that a longer period than a year would increase distress and that:
"it would act as an encouragement to walk out of the marriage, form a new relationship, and take on new family responsibilities before fulfilling the obligations and responsibilities towards the previous marriage and children. A longer period would also result in greater distress to the children, and increase their insecurity about arrangements for their future".
I agree with every word of that.
The children of relationship number one surely want to know where they are; they do not want delay to no purpose. No law on earth will prevent people making new relationships and having children within them. Those children will be innocent as will the children of relationship number one. The children of relationship number two also have their legitimacy to be considered.
As a matter of principle, I believe that my noble friend's objectives are well judged. They dispel misunderstanding. They are sound standards against which to judge the particular provisions of the Bill. As matters of principle, they have our support.
We are legislating about the lives of people and innocent children. It is rationality that should inform our debates, not attempts to claim a spurious, moral high ground—an imaginary world not inhabited by those for whom we must legislate. Above all, we must legislate in the spirit of realism and not moral romanticism.
The Lord Bishop of Oxford: On this Bench we firmly support the proposed objectives set out in the amendment. The noble Lord, Lord Stallard, has
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expressed the worry that the Bill will make divorce easier. That is an understandable fear. However, the Bill as it stands does provide a whole year for reflection, consideration and reconsideration. That is a good period of time in which to consider such very serious matters.
Further, the Bill will provide the opportunity for mediation. With its less hostile and adversarial approach, mediation is conducive to getting the couple to see whether there is anything savable about their marriage. There are also one or two further amendments that have been tabled, with which we shall deal later, which suggest that we could make free marriage counselling available so that, if there is any possibility of saving a marriage, every opportunity will be provided to the couple to do so. We firmly support the objectives set out in the amendment and very much hope that the noble and learned Lord the Lord Chancellor will be able to accept it.
5.15 p.m.
Lord Stoddart of Swindon: I support the amendment tabled by my noble friend Lord Stallard. Its objectives, as my noble friend said, are ones that we can all understand and would wish to see. However, I disagree with my noble friend on the Front Bench that the Bill is conducive to the institution, and the continuation of the institution, of marriage. Indeed, I believe that it is anything but that.
The first question that we must ask about the Bill is: where has the demand for it come from? Has there been great public demand? Have we read articles in the press demanding easier divorce? Have we heard, even from the Church, that the existing divorce law needs amending? I must say that I have not heard much of that demand. Yet we have this Bill, and one wonders why.
I have to repeat that I believe the Bill is not about saving marriages. I believe that it will send the wrong message to the nation, to people and to married couples; namely, that under the legislation it will be much easier to get divorced. Why do I say that? Well, first, we have the provisions for notice to be given that a marriage is to end by one of the parties, not both of the parties. People will then be told that once such a notice is given, "Although we would like you to attend a mediation session, after one year the divorce will be operative." If that does not tell people that divorce will be much easier and that marriage does not count for much, then I do not know what does.
Further, the removal of fault will send a different sort of message to that sent previously. It will mean that all the faults that we have understood which might cause divorce and create difficulty in marriage are no longer faults. We will be telling people that adultery is no longer a fault; in other words, to cheat on your marriage—for that is what it means—is no longer a fault. Is that really the message that we want to send out to the nation from this House and from Parliament? Frankly, I do not believe that it is.

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I am surprised that the noble and learned Lord the Lord Chancellor, with his background, has come forward with this sort of legislation. We all know that the noble and learned Lord is a good man; indeed, a very good man.
Noble Lords: Hear! hear!
Lord Stoddart of Swindon: Unfortunately, I feel that the noble and learned Lord is a good man who has fallen among an assorted bunch of anarchists and liberals.
Noble Lords: Oh!
Lord Stoddart of Swindon: Those people appear to have convinced the noble and learned Lord that the proposals in the Bill are conducive to strengthening marriage and the family. As I said, I do not believe that that is true.
The Government have been saying over a long period of time that they support the family and marriage, yet all their actions belie that claim. For example, the taxation system—on the pretext of achieving equalisation between the sexes—has progressively worked against marriage. Everyone in the House knows that that is true. The freezing until the last Budget of the married man's allowance and reducing its value from 25 per cent. to 15 per cent., the refusal to allow the transfer of the personal tax allowances between spouses and from one working spouse to a non-working spouse—thus failing to assist those wives who wish to do so to remain at home and look after their children—has actually been destructive of the family.
My noble friend said that that argument is nonsense. Of course, it is not nonsense. A burden has been put on the family that almost forces both spouses to go out to work. It is a system designed to encourage women to go to work rather than remain at home and look after their own children. Indeed, as we all know, the social security system itself favours the single parent in many ways, even to the extent that it is financially more favourable for fathers and mothers to live apart. No one can deny that that is happening under the present system. The impression has been given to women that they do not need a stable relationship with the father of their children as the state will provide. That has all been done under this particular Government who say that they want to retain marriage as a strong institution. Of course the impression has been given to fathers that they need not worry too much because the state will pick up the tabs.
The social consequences of the single parent family—poverty, crime, deprivation, lack of education and unemployment—are all evils which affect the children of single parent families along with the fiscal and social policies of the Government which have all exacerbated the problems. Now we come to the position of easier divorce. In spite of all that has happened up to now we send out the message that divorce will be made easier.
The Bill does away with fault, as I have already mentioned. I hope that the right reverend Prelates will listen to this. If one does away with fault, one actually encourages the faults one is doing away with. I am not
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at all sure that that is the sort of thing that the Church of England in particular should be supporting at the present time. Indeed, I am surprised that the Church supports this Bill. It is a long time since I have been to a wedding service in a church but I rather think that that service will have to be rewritten. It will no longer be enough to say to the couple who are marrying that they must love and cherish one another in sickness and in health until "death do us part". That certainly does not apply under this Bill. The priest in charge will have to say, "You will cherish one another until one or other of you makes an application for a divorce under Section 1 of the Family Law Act 1996".
I also believe we shall have to rewrite the 10 commandments. I believe that one of the 10 commandments states,
"Thou shalt not commit adultery".
However, under this Bill adultery will no longer apply. Yet the right reverend Prelates and the Church of England are supporting a Bill which is doing away with one of the 10 commandments. I find that most amazing. I sincerely hope that as this Bill proceeds through its Committee and other stages they will re-examine their attitude towards some of the amendments.
I am sure that my noble friend will support this amendment. I believe this amendment will be accepted and I am glad about that because it will establish some principles which we need to establish. However, unlike my noble friend on the Front Bench, I shall certainly support amendments which give a much longer time for reflection and reconciliation. Mediation simply is not good enough. That merely tells people how they can get divorced with as little trouble as possible. That is what mediation in this Bill means. I want more time—
Lord Elton: Will the noble Lord give way?
Lord Stoddart of Swindon: I was just finishing but I hope that the noble Lord will continue.
Lord Elton: If the noble Lord is finishing his remarks, I would be the last person to delay him.
Lord Stoddart of Swindon: As we are in Committee I have no doubt that the noble Lord will make his own points in his own way and if I wish I can then interrupt him. We are always of course pleased to hear what he has to say. As I said, I shall certainly support some of the subsequent amendments which I believe will improve this bad Bill.
Lord Ashbourne: The purpose of this amendment is to buttress the institution of marriage. The preface to the White Paper Looking to the Future—Mediation and the ground for divorce issued in 1995 in connection with this Bill suggests that buttressing marriage is one of the central planks of government policy. This Bill, as drafted, will in no way achieve that aim. This amendment sets out in a helpful and positive way objectives for Part I of the Bill including supporting marriage and preventing marital breakdown. As the noble Lord, Lord Stallard, said in his introduction, both

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the Children Act 1989 and the Education Act 1993 also include general objectives. I commend this amendment to the Committee.
The Earl of Onslow: I was reading the Book of Common Prayer. That book asks what is the object of marriage. It states,
"First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord …Secondly, It was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled …Thirdly, It was ordained for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity".
I have read that passage out for the right reverend Prelates because none of them now knows the Book of Common Prayer as they use the modern stuff, but he that as it may.
It seems to me that the Book of Common Prayer sets out exactly what marriage is for. It is time that someone supported my noble and learned friend on the Front Bench. As I understand it, this Bill will take the fault out of divorce but make divorce harder.
Both my parents were divorced and I know that they had to go through a charade. I know that their divorce was relatively bitter. I know many friends for whom the present system does nothing other than make an unpleasant breakdown of marriage infinitely worse. We are not trying to condone divorce in this Bill and we are not trying to undermine marriage. What my noble friend is trying to do is to make sure that when divorce occurs—which she has made more difficult—it will be less painful. That seems to me an ultimately civilised way for people to behave. For the noble Lord who has just spoken to say that the Bill abolishes the crime of adultery—I nearly said something quite rude—bears no relationship to reality whatever. We must have a civilised divorce procedure which makes the maximum appeal to reconciliation and mending. However, the noble Lord opposite was correct when he talked about the lunacy of the tax and benefits situation, but that is another story. I shall support my noble friend.
Lord Rawlinson of Ewell: It is because the noble Lord, Lord Irvine of Lairg, ranged so broadly over the Bill when speaking to this amendment that I shall attitudinise now. I think that was the expression he used. I do that because of the general review that seems to be taking place about the Bill as it is at present. I believe it was Lord Palmerston who said that when a government do not have much of a programme they go in for a little law reform. We must acknowledge the courage of the present Administration to have decided to tackle such a controversial subject. Obviously they are not in the least concerned by exaggerated media reports about divisions among their supporters. They are brave to tackle this matter at this particular time in what may be the final Session of this Parliament. My noble and learned friend has shown great courage and, with great respect, I pay tribute to him for that. However, he must appreciate how controversial this matter is. It is a controversial matter to those of us who would normally support him in other things.
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It is said that this Bill originated with the Law Commission which produced a document entitled, Family Law The Ground for Divorce.To me, that is not a recommendation. Law Commissioners are technocrats. They have no role in making or recommending decisions on ethical and moral judgments. They are an unrepresentative quango and exist to make technical improvements in branches of the law and to put into law what Parliament has decided in principle. That they are unqualified can be demonstrated by the fact that one of them, now a member of the High Court Bench, made that extraordinary statement about marriage.
It is not for people such as Law Commissioners to decide how marriage should be ended. The law of marriage affects status as well as contract. It affects position as well as rights. It is ignorant of some commentators to regard it as a matter which applies purely between individuals. A noble Lord opposite spoke about hardship in particular cases. One has to look beyond that when dealing with the law of marriage. It affects the principles which govern not only relationships between individuals but also the whole basis of society and thus the interests of the state.
There is an ancient aphorism which everyone in this House will know: hard cases make bad law. That is where the elimination of fault becomes so important. The ending of marriage alters status. The tearing up of a contract freely entered into at the suit of one party is only acceptable if that person has suffered due to the fault of another. Above all, the law has to ensure that any party who has not flagrantly broken a contract receives justice.
I only make these comments now because of the wide range which was introduced into the debate on this amendment by the noble Lord on the Front Bench opposite who, with a certain degree of hauteur, seemed to regard those of us who do not agree with him as attitudinising. Every attempt to change the law in this field has been marked by total error in prognostication. Everyone has got it wrong, the Divorce Act 1969 with its quickie divorces worst of all. However, many of us believe that the flagrant fault principle, although at times it involves an element of charade and of deceit, has the merit of ensuring in principle that the offender cannot get what he or she desires against the wishes of the other party to the contract. Nor do I understand how one party can state that a marriage has irretrievably broken down unless that party can establish a flagrant breach by the other.
It is therefore with some regret that I believe that this piece of legislation in its present form does not do what my noble and learned friend on the Woolsack hopes, intends and believes that it will do. It is governed by no principle. One must have that principle of fault. That is what distresses me about the legislation as presently drafted. Therefore I believe that it is baleful in its effect.
Accordingly, I hope that the principles set out in the amendment will be introduced into the Bill. They set forth clearly and straightforwardly what the Bill is

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intended to achieve. Then it is up to us with the amendments which follow to change the Bill to make it achieve what the amendment hopes it will achieve.
The Lord Bishop of St. Edmundsbury and Ipswich: This Bench has suffered some attack, in a lighthearted way, in the course of the debate. Perhaps I may say that the Book of Common Prayer is well known to us all. Indeed, I was married by it 40 years ago, as was my wife, to whom I am still married. It expresses the theology of Christian marriage extremely well. I should add that the alternative service, which is in far greater demand now although both are available, copes with the second reason for matrimony better, speaking of it not simply as a remedy for sin but speaking of sexual relationships as a means of expressing love. However, that point is on one side.
Nobody in the Church would wish to see marriage or family life in any sense undermined. It is one of our steady criticisms that the amount of support which is given to marriage and the amount of work that goes into preparation for marriage is far less on the side of the state than it is on the side of the Church. Over the years we have put immense resources into preparation for marriage and supporting marriages when they are entered into.
I do not believe that the Bill is about that. It is not a Bill which attacks marriage. It tries to make sense of situations in which marriage breakdown has taken place. I do not think that anyone believes, and certainly no one on this Bench believes, that the present law is adequate to make sense of that.
Perhaps I may concentrate for a moment on the issue of no fault. Of course there is fault in the breakdown of marriage, but is the fault only on the part of one partner? That appears to be what is indicated in the present law. Clearly, none of us believes that that is true. Marriages always break down by the fault of both. The fault may be, and often is, adultery. It may be adultery on both parts or on the part of one partner, but that adultery may itself have been caused by earlier failure to listen or to communicate.
Baroness Gardner of Parkes: I thank the right reverend Prelate for giving way. I believe that it is time to remind the Committee that this is not Second Reading. We are speaking to Amendment No. I on the Marshalled List. I understood that the debate went far wider than is usually the case at Committee stage in view of what the noble Lord said from the Front Bench opposite, and therefore I sat quietly while we had a Second Reading speech on the grounds that it was in response to what was said. However, now we have another Second Reading speech.
The purpose of our presence in the Chamber today is to consider the amendments on the Marshalled List. We are not discussing the no fault issue at this time. There will be plenty of opportunity to do so later when the appropriate amendments are dealt with. I thought that
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perhaps the right reverend Prelate was not familiar with our procedures and that it might be helpful to mention that.
The Lord Bishop of St. Edmundsbury and Ipswich: I thank the noble Baroness for that intervention. I understand the intention behind it. I simply sought to answer the point raised on the Benches opposite on the matter of no fault. Perhaps I may say simply that fault clearly exists on both sides, but to define one particular fault as the reason for the breakdown of a marriage without giving an opportunity for mediation to take place, as under the present law, is not in my view a way of supporting marriage.
The Earl of Perth: I want to apologise for not being present at the moving of the amendment. Having said that, I recall that at Second Reading when the noble and learned Lord the Lord Chancellor introduced the Bill, he said, first, that he believed that marriage was divinely appointed; and secondly, that the Government would do nothing to undermine it. I support him wholly on the first of his beliefs. How could I do otherwise when I have had the great good fortune of having been married for more than 60 years—and long may it continue!
However, on the second point that the Government want to do nothing which will undermine marriage, it is my fear—and many of those who have spoken have expressed the same fear—that that is exactly what will happen. I am deeply grateful to the noble Baroness, Lady Young, for having drawn attention at Second Reading to the fact that the 1969 Act was introduced with the intention of making divorce more difficult, except in certain circumstances where it would he less painful. What has been the outcome? We well know that numbers have increased from 50,000 at that time to 160,000 at present. In other words, while the intention was good, the result was disastrous.
It is my fear and belief that unless we consider all the amendments with this new clause guiding us, the same will happen again. Therefore, I wholly agree with the proposed new clause. It gives us the opportunity to stress reconciliation rather than mediation.
I recognise how difficult it is not to make a Second Reading speech; I seek to avoid that. I support the objectives of the amendment and I believe that they are valuable because they will enable us to refer to them again and again in the changes we seek. That is not to make divorce easier, but somehow to make it less painful. I fear that as the Bill stands it does not achieve these things.
Lord Simon of Glaisdale: I hope noble Lords will excuse my addressing them in an eye shade. I believe that I am not covered in the technical sense as understood by parliamentary practice.
I did not intend to intervene on this debate. I do so to recall the real purpose and value of this kind of amendment; and in response to the two main points made by the noble Lord, Lord Irvine of Lairg. In a perfect legislative world every provision of a statute would be immediately plain and could not be disputed. It would be in no way obscure or ambiguous. But we do not live in a perfect legislative world. In fact, although I

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dislike it, it is an extremely well drafted Bill. However, there are bound to be cases where the meaning might be challenged from two opposing points of view. When that occurs, it is valuable for the courts to have an indication of the leaning that Parliament intends them to have in deciding between the two disputed assertions as to meaning. That can either be done in the Long Title—I personally prefer that—or, as the noble Lord, Lord Stallard, proposes, by a clause of this kind, which has abundant precedent. So much for the value and purpose of the amendment.
The noble Lord, Lord Irvine, made two points. First, he manifested his clear dislike of the present law. That was taken up by the right reverend Prelate. Those of us who dislike the present Bill have no liking for the present law. Most of those who oppose the Bill opposed the 1969 Act. Many of those who now support this Bill were supporters of the 1969 Act. It is that which is objected to, and rightly so. Moreover, the quickie divorce on which the noble Lord, Lord Irvine, spent some time, and on which he spoke cogently, was purely and solely the invention of the government department which is now issuing a Green Paper denouncing it and denouncing the 1969 Act. The quickie divorce does not depend for its abolition on the passing of this Bill. The measure can be got rid of in exactly the way that it was brought into existence; namely, by regulation and direction of the Lord Chancellor's Department.
Secondly, the noble Lord put down a strong marker, apparently in view of reports in this morning's press, about the lengthening of the period of one year to possibly 18 months. He was thereby anticipating an important debate which is still to come and on which there is much to be said. At this stage I say only this. If the present period of a year is what is required for mediation, then if we are to have reconciliation procedures—as most of us want, and as the noble Lord, Lord Irvine, wants—then presumably some extra time is needed to aaccommodate those reconciliation procedures. That being so, in view of those two matters and of the proper purpose of the amendment, I venture to support it.
5.45 p.m.
Lord Meston: I restate the support from these Benches for the Bill. I agree completely with the remarks of the noble Lord, Lord Irvine of Lairg, and the noble Earl, Lord Onslow. It is by reference to the amendment helpful to have a statement of objectives at the beginning of any legislation, and this Bill is no exception. I comment only that the amendment does not address the objectives of Part III of the Bill. That is the important part dealing with the rationalisation of the law relating to domestic violence.
As a practitioner in the field, I can only endorse the clear description of the existing procedures for divorce given by the noble Lord, Lord Irvine. Present divorce procedure is a paperwork exercise. It can be a very quick exercise. and, frankly, sometimes an undignified exercise. The only point at which I question what he said is that I am not entirely sure that nowadays any attendance at the court for consideration of the
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arrangements for the children is necessary. My observation is that under the existing regime the vast majority of divorcing couples, for all the relative ease of the formal process, find divorce and its consequences painful; and the vast majority of them do not undertake divorce lightly—more so if there are children to be considered. My observation is that where there are children they try harder.
Quick divorce does not seem to be possible under this Bill—let there be no mistake about it. I suggest that it is arguable, and indeed doubtful, whether an easier divorce process, if there is to be one, would encourage cohabitation outside marriage. Leaving that question aside, what is certain, I suggest, is that making divorce more difficult will not encourage marriage.
I regard the Bill as supportive of marriage, as the Law Commission intended. I question the description of the Law Commission as mere technocrats, Its report in this area was thoughtful, thorough, and began in this way:
"There is widespread concern about the current prevalence of divorce in this country and the consequences that this can have both for the couple concerned and for their children. There is also concern that the present divorce process may be making these worse".
The Law Commission went on to say:
"The present law is confusing and unjust. It now fulfils neither of its original objectives. These were, first, the support of marriages which have a chance of survival, and secondly, the decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead".
I regard the Bill as fulfilling the objectives set by the Law Commission and we continue to support it.
Lord Elton: The noble Lord, Lord Meston, has demonstrated that the exclusion of Part III of the Bill from the list of the objectives in the amendment renders it defective. I rise to ask the Committee from the heart to stop behaving as though the law alone will determine the divorce rate. If Members of the Committee think that by passing legislation of any kind they will improve matters significantly, they delude themselves. There is far more to be done in our society to rescue it from what is happening than mere legislation. So can we not make that a principal argument?
The Lord Chancellor: I wish to take the opportunity not to make a Second Reading speech—which I shall try to avoid—but to answer two questions put to me about matters that were in the public domain this morning.
My position as regards the Bill is that I have brought it forward because I regarded it as important to do so in the discharge of the responsibilities of the office which I presently hold. The reason I brought it forward is that it has been brought to my attention by many of those who work in the field that the present law of divorce has a very detrimental effect on the children affected by it. I regard it as vitally important in the discharge of my responsibilities that I should put before Parliament the best law that I can suggest as a Bill, in order that those matters may be addressed. The ultimate responsibility for what goes on the statute book will, of course, be that of Parliament as a whole.

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My second point is this. My attitude to the discussions in Parliament is that the Government's policy was reached after careful consideration, after the Law Commission report. I would not wish to describe the law commissioners as technocrats. I regard those who are selected for that important office as having wide experience which is valuable to Parliament. It has been the subject of many compliments by distinguished Members of your Lordships' House over the years since I have been here. The Law Commission report came after consultations and after the Law Commission put out a working paper in 1988. The Law Commission report was in 1990.
As my noble and learned friend Lord Rawlinson said, I appreciated fully that this is a controversial matter. Frankly, it was controversial for myself. I found it extremely difficult to know what to do. The noble Lord, Lord Stoddart of Swindon, kindly referred to my background and paid other compliments which are too generous. I found it extremely difficult to know what to do, but I thought the right action was to issue a Green Paper and consult generally on the basis of what the Law Commission had proposed, with a good deal of flexibility in the Green Paper about, for example, the period for reflection. It was not immediately self-evident to me what the period should be and the Law Commission itself pointed out that different people had different views on it. So the Green Paper reflected that kind of consideration.
We consulted widely and all noble Lords had an opportunity to respond. Members of the Committee individually will know to what extent they responded. In the light of the consultation, the Government, reviewing all the responses that had come in, concluded the policy which is in the White Paper. That policy attempts to achieve the general objectives which are set out in the amendment of the noble Lord, Lord Stallard.
So far as I am concerned, the position is that the Government's policy as regards the period remains at one year. I have indicated that I shall listen carefully to all that is said in Parliament, not only on this subject but on every other aspect of the matter which I regard as of essential importance to the social fabric of our society.
The other point I wish to make is in a way subsidiary. I should like to attain the greatest possible consensus on these matters consistent with the principles that I have enunciated. For that reason I will give the closest attention to everything that comes from Members of the Committee.
As regards the proposals in the amendment, in my view the statements, so far as they go, are unexceptionable. The noble Lord, Lord Irvine of Lairg, suggested to me earlier that I might agree with myself—as if that was a good thing to do. On this matter, the objectives were set out in the Government's White Paper and therefore I agree with them wholeheartedly. It is possible to improve matters and in other respects I am content to disagree with
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myself where I have seen that an earlier view of mine was not substantially correct and can be improved upon. That is the purpose of these debates at Committee stage.
I do not wish to go into all the matters raised by Members of the Committee. So far as they reflect on the earlier parts of the Bill, I entirely agree with the objectives. By reference to them, I shall be happy to test all the subsequent amendments.
As the noble Lord, Lord Meston, pointed out in his observations, the amendment does not include a reference to Part III of the Bill. For obvious reasons, the White Paper did not deal with that and therefore change is required. I noticed that the noble Lord, Lord Stallard, departing from the earlier form of his amendment, dropped the final objective which was in the White Paper. It concerned minimising costs to parties and to the taxpayer. I regard that also as an important objective because unnecessary costs spent on the divorce will mean resources being unavailable for the support of the family unit affected or of subsequent relationships. Those are important additions which might be made.
The noble Lord, Lord Irvine of Lairg, mentioned that there is sometimes difficulty about the incorporation of such a clause because of its effect. I have taken preliminary advice about it but the Committee would wish it to be considered more fully in relation to the final formulation. Apart from anything else, Part III has to be taken into account.
So far as they go, the general objectives as stated are entirely correct in my view and I endorse them. I have no difficulty whatever in incorporating them in the Bill, assuming that I am advised that it is wise to do so in the full context of the Bill. Whether or not that is advisable, I am greatly obliged to the noble Lord, Lord Stallard, and others who put their names to the amendment for putting forward the objectives. I am content that all the later amendments to the Bill should be judged by those objectives.
It would be quite wrong for me to go into the detail of points raised in what have been described as "Second Reading speeches". We shall come to all that in due course. I simply indicate my view about matters at the moment. If the noble Lord, Lord Stallard, is prepared to withdraw the amendment, I have no doubt that we can return to whether or not it should be altered or formally incorporated into the Bill at a later stage.
Lord Stallard: I am grateful to the noble and learned Lord for his response. I fully appreciate that he cannot be expected to deal with everything on the hoof and, if he has second thoughts on anything, I look forward to his further agreement on Report.
He referred to paragraph (e) of the original amendment which I believed would be covered by other amendments and dealt with in far more detail than we could apply to it now. I therefore left that matter for future amendment. I hope that we shall then be able to discuss it constructively. In the meantime, I thank the noble and learned Lord very much for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Clause 1 [Divorce and separation]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 2:
Page 1, leave out lines 11 and 12.
The noble and learned Lord said: Before moving this amendment perhaps I may make two observations. First, how convenient it was that a preliminary Marshalled List was prepared for us yesterday by the Public Bill Office. Secondly, I should like to indicate the main classes of amendment that I have presumed to table. The first are purely probing, as indeed all are in a sense, in that I wanted to raise some novel points and hear the views of the Committee in relation to them. On none do I intend to ask the Committee to divide. Some are more strictly probing, and seek to discover exactly what is in the mind of my noble and learned friend.
The second group of amendments is designed to mitigate the injustice and hardship inherent in a measure that provides for unilateral repudiation of the other spouse, particularly hardship and injustice in relation to married women.
The third group is particularly directed to the words "have consideration of the welfare of children" considered at the stage of divorce, not postponed until after the parties have declared that their marriage is irrevocably over.
The fourth class is designed to take some positive action to affirm a marriage, partly by the contract, but partly by improving our regime of matrimonial property, so that it reflects more truly the sharing that is promised at the marriage and is inherent to the marriage, whereas at present our law of property goes against that.
This amendment is purely probing. It seeks to delete the reference to separation orders. I was not quite clear, although no doubt I should have been, exactly what is in the mind of the Government. I can think of two circumstances where a separation order is very much needed. The first is within a year of the marriage. It is supported in parliamentary divorce, in the ecclesiastical courts, and in lay courts since 1857, that occasionally there is treatment so evil from the outset of the marriage that the parties cannot be expected to live together. Perhaps the most striking is the communication of a venereal disease, of which there are several reports. That seems to me to be a case where the parties are precluded, as I read the Bill, from seeking a divorce order. I ask my noble arid learned friend whether he can assure us that there would be no obstacle to seeking, and indeed securing, a separation order in those circumstances.
The second instance that comes to mind is where a number of people still have a conscientious objection to divorce. They stand by the promises they made at marriage, particularly those made at the altar. Those people are willing to be separated if the conduct of the other spouse renders the continued cohabitation virtually impossible. They are willing to be separated but not finally to have the marriage dissolved because it is subsisting in their eyes and, so long as it does subsist,
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there is always the chance of reconciliation, contrition, and resumption of cohabitation. There may be other circumstances. If so, I should be grateful if my noble and learned friend could help us, particularly on the two circumstances to which I referred.
This amendment is grouped with Amendment No. 15 in the name of the noble Lord, Lord Meston. I do not know whether he wishes to move it separately. It is also grouped with my Amendment No. 16. I think it would be for the convenience of the Committee if I moved that separately. In the meantime, I beg to move Amendment No. 2.
Lord Meston: I am content to speak to my Amendment No. 15, grouped with this amendment. I find myself a little bemused by the amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale. But the matter does not end there, because the noble and learned Lord raises an interesting point about the types of order proposed under this Bill.
As the law stands, there is a clear and well understood distinction between a decree of divorce and a decree of judicial separation. As it is, for judicial separation the irretrievable breakdown of a marriage does not have to be alleged or established. It is a remedy quite often sought by those whose marriage has broken down, whether irretrievably or not, but who prefer not to be divorced for religious or other reasons. A judicial separation provides a status and consequences which are well established in law, including consequences for inheritance after death and on the obligation to cohabit.
At first sight, Clause I of the Bill reproduces the existing law with simple changes of title for the type of order. But it is regrettable that there is not a definition of the status created by the two new orders as there was in Clause 1 of the Bill as annexed to the Law Commission report. In that report the Bill started with Clause 1, which stated that the court might make an order known as an order of divorce dissolving the marriage, or an order known as a separation order removing, for so long as it is in force, from the parties to the marriage any obligation to cohabit, and having the effect relating to inheritance which the Bill went on to describe. For some reason that is not reproduced in this Bill. When in due course we come to Amendment No. 5, I shall seek to restore the different bases for the two types of order.
Amendment No. 15 seeks to amend Clause 2(3) of the Bill as it is presently drafted. Under Clause 2(3):
"If the court is considering an application for a divorce order and an application for a separation order in respect of the same marriage it shall proceed as if it were considering only the application for a divorce order"
unless certain conditions apply. In other words, the court's hands are tied by mandatory obligation provided in the Bill as drafted. Amendment No.15 seeks to question that provision and would give the court more discretion to consider which application is the more appropriate to grant in all the circumstances of the case.
I question the thinking behind Clause 2(3). Indeed, I question it in the context of the philosophy underlying the Bill. It seems wrong in principle to remove from the court any discretion to consider whether a separation

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order is more appropriate than a divorce order. Surely the court should consider both, on their merits and on the basis of any evidence or argument which is then put before the court. It is hard to see how Clause 2(3) in its present form assists the Government's objectives.
With respect, I invite the noble and learned Lord the Lord Chancellor to indicate to the Committee the thinking behind Clause 2(3).
Lord Irvine of Lairg: I normally find the noble and learned Lord, Lord Simon of Glaisdale, both learned and clear. Therefore I acknowledge that it is my own fault that I did not clearly understand from him why, in his proposed amendment, Amendment No. 2, the availability of a judicial separation order should be removed from the battery of powers that are available to the court.
Lord Simon of Glaisdale: It was the only way that I could think of in order to probe what lay behind the matter. There probably may be some other ways, but I could not think of them.
The Lord Chancellor: That was my understanding of what the noble and learned Lord, Lord Simon of Glaisdale, wanted: just that I should explain. I do not think he was suggesting that this was a substantive proposal. The Law Commission considered whether or not a judicial separation order should be continued at all in the new situation that was envisaged. After considering the matter, it came to the conclusion that it was right for it to be retained. In the consultation that I undertook, nobody suggested any other course. So that is as it is in the Bill.
The conditions for grant would be the same as for an order of divorce, except that that kind of order, as my noble and learned friend Lord Simon of Glaisdale indicated, can be obtained in the first year of marriage. There is no bar in that respect. Drastic circumstances such as he envisaged could occur there. The purpose of the provision is to leave that possibility open.
Secondly, apart from that altogether and, as my noble and learned friend said, for religious or conscientious objections some people would not. wish to have a divorce. I wish to keep open every possibility of accommodating every form of religious belief that exists in relation to this matter. Therefore, I think it is right that the judicial separation order should be allowed to continue. So religious or conscientious objections to divorce comprise another reason.
The third possibility is that, notwithstanding that the relationship had broken down irretrievably, and was seen as such at the time, living apart in the conditions that had been arranged might demonstrate to the parties that they were better off than they were before. Having a separation order would preclude their entering into any other marriage relationship—they might have other relationships but not marriage. Therefore, it was thought possible that people in that situation might well be able to be reconciled after a while. That is another reason.
There is also a possibility in relation to pension rights. Obviously, some of these matters are subject to consideration. However, that was another reason why
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some people did not want to divorce. They wanted to keep open the possibility of access to a pension under the arrangements for marriage.
In answer to the question of the noble Lord, Lord Meston, the view on which this provision proceeds is that the parties should be able to choose which remedy they wanted, the conditions being the same for obtaining the order, apart from the first year bar. It would be up to the parties to decide what they wanted to do. That is the thinking behind the way in which that matter was put.
I should have mentioned before that I was particularly grateful to my noble and learned friend Lord Simon of Glaisdale, who in these matters is an eminent critic, when he said that this Bill, although he dislikes it in policy, is well drafted. I was very anxious that it should be so and that it would be as clear as possible to all those who might be affected by it. That may be quite a large number of citizens, who, as the noble Lord, Lord Stallard, said, would not all be lawyers, fortunately.
6.15 p.m.
Lord Meston: Before the noble and learned Lord sits down, perhaps I may refer to his comment about the drafting being clear. I wonder whether it would be clearer if the first clause in the Law Commission's proposed Bill which spelt out the status confirmed by the two types of order was somehow restored in an early part of this Bill. I wonder why it was left out.
The Lord Chancellor: I understand that for the purposes of simplicity it was easier simply to describe the separation order as an order providing for the separation of the parties to a marriage without a separate clause to that effect. Of course, the consequences of such an order remain.
Lord Simon of Glaisdale: I am most grateful to my noble and learned friend for his explanation. As for the Bill being well drafted—I think that it is an exceptionally well drafted Bill—there is a lesson to be drawn. This Bill has been matured over a period of four or five years. It shows the advantage of the draftsman not being hurried, as most of them are. That is one of the causes for so much of our legislation being ill drafted.
My noble and learned friend confirmed that I was right in both my surmises as to why the separation order subsists. I say only—it was emphasised by the amendment of the noble Lord, Lord Meston—that there is a bias throughout the Bill, particularly in Clause 2(3), in favour of divorce as against separation. It is to adopt a phrase that was used to the Royal Commission on Marriage and Divorce: it is a divorce minded Bill.
My noble and learned friend said, and it is a comfort to know, that the circumstance in which the separation order may be valuable is where there is a conscientious objection to divorce and particularly one that is founded ultimately on a hope of reconciliation. That being so, it is a great pity—to put it mildly—that, notwithstanding the conscientious objection of one spouse, nevertheless the separation order can be converted into a divorce order at the instance of the other spouse.

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As Members of the Committee know well, the difference between separation and divorce is simply this. A separation order gives a party leave in law to live separate and apart. A divorce order does something more; it couples that with a licence to remarry. Once there is remarriage, there is virtually no hope of a reconciliation. Therefore, the party who conscientiously preferred a separation order in the hope of reconciliation nevertheless finds it dashed from their lips because the law says that there can be an immediate conversion.
Having explored the matter, and again thanking my noble and learned friend, the noble Lord, Lord Meston, and the noble Lord, Lord Irvine—in spite of his slight animadversion on my obscurities—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause I agreed to.
Clause 2 [Circumstances in which orders are made]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I should point out to the Committee that if Amendment No. 3 is agreed to, I shall not be able to call Amendments Nos. 4 and 5 owing to pre-emption.
Baroness Young Baroness Young moved Amendment No. 3:
Page 2, leave out line I.
The noble Baroness said: As Amendment No. 3 is the first of a number of amendments I have tabled, I begin by saying to my noble and learned friend the Lord Chancellor that I am heartened by what he said at Second Reading and repeated today in reply to the first amendment; that is, that he wishes to look carefully at the amendments and consider them. I can assure him that it is not my intention to divide the Chamber at Committee stage on any of the amendments tabled in my name.
I am conscious—before someone else picks up the point—that a number of my amendments cover the same point. That is deliberate. A number of serious issues arise and the idea is that we provide a variety of ways from which an answer may he found. I mean them to stand as they are without necessarily saying that one is preferable to another.
Perhaps I may take up something said by the noble Lord, Lord Irvine, in his charming Second Reading speech on the first amendment. I am not sure that I was being referred to—it is quite a compliment to be picked out in that way—but in case I was, I took down his exact remarks in regard to people who stand on "spurious, moral high ground". I do not see myself in those terms. I am not a clever lawyer like him and I cannot make that sort of speech. However, I am perfectly entitled to my point of view about the Bill and entitled to argue my case, which I am prepared to do. Perhaps I may say to him right at the start of these proceedings that we shall all get on a lot better if we respect one another's point of view rather than make remarks that are singularly unhelpful.
I shall not continue in this vein. I have had my say and I now turn to the amendment before us. I am slightly surprised that it was not grouped because, in a sense, it
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is a paving amendment. Its purpose is perfectly clear; it permits divorce only on the grounds of fault or behaviour that is destructive to the continuance of the marriage. In a way, the amendment is required for amendments that follow on from it.
As I indicated, I do not wish to press the amendment. Amendment No. 4 is the major amendment dealing with the whole issue of fault. I prefer to raise the issue on that amendment rather than on Amendment No. 3 which, though free-standing, should have been grouped.
I am always pleased to hear the noble and learned Lord, Lord Simon of Glaisdale. I am glad that he attaches his name to the amendment. In case he or anyone else wishes to say something a,. this stage, I beg to move.
6.30 p.m.
Lord Simon of Glaisdale: I am obliged to the noble Baroness. I would not wish her to refrain from withdrawing the amendment at the end of the debate because, as I indicated, all my amendments are exploratory. However, it is extremely valuable to debate at the outset the concept of irretrievable breakdown; it is at the heart of the measure.
It is because of that concept that one finds an inbuilt injustice. The only way of testing irretrievable breakdown is by finding facts to support it. That was where the committee of the Bishop of Exeter, in Putting Asunder, made its fundamental error. It thought that irretrievable breakdown was a triable issue and recommended that it should be the only basis for divorce. Fault should not be considered at all but every marriage should be tried separately to see whether it had in truth broken down. It was rapidly pointed out not only that irretrievable breakdown is an unjusticiable issue but that it is practically impossible to investigate every marriage to see whether it has in tact irretrievably broken down. That was pointed out both by the Law Commission and by the Lord Chancellor's department.
In the result, the Bishop of Exeter agreed to the composite measure of 1969, so justly denounced in the White Paper, in chapter 2, and by the noble Lord, Lord Irvine of Lairg, in what I am afraid we will continue to call his Second Reading speech today. That was a perfectly just denunciation. Nevertheless, we had the odd circumstance that the Bishop of Exeter was actually a teller in your Lordships' Chamber in favour of the 1969 Bill at Second Reading notwithstanding that it contradicted fundamentally what his committee recommended. Another right reverend Prelate, who is happily still with us, was on the other side and voted against the Bill. Is it any wonder that the Church of England appears now to be speaking in disparate voices on this measure which takes us further down the same road.
A second point I should like to make is that irretrievable breakdown, as a ground for divorce, is a recent intellectual fashion; really an intellectual fad. One gets these sudden gusts of intellectual opinion sweeping through society. The most notable in my time was undoubtedly the movement for pacifism at the end of the 1920s and at the beginning of the 1930s, starting

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with the anti-war novels and plays and ending up with the politically momentous Peace Pledge Union. The intelligentsia who had put forward that view, speaking of passive resistance as the proper method of standing up against evil, rapidly changed their opinion in the face of fascism, and instead of passive resistance and non-violence one had the idea of co-operation against fascism. But that is a good example of how a temporary fashion runs through society and carries all before it.
Perhaps even closer to this Bill and the 1969 Act was the movement of bimetallism at the end of the last century. It was a tremendous fashion, so much so that an American presidential election was carried on it, with William Brown momentously referring to mankind being crucified on a cross of gold. It all sounds so remote and so ridiculous; but at that time it carried all before it. No one thinks of it now.
Irretrievable breakdown is very much the same. Nothing had been heard of it by the time the Royal Commission sat in the early 1950s. The Royal Commission was appointed because the noble Baroness, Lady White, had introduced a Bill providing for divorce after seven years' separation. Nothing was heard of irretrievable breakdown as such in the evidence given to the Royal Commission by Archbishop Fisher, which seems now to be largely forgotten, although his objections to the seven years' separation for divorce would certainly apply much more strongly to the ground of irretrievable breakdown.
As I said, it is a recent fashion and one hopes that it will disappear with this Bill. And not only that—it is not a justiciable issue at all. The White Paper admits that. The 1969 Act set out what were called five facts. Each one was a conclusive proof of irretrievable breakdown and all five were exclusively proof. In other words, the irretrievable breakdown was, as is now accepted, the merest humbug. So, too, in this Bill. The irretrievable breakdown cannot be proved as such. It can only be shown—and in this Bill it is to be shown—by one party to the marriage saying that the marriage has irretrievably broken down. That amounts in fact to unilateral repudiation of the other spouse. The sooner we grasp that and face it, the more honest we shall be with this Bill.
The irretrievable breakdown proved by unilateral repudiation is bound to be liable to cause injustice and is likely to cause the most severe injustice to married women. I want to quote a passage from a book written by David Morris, who was the most experienced litigation solicitor in London at the time and was particularly strong on divorce. The foreword of the book was written by my noble and learned friend Lord Hailsham. In the foreword my noble and learned friend picked out two passages especially. David Morris had written:
"It all sounds so wonderful"—
the improvement in the wife's legal position—
"until you face the position of the middle-aged woman with young children abandoned by her husband for a younger woman after ten or fifteen years of marriage. Then by a paradox many of those
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improvements, to which in all fairness women were clearly entitled, seem to have contributed to a weakening of women's position in marriage as a whole".
In moving this amendment the noble Baroness has given us an opportunity to face that situation, a matter of elemental justice.
The other passage cited by my noble and learned friend is as follows:
"I agree that there are often faults on both sides, but I believe that in many cases if all the facts were known most people would say that far more of the fault was on one side than the other".
My noble and learned friend added:
"That, too, has been my experience".
Perhaps I may add that that, too, has been my own experience as a matrimonial judge.
The final thing I would say concerns the pretence of abandoning fault because it exacerbates the relationship. Nevertheless, fault creeps back at a later stage, as it is bound to. The divorce itself is demoralised, fault is not investigated, the ipse dixit of one spouse is sufficient to set it in motion. Once the motion starts, once the mediation sets in, the parties are enjoined—enjoined in the White Paper itself—to face their faults on how far they have been responsible. Indeed, the Bill itself and Section 25 of the 1973 Act expressly enjoin the court to have regard to the conduct of the parties. So although one demoralises divorce, one does not get rid of fault. One may expel it from the front door with a hay fork but one will find that it slips in through the back door and is in the parlour.
Lord Elton: I do not follow the noble and learned Lord on the question of irretrievable breakdown per se, but I hope that my noble and learned friend the Lord Chancellor can say something about irretrievable breakdown as evidenced by a unilateral declaration—something which I find rather difficult. That may be to anticipate Amendment No. 18A in the name of my noble friend Lord Ashbourne, in which case my noble friend may wish to postpone it; but it seems an integral part of this debate. Irretrievable breakdown resting on the claim of one party and the silence of the other is fraught with dangers of injustice.
Lord Coleraine: I would like to associate myself with the scorn which the noble and learned Lord, Lord Simon of Glaisdale, has cast on the use of the words, "irretrievable breakdown" both in this Bill and in the 1969 legislation. I am probably making the same type of point as my noble friend Lord Elton. The 1969 Act says that the sole ground for divorce is irretrievable breakdown. It goes on to say that there are only five ways in which one can prove that. The 1969 Act was creating as best it could a system of divorce based on the grounds that—I am looking at the line which the amendment of my noble friend Lady Young seeks to omit from the Bill—
"the marriage has broken down irretrievably".
Clause 2(1) states,
"the court shall make the order applied for if (but only if)— the marriage has broken down irretrievably".
(a)
Of course, the question of irretrievable breakdown is not justiciable. If we look ahead to Clause 4(1) we see,

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"A marriage is to be taken to have broken down irretrievably if (but only if)—"
and then there is a long list of matters which have to be satisfied. The line in the Bill which my noble friend seeks to omit could be made both more neutral in terms which might appeal to my noble and learned friend the Lord Chancellor and more explanatory of what is the actual situation, if that line read, "The marriage is taken to have broken down irretrievably". That would describe the full situation.
Baroness Elles: I support the comments made by the noble and learned Lord, Lord Simon of Glaisdale. I find the removal of fault in this Bill extremely worrying. I am somewhat surprised that, as far as I can see, the Government's White Paper Looking to the future, makes no reference at all to any of the research done in those countries where no-fault divorce has been introduced.
Considerable research has been done in the United States since the introduction of no-fault divorce in California in 1970 and, I understand, in at least 38 states, now. Of course, as research shows, it is always very difficult to apply direct cause to some effect, but there is no doubt that, from the evidence which has been obtained, the idea of no-fault divorce has increased the number of divorces between 20 per cent. and 25 per cent. over the past 15 to 20 years. Therefore, I am surprised that, with the fairness and intellectual rigour of my noble and learned friend the Lord Chancellor, no reference has been made to that, as far as I can see, when presenting the case for no-fault divorce. That should certainly be looked at.
The other point which the noble and learned Lord, Lord Simon of Glaisdale, strongly emphasised was that of justice. Many of us will have friends of all conditions, backgrounds and homes, where one of the partners has deserted the home—and even our Bishops might agree that they were behaving badly—and where the other party might have been innocent. They would find great unfairness in the allocation of the matrimonial property and the financial arrangements. I very much hope that my noble and learned friend the Lord Chancellor will be able to calm my concerns where there is some disagreement as to the allocation of the matrimonial property, which, after all, was a matter which was very largely resolved in this House very many years ago by the noble and learned Lord, Lord Denning, in his so-called "palm tree" judgments, which brought some justice to women who had contributed to the home without possibly making any financial contribution. That should not be totally overridden by this Bill. With the unilateral demand for divorce, the power goes to the person who wants the divorce, who wants to marry again because he or she has gone off with someone else, and there is no protection for the apparently innocent party in those cases. I hope that my noble and learned friend will give us some support and alleviation as regards the concern on these matters.
6.45 p.m.
Lord Irvine of Lairg: Perhaps I may reassure the noble Baroness, Lady Young, in whose name this amendment stands, that I thoroughly enjoyed her
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contribution at Second Reading as much as I vigorously disagreed with it. I entirely accept that she is entitled to her view and I enjoyed her expression of it. Equally, I dare say, she will accept that I am entitled to my views about her views.
I well appreciate that this is a paving amendment designed to remove irretrievable breakdown as a ground for divorce. It is better to postpone our detailed discussion on that matter until the suggestion of fault provisions is directly before us. I should make it clear, however, that in my view irretrievable breakdown should be the ground for divorce. It is made so by Clause 2(1)(a).
As regards the contribution of the noble Lord, Lord Coleraine, the noble and learned Lord will no doubt wish to confirm whether he agrees with that interpretation. I understand Clause 2(1)(a) to require that the court be positively satisfied that the marriage has broken down irretrievably. But then Clause 4(1) operates, as it were, as a bar to that satisfaction. The court is not to be satisfied because the marriage is not to be taken as having broken down irretrievably unless these various precautions, as it were, have been fulfilled. That is as I understand it.
I submit that irretrievable breakdown should be the ground for divorce. So far from irretrievable breakdown not being justiciable, I submit that it is fault which is not sensibly justiciable in this area. Perhaps I may recall the wise—
Lord Simon of Glaisdale: Was not fault justiciable in this area from the time of the Norman Conquest until 1857 in the ecclesiastical courts and after that in the lay courts until 1969 and beyond?
Lord Irvine of Lairg: I am not bowled over by ancestor worship. I was seeking to call attention to the wise words at Second Reading of the right reverend Prelate, the Bishop of Birmingham, when he said,
"To say that irretrievable breakdown should be the sole ground for divorce is not to deny personal responsibility for the breakdown of a relationship".
I entirely agree. He continued,
"It is not to deny the place of human fault and sin in the process of matrimonial breakdown".
I entirely agree. He went on,
"It is to say that a human court of justice is too blunt an instrument for apportioning blame in so complex an area of human behaviour, especially if the processes one has invite one to say that it is all the fault of one side or the other. Anyway, what is the point of apportioning blame?"—[Official Report, 30/11/95; col. 753.]
That is to run ahead into the argument as to whether there should be fault-based divorce, but I entirely agree.
I was entirely in agreement with what the right reverend Prelate the Bishop of St. Edmundsbury and Ipswich was saying in his brief speech to similar effect when it was subject to an intervention from the noble Baroness, Lady Gardner of Parkes, who is not in her place at present, inviting him to abbreviate it to which, sadly, he responded. The noble Baroness asserted that the right reverend Prelate was making a Second Reading speech, as it has been asserted that I made a Second Reading speech on Amendment No 1, a position

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adopted by the noble Baroness, Lady Young, and taken up by the noble and learned Lord, Lord Simon of Glaisdale. I do not begin to accept that.
What was before us on Amendment No. I was a general objectives clause. The noble and learned Lord has recognised that there are special legislative problems associated with general objectives clauses although I believe him to have expressed a strong measure of sympathy, subject to supplementing it, for this one. The point is that when a general objectives clause is before your Lordships for consideration, the major question which has to be addressed is whether that general objectives clause chimes with the particular provisions of the Bill that follow the general objectives clause, if it is accepted. How you do justice to an argument that a Bill should embrace at its commencement a general objectives clause without addressing whether it is in accordance with all the particular provisions of the Bill escapes me, but no doubt at a later stage in this debate the noble and learned Lord and the noble Baroness will explain. Meanwhile, I leave the substance of this interesting argument until a debate on the fault or no fault amendments.
Lord Meston: Confining myself to this amendment, I cannot agree with the proposition that the irretrievable breakdown of a marriage is not a justiciable matter. I have known divorces which have been successfully defended and, indeed, undefended divorces which have been refused by a court on the basis of a decision by the judge that the breakdown of the marriage had not been shown to be irretrievable, because for example, there was a reasonable prospect of reconciliation. Therefore, I suggest that your Lordships should not be put off by the proposition that a court cannot decide that a marriage has broken down irretrievably.
The Lord Chancellor: I think that there is a great deal of merit in taking this amendment with the later amendments, as my noble friend Lady Young suggested. However, we have now been treated by my noble and learned friend Lord Simon of Glaisdale to a somewhat more detailed defence of the amendment than was given by my noble friend herself. Therefore, I think that I owe it to my noble and learned friend and to other noble Lords who have spoken to say just a word or two about this matter.
The purpose of the clause is to base the ground of divorce on the irretrievable breakdown of the marriage. As the reference to the prayer book from my noble friend Lord Onslow made clear, the obligations of marriage do not stop with the obligation not to commit adultery—I believe that there is a good deal more to the marriage relationship than that—nor do those obligations stop at the obligation not to be guilty of unreasonable conduct. I believe that the obligations of marriage, as set out in the Book of Common Prayer and in the scriptures on which I believe that that book is soundly based, are much more far reaching and intimate. I believe, as I. have said before in another context but perhaps not to your Lordships, that a good marriage relationship is the most satisfying of all human relationships. It cannot be reduced to a list of contractual
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conditions. It is much more than that. It is a relationship unique in itself, divinely given (in my view) and extremely valuable in our society.
When that relationship breaks down, something requires to happen. Following extensive consultation, I have sought in this Bill to make irretrievable breakdown justiciable by precisely defining its contents. The process is initiated by one or both parties stating that the marriage has broken down. There is then a year (as a minimum) for the purpose of trying to see whether the relationship can be retrieved and whether the marriage can proceed—
Lord Stoddart of Swindon: I do not agree.
The Lord Chancellor: Obviously, we shall have to look at it in a little more detail later, but at the moment that is the purpose. The year should be for consideration and reflection. Machinery is provided for carrying that out.
One of the purposes plainly recognised in the Bill is the need to consider arrangements for the future after the divorce. The noble Lord, Lord Stoddart of Swindon, referred earlier to what the future holds. I believe that that is one of the most important things to be faced in connection with a contemplated divorce. The question of what the future will be like must be considered. As long as final positions have not been adopted, taking a look into the future and at what the situation will be as the family splits up, with the father possibly leaving home and not able to see the children very often—what so often happens, sadly, is that he gradually sees the children less, which is very bad for the children—is a vital part of that year of contemplation. That is why I have required in the Bill that those arrangements be finalised (generally speaking and subject to some exceptions) before the divorce is granted. That will ensure that before a divorce is granted the parties have to face up to the whole range of responsibilities that they have undertaken in their marriage. That is the purpose of the provisions.
In my view, it is not an intellectual fad but a proper analysis of what really happens when there is an irretrievable breakdown of a relationship—a complicated, intimate, valuable, and divinely appointed relationship. That is what is in question. I believe the provisions to be a sound basis for a reasonably civilised divorce law. I trust that that answers the question raised by my noble friend Lord Coleraine. In effect, I have defined in Clause 4 the conditions under which "irretrievable breakdown" will be satisfied.
Perhaps I may turn to the questions asked by my noble friend Lady Elles. First, analyses of what happens after a particular change in the law has been made are extremely difficult to put on a proper basis. As everybody has recognised, it is not only the law that causes divorces. Much more complicated issues than that are involved. We would really need to know what the rate of divorce would have been if the law had not been changed—and, in the nature of things, we cannot know that. So, in my view, there is only a limited value to be obtained from such analyses. One has to proceed on the basis of principle and take a rational approach to the problems. That was the approach set out in the

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White Paper which I have sought to follow. I have not been able to find anything in the research to damage the conclusion which the White Paper reached.
On the second point about justice and the division of property, nothing in the Bill in any way damages the present rules in regard to the allocation of property. In particular, the rule is preserved that where it is inequitable to disregard it, the conduct of the parties will be taken into account in the allocation of the parties' property and so on.
Some people have talked about no-fault divorce. The noble Lord, Lord Habgood, wrote about that recently, pointing out that there is no suggestion that there is no fault. The suggestion is that it is not a sound basis upon which to found a divorce law. Of course people are at fault. There are few marriages which survive for long in which there has not been fault on one side or the other, and usually on both. A degree of tolerance and understanding is required. Mutual agreement is required. Parties require to he able to agree upon a course of conduct where there are choices. That is the nature of a successful marriage. Conduct has to be taken into account in a broad and just way. I believe that that is what the present law provides on this aspect, and the Bill in no way changes that.
Baroness Young: Perhaps—
7 p.m.
Lord Stoddart of Swindon: Before the noble Baroness replies, I am sorry if I interrupted the noble and learned Lord from a sedentary position, but I reacted to what he said about a period for reflection and consideration. The problem is that we are in a situation where one party—not both parties—has said that the marriage has broken down irretrievably. So there will be only one party who will reflect. The other party who has been told, although he or she may not agree with it, that the marriage has broken down irretrievably, whether he or she likes it or not, may feel that after that he or she does not want to reflect because the other party has made it clear that the marriage has broken down. That is one-sided. That is why I reacted as I did.
The Lord Chancellor: I understood that the noble Lord reacted in that way. I did not take it in any way other than an informative reaction, which I was able to answer, as I thought, at the time. The reality is that one cannot force the parties. If someone is determined that his or her marriage has broken down and is not prepared to co-operate with anyone to do anything about it, there is nothing that the law can do. One has to face that sad fact. I am trying to put forward every possible persuasion on people to get together in the period set down. The period is provided for in Clause 7. The initiation is by one party, but the irretrievable breakdown is demonstrated only once the period for reflection and consideration has taken place.
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As I said, realistically one knows that one cannot force people. Everything is being done in the Bill to give them a structure under which, if at all possible, they will come together.
Lord Elton: If the object is to put pressure on the silent party to become a party to the agreement, as it were, why is it that a statement that a marriage has broken down irretrievably made by one person is treated in the same way as one made by two? Is there not an opportunity there to exert some pressure?
The Lord Chancellor: The point is that it is the year passing that is required. That is an absolute and objective fact. Unless the relationship has been brought together, healed or restored in that time, the Bill proposes that there should then be a basis for saying that the marriage has broken down irretrievably. That is not the whole story. There is a hardship bar in Clause 10, to which amendments have been tabled, which is important. As a practical matter, if the parties have been unable to be reconciled and so get on with their marriage after a year, in my view the practical inference is that the marriage has broken down irretrievably. That is what I take from the results of the consultation. If the parties are agreed about it all, so much the better, but, sadly, when a relationship breaks down one of the great difficulties is to achieve any kind of agreement.
Lord Hamilton of Dalzell: Perhaps my noble and learned friend will elucidate further on the matter of justice. The noble and learned Lord, Lord Simon of Glaisdale, said that if one took fault out through the front door, in it would come through the back. What seems to me to be in prospect if a statement is made by one of the parties that the maker of the statement, or each of them, believes that the marriage has broken down is that it will enable someone to walk out of the marriage, possibly at considerable financial gain to himself or herself.
I thought I detected a hint from my noble and learned friend that that would be sorted out at some later stage. I wonder whether my noble and learned friend could elaborate.
The Lord Chancellor: Under the Bill, one party to a marriage may make a statement—a neutral statement—that in his or her opinion the marriage has broken down. It is intended that that statement should not contain allegations, and so on, against the other party to the marriage, because that is not likely to be conducive to healing the relationship. There then follows a period of a year, provided by Clause 7, for reflection and consideration. The hope is that during that year the parties will address their problems. Mediation is intended to help them to address those problems by communication one with the other rather than through representatives.
Experience shows that it is a lack of communication between the parties that often leads in the first instance to the breakdown of the marriage. A skilled mediator may be able to restore that kind of

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communication. Talk about the future, I hope—at least in some circumstances—may lead also to reflection upon whether or not the parties should go forward.
Assuming that the year has now begun, the process I then envisage in the Bill is that there should be discussion between the parties, helped by a mediator, of what the future arrangements should be—all the arrangements relating to the children, property, and any other mailer that may be affected by the possible dissolution of the marriage. The year is intended for that purpose. It may take longer. The Bill requires that, except in special circumstances provided for in Schedule 1, the arrangements should be completed before a divorce is granted. There will be no question of anyone walking out in the way that my noble friend suggested unless and until the arrangements and terms upon which that is to happen have been settled between the parties.
There are of course possibilities of disagreement in that connection, but that is the scheme. Therefore justice is secured, so far as it can be, in relation to the allocation of property and the other matters that have to be dealt with. That is where justice in the whole arrangement has to come into play.
Lord Carr of Hadley: Perhaps I may ask my noble and learned friend one final point before he sits down. In the statement that he has just made, he seems to see the procedure moving from the statement, which may be a unilateral one, straight into mediation. I should have thought that there was need for a period of conciliation. I realise that that is provided for, but in the statement that my noble and learned friend has just made I do not see how that fits in.
The Lord Chancellor: One of the problems of divorce is that people reach that stage usually before seeking help of any kind. It is often late for any kind of conciliation, but mediation is required if a divorce is contemplated and if the future after divorce is to be studied. That is a most important aspect of the proposals.
I have provided that in relation to mediation, if there is apparently any prospect whatever that the parties will get together again the mediator will refer them to conciliation and, it is to be hoped, to reconciliation. The noble Lord, Lord Irvine of Lairg, made a point about my clauses. My intention in the clauses relating to conciliation is that, if there is any prospect of that, it will not affect the running of the time because if people believe that the year should run while there is still time to be reconciled that might damage the prospect of reconciliation. That is my intention but there may be some misunderstanding about it.
I believe that as a practical matter the most likely source of conciliation and, it is to be hoped, reconciliation is when the parties get together to look at the various problems that they face. I believe, too, that mediation in its very nature brings them to address what has separated them and what are the
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problems between them that must be addressed. Therefore, this is intended as a practical method of addressing these matters.
There is a great variety of circumstances and it is difficult to legislate for them all. This is intended as a framework to encourage and, it is hoped, to bring about reconciliation where that is possible.
Lord Coleraine: I understood my noble and learned friend to say that there is no difference between the financial provision arrangements under the 1973 Act and those in the Bill. However, there is one very important difference which will have a profound effect on these matters. It is that under the 1973 Act financial provision arrangements can be made at the time of the decree nisi but cannot be brought into effect until the decree absolute. Under my noble and learned friend's proposals all these matters can be taken up and brought to finality at an early stage within the year of reflection and consideration.
The effect of that could he that a wife and child are taken away from the husband immediately the wife applies for financial provision. Within a few months the husband might find himself paying for the support of the wife and the child but without his home and even having to transfer the home to his wife. Under present practice that could not have happened until a much later stage of the proceedings. It throws a bad light on the effect of the Bill in promoting reconciliation.
The Lord Chancellor: We are moving away from the amendment but this is a matter for considerable consideration. In answer to my noble friend Lady Elles, I was referring to the basis on which property arrangements should take place. The Bill makes no change whatever to that. It makes different arrangements as to when exactly the various provisions can come into effect, but I believe that one of the important issues is realistically to face what the future will bring. If the parties are in a position completely to know what that is, so much the better for realising exactly what the future is after divorce. I believe that at least in some cases a look at the future as well as facing up to the responsibilities of marriage are extremely important features of the proposals.
The Earl of Onslow: Perhaps I may make only one point about the one-person application in respect of the irretrievable breakdown of marriage. If one partner in a marriage is totally and utterly determined that the marriage has broken down it is extremely unfortunate but there is nothing that the other partner can do about it. It is nasty and unpleasant but all divorce is nasty and unpleasant. I do not know one of my friends whose divorce has not been at least 70 per cent. on one side and 30 per cent. on the other. Normally it is 50:50, and that point needs making. That is why I support my noble and learned friend so strongly.
Baroness Young: We have strayed very far from the original amendment, which I said was a paving amendment. A number of points have been made and

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I shall read most carefully what my noble and learned friend said. I do not intend to respond to all of them but it appears that he attaches immense importance to mediation. Where all those remarkable people will come from I do not know. At any rate, we are banking on all kinds of people managing to undertake the task. I had understood that mediation was about splitting the assets of the marriage and not about reconciliation and so forth. That is another debate which we shall come to later in the Committee stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I beg to move that the House do now resume. In moving the Motion I suggest that the Committee stage begins again at 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Transport Research Laboratory
7.15 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn rose to ask Her Majesty's Government what progress has been made in negotiations for the sale of the Transport Research Laboratory.
The noble Baroness said: I beg to ask the Question standing in my name on the Order Paper. Earlier today I overheard two noble Lords from the other side of the House discussing this Question. One asked the other, "What's it all about?". The reply was, "It's about privatising the Transport Research Laboratory to make it more efficient". When I heard that Pavlovian reaction I despaired of our ever getting a quality of society or economy in this country which will enable us to compete in the modern world.
There was no recognition of the importance of the Question and of the fact that we were to discuss the future of a great national asset. As regards transport, for more than 60 years it has kept the 55 million people in this country among the safest in Europe. That does not happen by saying as a piece of ideology, "Oh, privatise everything". It does not happen by saying, "Never mind. Break it up and sell a bit here and another bit there and give it to the highest bidder. Never mind about the national interest".
It used to be a Conservative doctrine, "If it isn't broken don't fix it". Now it appears to be a doctrine, "Even if it's functioning very well, privatise it". I must not spend too much time on my passionate feeling about the emptiness and lack of intellectual argument in this new Conservative ideology because, surprising as it may seem to the House, I wish to be helpful tonight. I wish to help the Government to reach the right decision in the national interest. They have a very, very grave responsibility.
We are at a crucial moment in the history of this great laboratory, which is internationally renowned and used. The Government, having asked for bids for the TLR, have short-listed two and are on the point of deciding—indeed, they may already have decided—which of the two to choose. I venture to hope that if a decision has been made we shall be told tonight and that this House will be given a little political priority.
I wish to stress the points on which we are agreed and on which there is written evidence that we are agreed. The first is that this laboratory is widely acclaimed as a centre of excellence. Conservative Minister after Conservative Minister has affirmed that fact.
Secondly, it is agreed that when the Government—I believe that it was in 1993—decided to turn the laboratory into an executive agency. the staff and management responded with all the flexibility anyone could have asked. Again, there is written evidence in the form of statements from Conservative Ministers to that effect. Moreover, the laboratory has met every one of the efficiency targets that the Government set for it when it became an agency.
The third thing which is irrefutable is that when the Government decided to privatise they asked a prominent firm of consultants, Peat Marwick, to tell them the best way to do it. Peat Marwick was not allowed to say, "We'd better leave well alone". Therefore, it said that the only way to preserve the international influence, trade and work of the laboratory would be to retain its independence of commercial pressures and its impartiality. That is what you need in research; it is not pressure for profits but the facts upon which policies should be based. It was said that the best way to do that was to hand the laboratory over to a non-profit distributing company. Without that, it will lose its international status and it will be said that it is just a side-kick of some big, commercial firm.
Finally, there is a report of the Select Committee on Transport of another place of March 1994 which examined the proposed privatisation. I know that the Minister the other day dismissed that suggestion airily and said, "Oh, well Peat Marwick are only a hunch of consultants. Are you saying that we should abdicate our responsibility to choose just because of a body of experts?", but what the Government face is the fact that an all-party Select Committee said in its recommendations that it could not advise the House of Commons to endorse that privatisation until it was satisfied that the independence and impartiality would be maintained. If privatisation were to go ahead, it recommended that the TRL should be turned into a non-profit distributing company.
It is interesting to note that one of the members of that committee who voted for all its recommendations was none other than Mr. Peter Bottomley, a former junior Minister of Transport during 1986 to 1989 in this Conservative Government. He, as a former Minister of Transport, warned in an interview reported in the New Scientist on 6th January of this year that we are in danger of losing this great national interest to a

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commercial concern. It would mean that we would be throwing away the confidence and expertise that this body can offer.
Those are the facts. We have now reached a crucial stage because the Government have received the final bids and have selected two of them. One is from that very commercial consortium which so alarmed the former Conservative junior Minister of Transport, Mr. Peter Bottomley. The consortium consists of four main interests. The first is Pell Frischmann, which is a firm involved in road construction. Then there is Mouchel Associates, which has civil engineering interests, together with the AA and the RAC.
I am sure—and I want to give the Government the advantage of every doubt—that the Government know how successive Ministers of Transport on both sides of the House suffered at the hands of the AA and the RAC whenever they attempted to restrain the mad, breakaway expansion of motoring or to insist on safety provisions, a reduction in pollution or to say that road building must take its share of public expenditure cuts. I give the Chancellor of the Exchequer credit—and, indeed, the Government—for having said in his last Budget that road construction must stand back a bit. But have the Government read the howls of rage from the AA and the RAC stating, for example, that the motorist has been made a victim of the Budget and that the Government are leading the roads to ruin by failing to build more? I suffered from that too when I introduced seat belts; indeed, the AA and the RAC were hardly my friends. They are not the friends of this Government either when they try to introduce a wider and more sensible policy.
That is one side of the story. I ask the Government to take the House into their confidence. If they are by any mischance considering giving the bid to that consortium, could they place in the Library a copy of the business plan that that bidder submitted in order to get its bid accepted? What commitment does that consortium make to the future of transport research development in this country? If it is not under some kind of legal obligation, we could have a repetition of what happened when AMEC Frischmann, another consortium, acquired parts of the Property Services Agency (formerly in the public sector) when it was recently privatised. I now understand—and perhaps the Minister can deal with the point in his response—that that consortium is planning to sell off the parts that it bought, perhaps too cheaply, to make a profit. Will that happen to our research laboratory?
On the other hand, we have the Transport Research Laboratory insider bid from staff and management in the name of the Transport Research Foundation. It would be a non-profit making distributing company. It would plough back into research any profits that it made, just as it made a recent surplus of £2.5 million which, if it were the foundation in power in the field, it would plough back into research for road safety, road improvement, car improvement, pedestrian safety improvement; indeed, into everything. I cannot believe that the Government can close their mind to the power
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of the arguments on behalf of the bid recommended by the Select Committee of another place with a Tory majority and by their consultants.
In conclusion, I should like to express a word of hope. I am sure that the new Secretary of State for Transport will not sell out to a narrow road construction, motorist dominated consortium. I say that because he has made a name for himself. He wants a new era for the cyclist and the roads and facilities made safer. The TRL is already engaged in the necessary research to back up the policy of Sir George Young. Therefore, can the Minister tell us tonight that he accepts the power of argument and that his right honourable friend the Secretary of State for Transport will decide in favour of the Transport Research Foundation?
7.30 p.m.
Earl Attlee: My Lords, I thank the noble Baroness for posing this Question. When I saw that she had tabled this Question I thought that my views would be somewhat at variance with hers. However, after listening to her excellent speech I realise that I am close to her. I should perhaps declare an interest as president of the Heavy Transport Association. I also have other connections with transport.
I, too, acknowledge the good work of the Transport Research Laboratory. It is a respected organisation which has done much work on crash tests, traffic management, the quiet heavy vehicle project that has made our commercial fleet a lot quieter, accident analysis and design of road layout. The role of the laboratory is clearly to carry out research mainly concerning road transport matters as required by the Department of Transport. However, its function can be similar to that of any other consultancy research establishment in the country except that the TRL only has one main customer, Her Majesty's Government, and also HMG are largely tied to the TRL. I assume that is the problem that the Minister seeks to address by looking for a privatisation solution.
The Minister also needs to place the research that he requires with those organisations which are best placed to do it. Recently the department had to consider the design and construction of recovery vehicles. The Minister commissioned a report from the Defence Research Agency. Initially that sounds rather a surprising choice but on closer inspection one finds that the DRA is responsible for the engineering management of the army's fleet of recovery vehicles. That is a large fleet. The DRA has carried out that investigation but the investigation into traffic management and congestion and strengths of roads was carried out by the TRL because that body is the expert in that area. I was impressed by the use of appropriate research facilities. As it happened, both bodies were agencies of the Government.
The difficulty of selecting a consultancy on a commercial basis is that one must select the right one and cost is not the most important factor. In fact, it is probably the least important factor. One cannot just consider the cheapest quote for doing the job. The main consideration is whether the consultancy understands

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the problems of HMG—TRL is in a good position to understand those problems—and whether the consultancy or the research establishment has the facilities and the experience to carry out the necessary research. The TRL clearly has the facilities and the experience which have been built up over a long period of time, as the noble Baroness said. Therefore I feel it would be in a good position to continue to obtain this work. My attitude is that in principle there is no problem with moving the TRL into the private sector because HMG will not be tied to the TRL and vice versa.
The worry that I have detected in industry concerns what HMG's commitment is to carrying out sufficient research. Will they just carry out the bare minimum and perhaps commission a report to give weight to a view that they have, or will they carry on with basic research to ascertain whether there is a problem, studying accident statistics and the sort of work that the TRL does now? The other worry I have is that some types of research clearly should be commissioned by the Highways Agency, for example that concerning the strengths of roads and bridges. I hope that the Minister will ensure that sufficient funding will continue to be available for that.
As regards the selection of bidders, I understand that the motoring organisations intend to bid, as the noble Baroness said. The role of the motoring organisations is to support the position of private car users. Their function is not to support pedestrians or cyclists. They probably do not do much to support motor cyclists, goods vehicle operators or any other users of the road. I do not think such a move would be good for the motoring organisations who I believe should stick to their core activity which is to look after private car users. The noble Baroness has mentioned the impartiality requirement. She was right to do so. Let us not see a motoring organisation becoming involved in running a laboratory.
As regards a dedicated consultancy business taking over the TRL as a profit making business, I have no problem with that at all. There are plenty of research consultancies which exist purely to make a profit. There is no reason why they should not continue to produce impartial research and reports. My favoured option is the management buy-out. Obviously the Minister will have to check the stability, the funding and the business plan of a management buy-out as well as of anyone else who wishes to take over the organisation, but I support the management buy-out route. Clearly the problem that the Minister has is to select a suitable, unbiased buyer for the operation. If he finds that the MBO cannot be accepted for practical reasons, he may have a big problem in finding someone who is suitable and unbiased. My question to the Minister is the following: what are the criteria for selection and how will the Minister ensure the independence of the laboratory in the future? I would say in summary that I do not think the Minister's policy is flawed, but I would be interested to hear his comments as regards the selection of a buyer.
7.37 p.m.
Baroness Thomas of Walliswood: My Lords, the noble Baroness, Lady Castle of Blackburn, has done us all a service in keeping this issue alive even if the TRL is destined for inevitable privatisation at the hands of this increasingly dogma driven Government. One remembers with admiration—even nostalgia—some of the other mighty battles in which she has been so often engaged, sometimes triumphantly.
The reasons for the sell-off were given in a Written Answer to the noble Lord, Lord Gainford, on 14th March 1995. In summarising the reasons I use my words and not the Minister's. The reasons were to get independent advice at good value for money; to transfer the TRL to the private sector as soon as possible and to realise as much cash as possible. Those were the reasons for selling off the TRL. In the same reply the Minister added that the purchaser would have to be of sufficient substance; that there was interest on the part of the private sector in acquiring the business with a lease or freehold interest in the property and buildings required for the operation of that business—the property and buildings are substantial—that the Government would provide guarantees of further work for a privatised TRL; that bidders would have to demonstrate that the supply of advice and research to the Government would not cause a conflict of interest with their other operations, and that a management buy-out would be considered.
Subsequently, answering a Question in this House that was stimulated by the noble Baroness, the Minister said in effect that offering a guarantee of future business to a private purchaser was not inconsistent with not giving such a guarantee to the TRL itself. That reply seemed to be greeted with a certain amount of disbelief at that time. The Minister further said that the TRL had faced a loss of business and needed to seek business elsewhere which could not be satisfactorily achieved whilst the TRL was in the public sector. At that point a noble Lord intervened to ask why not. He did not get a clear answer. However, we know that the Government continue to be, as other governments have been in the past, extremely reluctant to allow organisations which operate at arm's length to function in any way in the private market as private suppliers to private businesses. I understand that that is EL problem, but it seems to me that it would be much more sensible to retain TRL in its present circumstances and enable it to function more effectively outside the constraints of being able only in effect to supply the Government.
At present TRL is a very successful and expanding business notwithstanding the remarks made on 19th April. Its turnover has increased and is now well over £31 million a year. As the noble Baroness said, its profits were in the region of £2.5 million. In 1994–95, the last year for which we have a report, £1 million was invested in expanding the assets of the company. Therefore, it is not a company which is dying on its feet and cannot survive. Quite the contrary.
It is also noticeable from the report that a good deal more business is being conducted abroad. If, in the current climate, the Government, because of the decline

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in their road-building programme and for other reasons, are not able to sustain the TRL, it seems to me that it is in those countries which do not have such constraints that TRL might well find a satisfactory market for its undoubtedly excellent products.
The interesting question is why it has taken nine or 10 months for anything else to happen. Like the noble Baroness, I saw the titbits in the Daily Telegraph and Independent on 18th December which informed us that the Minister was in difficulty over the decision and that as well as the management buy-out, which it was fairly certain would be forthcoming as that was the obvious thing for the management to do, one other consortium was bidding. As already stated, that consortium includes an engineering consultancy company and two organisations dedicated to the wellbeing of the private motorist.
Why has the decision been held up? It has taken nine months to sell a desirable piece of property. In local government we are obliged to move a good deal faster than that, and the Government were very keen to raise large sums of money from this particular sell-off. Have there been problems in relation to TUPE considerations? Are there difficulties in finding a purchaser for TRL who can guarantee that there will be no conflict of interest between its existing business and the business of the road laboratory? Is that the problem? Or are people not interested in guaranteeing the continuing development of all aspects of the laboratory's work? These range from pedestrian safety and child restraints to the safety of vehicles, the design of roads, the surfacing materials which go on those roads, how pavements are maintained in a good state of repair and the movement of transport through urban areas efficiently and effectively. SCOOT is one example of the programmes which the laboratory has developed. They do not necessarily all hang together with the interests of any individual private company or group of private companies. They are a disparate collection of activities. They include an interest in pollution control, which is not necessarily something an engineering company wants to take on. Therefore, that might be the problem.
It is my strong feeling that if this excellent and well-regarded institution is to be sold then by far the best way of doing that, and achieving what the Government themselves want to achieve in terms of independence of advice, would he to allow the management buy-out to take place. That seems to me by far the best solution. Like the noble Baroness, I hope that we may be informed even tonight that that will happen, in which case we are all wasting our breath. Perhaps I should sit down with that plea.
7.45 p.m.
Lord Carmichael of Kelvingrove: My Lords, as previous speakers have said, thanks are due to my noble friend Lady Castle for raising this matter once again. Tracing through the records I find that she has asked at least seven Questions on the subject in the past year. Her speech today indicates that she still requires a lot of answers.
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In various ministerial answers over the past 12 months there has been the suggestion or implication that somehow my noble friend's only reasons for objecting to the sell-off of TRL are the desire to maintain the status quo and an ideological resistance to privatisation. I served as a junior transport Minister under the noble Baroness, and I can assure the House that my noble friend was never one blindly to defend the status quo. Her record at the Ministry of Transport was one of change, innovation and boldness. She mentioned that she introduced seat-belts. I believe that her greatest fight with the status quo was the introduction of Blennerhassett—the drink-driving laws—which we all now accept as being one of the great innovations in transport. Her speech tonight was certainly not doctrinaire. I hope that the Minister will accept that we do not approach this subject in that way either.
To many of us TRL is a special case. Any body which has the task of guiding Ministers in the spending of the huge sums involved in road construction and transport infrastructure must be independent. It has an awesome task and responsibility in pursuing safety on our roads, which it fulfils with commendable efficiency.
I am particularly uneasy about the question of TRL's independence. That point has been voiced by many speakers in relation to the privatisation of TRL. On 19th April last year I asked the Minister whether he was aware of some of the work done for overseas countries on highly expensive contracts by the National Engineering Laboratory. I recall one particular case when one of the major countries of the world—America—had a huge engineering project and could not find a single organisation in that country, which did not have any connection with the industry itself, to undertake the necessary research. Every university engineering facility received subsidies from one or other of the big companies. So the work went to the National Engineering Laboratory at East Kilbride. It was a massive contract. The work was done behind safety screens so that no one would be able to interfere with it and the locks were sealed.
The National Engineering Laboratory had the same status as the TRL has now. I do not believe that we should let that go easily. As my noble friend Lady Castle said, TRL has a world-wide reputation. We do not have enough organisations left in this country with that kind of reputation; we should hold on to it. Under very strict security assessments, the job was undertaken in East Kilbride to the total satisfaction of the client.
At col. 486 of the Official Report of 19th April last, the Minister gave me two assurances. First, he said that no type of bid would be ruled out, including a management buy-out and running the laboratory on a non-profit making basis. Has he considered this hid, as he promised? Secondly, he said that the onus would be on the bidders to demonstrate that they would he able to maintain their independence. I cannot understand how one does such a thing when there is no public accountability, and where a private industry is primarily, and properly from its point of view, concerned with the bottom line on the balance sheet.
I am sure that the Minister is familiar with the House of Commons Cmnd Paper 647, published last July. According to the annual report of the TRL. the

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laboratory made a profit of almost £2.4 million on a turnover of £32 million. I should have thought that that was most satisfactory from a body whose first function should be the reduction of transport accidents, the saving of life and the general economy of the transport industry. I am sure that the Minister will have studied the TRL annual report. On page 16 of the annual report, the Minister will have noted the achievement targets set out by the Secretary of State. In 1994–95 five targets were set out. The targets, and the success with which they were met, are published. They are very satisfactory.
It is puzzling why the Government are so keen on the privatisation of this organisation. The Minister will be aware of the sheer professionalism of the organisation and the dedication and involvement of its staff. I visited it quite frequently and was fascinated by the work that it was doing and the general quality that was apparent in everything it did. It is an organisation with a reputation recognised world-wide which is a credit to the country.
Perhaps I may be a little doctrinaire for a moment. I remember listening to that brilliant speech of the late Lord Stockton. It was the famous speech about selling the family silver. In that wonderful way in which he was able to express matters, I thought the most telling part was when he said, "You sell the family silver, and this and that, and find that all you have left are the Canalettos". I believe that that is the point that the Government are reaching. In order to gain as much money as possible for an election treasure chest, they are willing to sell an asset built up by dedicated people over a long period of time. I hope that the Minister has had second thoughts and will give a serious opinion tonight that there will be an independent organisation. In other words, I support the idea of a management buy-out if that is the only way in which we can save this asset.
7.53 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, I am grateful to the noble Baroness, Lady Castle, for the opportunity to discuss the important issues concerning the future of the Transport Research Laboratory. As has been said in the debate today, it is the most recent in a long line of Questions which the noble Baroness has brought to your Lordships' attention. It demonstrates her commitment to examining the future of this organisation.
The debate is particularly timely, because, as your Lordships may be aware, we have recently received final offers from the two short-listed bidders in the sale of the laboratory. However, I can say to the noble Baroness, Lady Castle, that a decision has not been made; and that I am sure that my right honourable friend the Secretary of State for Transport will read carefully the transcript of today's debate and will have high regard for the views which your Lordships have expressed.
We fully recognise the value of the work which the T'RL has contributed over the years, and indeed the high reputation in which the laboratory is held as a centre of excellence. However, we have to look to the future. We
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cannot ignore the fact that the TRL has lost business. As a public sector agency funded by taxpayers' money, the TRL is necessarily constrained in competing for work with the private sector. Although one is often asked regarding a wide range of organisations, "Why not just waive Treasury rules and pretend that they are competing on the same basis?", a government-backed organisation competing with private sector organisations is not competing on the same basis and must be constrained in the way that those organisations are. The prospect of business declining, with no means of arresting that decline, has led to our decision to move the laboratory into the private sector.
The competition to transfer TRL began last summer when prospective purchasers were invited to submit initial bids to Price Waterhouse, our financial advisers. The sale memorandum giving details about the TRL business attracted a great deal of interest and several substantial bids for the laboratory were received in August. A number of those bidders were then asked to submit confirmed or revised bids by October on the basis of additional information about the laboratory, its business and markets.
We announced in November the two short-listed bidders and those bidders have now submitted their best and final offers. The noble Lord, Lord Carmichael of Kelvingrove, asked me whether I would stand by my assertion that we would consider the management buy-out. Indeed, that is the case. I do not think that I have participated in a debate for a long while in which so many statements that I have previously made in your Lordships' House have been quoted back at me. It is my duty to make sure that I have been entirely consistent. I hope that by the conclusion of my brief remarks this evening that will be proven.
The bids constitute a consortium comprising Pell Frischmann Consulting Engineers Limited, Mouchel Associates Limited, the Automobile Association and the Royal Automobile Club, and, on the other hand, the Transport Research Foundation which includes members of TRL's existing management. The foundation is bidding to acquire TRL as a non-profit distributing company.
The noble Baroness, Lady Castle, referred—it has been done in the past—to the KPMG Peat Marwick report. It has been suggested by some that the Government should simply have turned the laboratory into a non-profit distributing company, without having gone through the competitive sale process. In fact the KPMG report in 1993 identified two preferred sale options: a consortium sale; and privatisation as a non-profit distributing company. That is the choice we face in deciding between the final bids that we received for the laboratory.
For reasons of confidentiality, and to protect the integrity of the sale process, I cannot reveal details of the offers made by the short-listed bidders. Neither, as your Lordships will appreciate, can I disclose details of the discussions which have been held with both bidders. However, what is abundantly clear is that we have two very strong bids for the laboratory. I contest what the noble Baroness, Lady Thomas, asserted. She felt that the

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time-scale was long—I would contest that—and that we were in difficulty with a lack of high quality bids. That has not been the case. On the question of time-scale, it is important that when considering such an important organisation we go through a proper competitive sale process and give all the bids the proper, careful and detailed attention that they deserve. I am delighted that the TRL has received the quality of bids that it has.
The noble Earl, Lord Attlee, asked about the evaluation of the bids and how we would take that process forward. There is no question of either bid being given preference in evaluation of final offers. The final offers will be assessed on an equal basis against the sale objectives announced by the then Secretary of State for Transport in March 1995. I think that that is the point to which the noble Baroness, Lady Thomas, referred rather than our reasons for selling the laboratory. Our aims are to secure the continued provision of high quality independent research and development at good value for money across the range of the department's inland surface transport needs; to transfer the laboratory to the private sector as soon as reasonably practicable; and to optimise the net proceeds to the taxpayer. We expect to make an announcement about the selected purchaser shortly. The sale should be completed as soon as possible thereafter. I regret that we are not yet in a position where I can inform your Lordships of the results of the sale process.
I believe that the noble Baroness, Lady Thomas, touched on the issue of real estate and the property which is concerned with the laboratory. We intend to grant a lease for those parts of the sites at Crowthorne and Livingston required by the purchaser of the laboratory. This will include the research test track at Crowthorne. We envisage a separate sale of the freehold of the sites as soon as possible after the transfer of TRL to the private sector. The key point is that the purchaser will be able to lease the parts of the property which it requires for producing its research.
One of the key issues which was discussed by all who have contributed to the debate this evening is independence and impartiality. We have made clear throughout the sale process the importance we attach to TRL remaining as a source of high quality, independent research for government and other customers. We have asked for assurances from bidders that TRL's reputation for independence and integrity will be safeguarded under their ownership. We will be considering all aspects of final bids in selecting the preferred purchaser, including the bidders' proposals for ensuring that no conflicts of interest arise which might affect TRL's ability to provide impartial research and advice to government.
I do not accept the argument that has been put forward on a number of occasions that impartial research cannot be provided by bodies in the private sector. Nor do I share the view that commerce and integrity are incompatible. A great deal of research is
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done for the Government by a wide range of organisations, some in the state sector and some in the private sector.
Baroness Thomas of Walliswood: My Lords, I hesitate to interrupt the Minister but I do not believe that anyone has asserted that independent advice cannot be provided from the private sector. However, noble Lords are worried that inevitably—as was easy to forecast—bidders for the laboratory come from a sector which has its own engineering, construction and consulting interests. It is that conflict of interest which causes worry.
Viscount Goschen: My Lords, I believe that the point I was making has been put forward, although not in the debate this evening, I agree. That is why I sought to address it. On the noble Baroness's specific point, that is why we have to ensure that there are no conflicts of interest which are likely to produce anything other than impartial research for the Government. That is why we put so much effort into that side.
The importance attached by the Government to maintaining TRL's reputation for independence is reflected in the sale objectives. The crucial point which must be made this evening in response to a number of questions—how to guarantee the reliability, independence and impartiality—is that it must not be forgotten that the Government will continue to remain a big customer. Going on to detail, it must also not be forgotten that we are to provide guarantees of future research work. We would not hesitate to review or cancel contracts in the future if there were grounds for believing that TRL's independence and impartiality were in doubt. That shows strongly that any new purchaser would have to take the views of the main customer of the organisation extremely seriously.
Baroness Castle of Blackburn: Perhaps the Minister will allow me to intervene on the point about the relationship with the Department of Transport. Could he give the House an assurance that when a decision between the two bidders is reached the commercial consortium will not be offered more Department of Transport contracts than are offered to the Transport Research Foundation?
Viscount Goschen: My Lords, the bids will be considered on the same basis as I have outlined for the sale objectives. The selection of bidders will be impartial. It will be a fair competitive process. I can reassure the noble Baroness on the specific point which she makes; the competition will be fair to select the correct bidder.
In the limited time which I have available, the next issue to touch on is the guarantees of future work. To underline our commitment to TRL in the future, it is our intention to provide the laboratory with guarantees of future research work for a number of years. The details of the financial terms of the sale are for settlement with potential purchasers, but we have advised final bidders that we expect to be committing over £50 million of research work to TRL over the next four years. The guarantees will be subject to the delivery of high quality, independent and impartial research.

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As the customer, we are continuing to fund an extensive road transport research programme costing well in excess of £90 million over the next three years, that is despite the difficulties imposed by a tough public expenditure round. We have to look extremely carefully at our spending priorities but we have still managed to commit this level of funding.
I can see no reason why privatisation should affect the nature of the research that we will require. There is no reason why it should lead to important long-teen research work being abandoned in favour of more short-term commercially exciting work. That is the point the noble Baroness was making. It is the Government's position as a customer that binds the process together.
Privatisation will bring considerable benefits for TRL to enable it to compete more effectively across a wider market, providing material to both the public and the private sectors. It offers the laboratory the best prospect of securing its own future in a competitive environment. I believe that the debate this evening has highlighted some important issues and I hope that I have been able to reassure your Lordships about the future of the laboratory.
The Earl of Courtown: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.6 p.m. to 8.15 p.m.]

Family Law Bill [H.L.]
House again in Committee on Clause 2.
Baroness Young Baroness Young moved Amendment No. 4:
Page 2, line I, at end insert ("by reason of the behaviour of one or both of the parties which is destructive of their marriage and rendering them irreconcilable").
The noble Baroness said: in moving this amendment, I shall also speak to Amendments Nos. 18, 21, 23 and 24.
This amendment is concerned with the whole issue of fault. It is a matter of great concern and interest to the whole Committee. Amendment No. 4 is a very good example of the kind of amendment that we should measure against Amendment No. 1 to see how far it measures up to the kind of things that we all agree are desirable.
As I said at Second Reading, I am very concerned about the abolition of Fault, not because I am on some moral high ground jag but because I believe that the abolition of fault undermines marriage vows, civil contract and individual responsibility. The noble Lord, Lord Stoddart, made that point very well in his remarks on Amendment No. 1. Many lawyers with whom I have discussed this issue maintain that it undermines even the legal basis of marriage.
I find it quite extraordinary that if, for example, I hire a car and I break the contract, I am at fault. If, however, I break my marriage vows, I am not. I find that as a
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principle in life quite extraordinary. Indeed, I have listened with increasing astonishment to the arguments made in Committee. I strongly suspect that if we did not live in such a cynical society, the whole lot would be regarded as a very bad joke. I am quite frankly astonished at what has been proposed. Removing fault unquestionably lowers the value of marriage by removing nearly all the obstacles to divorce.
In preparation for this Committee stage, I reread the remarks at Second Reading of my noble and learned friend the Lord Chancellor on this subject. Like any examination candidate, I felt that I must attempt an answer. My noble and learned friend said:
"My noble friend Lady Young suggested that we were seeking to obliterate fault. I do not think one will find in the Bill any suggestion that there is no such thing as fault, but what one does find is an omission from the facts showing irretrievable breakdown of any reference to adultery or unreasonable behaviour. I posed a question at the beginning of the debate to which so far I have not heard an answer. How does the fact that a very quick divorce can be awarded in respect of a person who has grievously broken his marriage vows by committing adultery and can then re-marry very quickly indeed support the institution of marriage?"—[Official Report, 30/11/95; col. 786.]
I have the temerity to say that there is a great weakness in that argument. Of course I do not agree with quickie divorce. But that could be dealt with by having a year's delay. One does not have to abolish fault. I simply do not understand why the two matters are inextricably linked together. The argument has appeared all the way through this legislation. It comes out in the Law Commission's report.
The second argument put forward on Amendment No. 1 was by the right reverend Prelate, the Bishop of St. Edmundsbury and Ipswich. If I understood him correctly, his argument was that we are all at fault. I agree; we are all miserable sinners. am certain that I am one. I do not know about anyone else, but I am happy to call myself a sinner and indeed I am very conscious of it. But the fact of the matter is that if I drive my car at more than 70 miles an hour down the motorway and hit someone else, I am a miserable sinner and so, in terms, is the man whom I have hit; but I am at fault. It seems to me a most extraordinary argument that because we are, as it were, all at fault all the time, then one cannot he at fault in marriage. I do not understand that idea.
I have listened to many clever people with their clever arguments. When I started my political career on Oxford City Council, we frequently had great debates with the university. One met extremely clever people and I realised that their great advantage was that they could put a very bad case very well. One listened to their argument for quite a time and suddenly realised that it was complete rubbish. I feel that that is exactly what is happening in this case. I wish that it were a joke but it is not. It is an extremely serious matter. A combination of lawyers, through the Law Commission, and the Church, through the Bishops, have decided that there is no fault involved when two individuals who have undertaken what must be the most important thing that they ever do—get married and either make their vows in church or make a civil contract—determine to break those contracts. That seems to me to be unbelievable

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and would have been unbelievable to past generations. It is only in our present generation that such an extraordinary concept should arise at all.
I see my noble friend Lord Onslow in the Chamber. He said that in his experience the blame for failure of a marriage was 50:50—he corrects me to say that he said "70:30". We all have anecdotal evidence about divorces. I can tell him of probably my greatest schoolfriend, whose husband told her, when she was still in hospital having her second baby, that he did not love her any more and he went off with someone else. I do think that he was at fault. Absolutely nothing that the lawyers, the Church or anybody else can say to me will convince me that he was not at fault. I do not say that my friend was perfect, but in my opinion she was a very nice person and a very good wife. There are many such cases. To pretend that something is as it is not is very damaging. The noble Lord, Lord Stoddart, was right about what he said on the first amendment. We do need to take this matter very seriously.
The reason for this particular legislation is exactly the same reason that was given for the legislation in 1969. Therein lies the danger. In that case we were told that the legislation would abolish the quickie divorce. I approve of that. I think it is a very good thing. However, as the noble and learned Lord, Lord Simon of Glaisdale, said, quickie divorces were in fact arrived at by a series of statutory instruments from the Lord Chancellor's Department—not under the present noble and learned Lord but under a former Lord Chancellor. Now, we are changing our minds about that.
We are being told that this Bill ought to make the law more understandable and more respected. But will it do so? What is the message—the real message, when we are not in the Chamber or arguing legal points—that is going out to young people? The real message is that at the end of one year a man or a woman may divorce his or her spouse without giving any reason at all and against the spouse's will. That is the real message that is going out. None of the convoluted arguments saying that everyone is at fault and there should be mediation to think further about the relationship will carry because the central message will be that this is an easier way to obtain a divorce. As Melanie Phillips put it very cleverly, it is "no pain, no blame and no shame". That sums up the matter.
The inference that has come up about no fault is that the law makes no difference. I should be the last person to say that divorce law can make a vast difference to the numbers of divorces. But, if we sit in this Chamber and say solemnly that law has no influence on behaviour, what on earth are we all doing most of the time in passing legislation? Why are we doing that if we do not believe that it affects behaviour?
I suggest that one reason for that—one among many, because there is no one reason for the rise in the divorce rate—is that divorce has become progressively easier. There is no stigma attached to it. Now, one does not even call it divorce; people "split up"—that is the "in" phrase—so far as I can see for no particular reason at all in many instances. It is now part of the culture of life; but, as I said, there is to be no pain, no blame and
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no shame. To think that that is what we believe marks an advance! I simply do not understand it. I shall judge whether we can obtain real amendment to this piece of legislation by what happens on the series of amendments that I have tabled. The amendments are probably not technically correct or absolutely right but they are attempts to bring back some moral purpose to stand behind this legislation.
There was the 1969 Act, when we were told—I have been told since on many occasions also—that the whole concept of fault went at that time. That is not quite true. The present law gives irretrievable breakdown as the sole ground for divorce but, as we have been told, it must be proved by one of five facts: adultery; unreasonable behaviour; desertion; two years' separation with joint consent; or five years' separation where one does not consent. The broad motive behind that legislation in 1969 was to make the law more understandable and more acceptable. But, as the noble and learned Lord, Lord Simon, said, every prediction that was made about it has proved false. In fact, the net effect has been to increase the numbers of divorces. The next time the Law Commission reports—that is the basis of this discussion, the Law Commission Bill—it may have the same kind of arguments; namely, a law to make legislation more understandable and respected and to sort out some of the problems. We shall probably be given the same pious hopes and I believe that we shall simply see an increase in the numbers of divorces. That is what makes me so unhappy about this Bill.
I should like to take up the point of my noble friend Lady Elles about the American situation. A number of American states have had no fault divorce for some considerable time. Interestingly enough, only last week there was a report in the Wall Street Journal that one of the American states which had no fault divorce was considering repealing the legislation and returning to a fault-based system. Of course, the number of divorces increases. I know the difficulties concerning statistics and in comparing exactly like with like and measuring one thing with another. The fact of the matter is that wherever there has been no fault divorce, the numbers of divorces have risen. I should not like to stand by all the figures that I have seen quoted in newspapers but the numbers of divorces will go up because of how the average person—not the clever person—sees the matter. I ask noble Lords to picture in their minds the young person who has left school at 15 to get his or her first job. They see that there is no fault divorce and ask themselves why they should worry about the whole thing—indeed, probably why get married in the first place; and, let alone having got married, why worry about divorce. That is the message. The Americans discovered that it increased the number of divorces. We should take up the point made so well by my noble friend and look at foreign experience. After all, they must have something to tell us.
Whatever one does or does not do in legislation, one cannot legislate to abolish acrimony. I am blessed with a happy marriage and a happy family life. I say to myself every day how blessed I am. I have seen friends who, tragically, had extremely unhappy marriages. They suffer and feel bitter and acrimonious. The idea that

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suddenly, because they appear before a mediator—presumably they have to volunteer—the acrimony will somehow disappear seems to fly in the face of human experience.
It is easy for me to say that one should not feel acrimony. I have never had cause, so I do not know. However, friends of mine have suffered. I have received many tragic letters from people who have suffered; I have a file full concerning the Bill. At Second Reading, when talking about the Pensions Bill, I referred to the tragic letters I had received from older women, dumped for younger wives. Their husbands are at fault and the wives feel bitter. We cannot get rid of that acrimony. Increasingly, tragically, we find cases of younger men being pushed out of their homes by their wives after being married for around 10 years for no other reason than that they are bored. It is a disgrace. The man is quite justified in saying that the woman is at fault; she is at fault and should recognise it.
When one is married one has a responsibility to make it work. It is hard work. To go into marriage thinking it is a permanent honeymoon is ridiculous. It is hard work every day and one must learn to put up with all sorts of things that one may not like and have a sense of humour about it. Therefore, to think that we can abolish acrimony by this Bill will not do.
I turn specifically to my amendments. They are quite clear. Amendment No. 4 is an opportunity to debate the whole issue of fault. It makes the point that one may divorce by reason of the behaviour of one or both parties which is destructive to the marriage, making them irreconcilable. That may not be the absolute answer. I do not say that it is. Amendment No. 18 makes the same kind of point in rather different language. Amendments Nos. 21,, 23 and 24 come back to the concept that there is some fault.
I do not suggest, and would not dream of suggesting, to the Committee that the amendments are perfectly drafted. However, I ask every Member of the Committee to consider carefully what the message is that we are sending out to young people by this Bill. My grandchildren are fastened in my mind's eye. If we could project ourselves 20 years on, what will the Law Commission be saying then? We will have abolished fault; everybody will be able to divorce themselves after one year and probably, a little further down the line, it will be a case of, "Why bother with marriage at all?"
I do not say that as a complete joke. I am extremely worried at the way the argument is progressing down a slippery slope, the end of which nobody knows. Within a generation we have one in three marriages ending in divorce. There are 1.5 million desperately unhappy children as a result of divorce. Anybody who believes that smoothing the way will make it easier for children should talk to people in the education world.
Over Christmas I was talking to a primary schoolteacher who said that she could pick out the children in her class from broken homes. One can: they suffer and go. on suffering. Only recently we had an American postgraduate to lunch in our home, aged around 28. He was in a terrible state. He said, "My parents have just divorced and I cannot get over it." The
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idea that the pain does not go on and on for children and that it can somehow be smoothed out by some simple system is quite wrong.
I am searching for the right way to proceed and make no apologies for that. I am searching for a way to make people face up to their responsibilities. That is what we should be doing, not pretending that ht is all easy, not saying, as I have heard it said several times in Committee, "Well, they decided to bust up and that is it." It is not. They ought to have tried. Perhaps they did. They should try harder. That is what the Bill should be about.
I explained to my noble and learned friend that it is not my intention to press any of these amendments this evening. I open up this issue because I regard it as one of the big issues of the Bill. It is one by which I shall judge whether we really believe in buttressing marriage; in making people face their responsibilities and in recognising, when they have done something wrong, that they are at fault and that we should say so. I hope therefore that, if these amendments are not correctly drafted or do not fit, something will come back which will meet my case. It is a serious issue. I hope the Committee will consider it carefully. I beg to move.
8.30 p.m.
Lord Ashbourne: I support my noble friend Lady Young, who so movingly moved the amendment. The purpose is to ensure that the marriage contract cannot be broken unilaterally by one party against the wishes of the other without cause. It also introduces adultery, which is the only scriptural ground for divorce.
There should be a good reason for one party to obtain a divorce without the consent of the other. In a word, the amendment changes the Bill into what I would call a, "No fault, no divorce Bill". By that I mean that if there is no fault, there is no divorce. Everyone who married in a Church of England church will readily understand that. They took solemn vows that their marriage would be,
"for better for worse, for richer for poorer, in sickness and in health…until death us do part".
I am aware that many people do not have the advantage of being married in a Church of England church. Nevertheless, they will clearly understand my meaning.
While I am on my feet perhaps I can raise one point with my noble and learned friend the Lord Chancellor. Many people have referred to quickie divorces as representing 75 per cent. of divorces in the recent past. I am assured by the Office of Population and Censuses and Surveys that 32 per cent. of all divorces in 1993 were achieved in under six months and that, of those, only 15 per cent. obtained divorces in under six months where children under the age of 16 were involved. That is an important point. It is a comparison between the quickie divorce and the one year proposed by the Bill. If my noble and learned friend can clarify that point, I shall be greatly in his debt.
The Lord Bishop of Oxford: I am particularly sorry to find myself in disagreement with the noble Baroness,

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Lady Young. I say most sincerely that I respect the deep conviction and passion with which she speaks and share with her the sense of the sanctity of marriage.
I go further than that. She is right to emphasise the fact that when a marriage breaks down it is certainly possible, in a fair number of instances, to say—so far as we can say in this life—that one partner is more to blame than another. I agree with the noble Baroness. We can say that one person seems to be more at fault. But the point is that an indication of that fault, however grievous, is not necessarily an indication of an irretrievable breakdown of the marriage. We all know of people, friends of ours, where there has been an illicit relationship in the marriage but the marriage has nevertheless recovered and gone on. The fact that adultery has taken place has not been of itself an indication that the marriage has irretrievably broken down.
The noble Baroness gave a shocking example of a man who left his wife just when she had given birth to her second child. That is a grievous fault. But even in that extreme instance it is not necessarily certain evidence that the marriage has irretrievably broken down. Even in those dire circumstances that marriage could recover.
So the question at issue before the Committee is quite simply: what is the best evidence that the marriage has irretrievably broken down? The present divorce law has its basis in irretrievable breakdown and what is brought forward in the way of mental cruelty or physical cruelty is evidence that it has broken down. The question is: what is the best evidence that the marriage has irretrievably broken down?
It is the conviction of the majority of the Bishops on this Bench that better evidence than is provided by the present divorce law is a year's serious consideration and reflection, with the opportunity of marriage counselling for those willing to avail themselves of it, the opportunity of mediation, and the possibility, as the noble and learned Lord the Lord Chancellor so well put it, of real communication taking place between the two partners, perhaps for the first time for months and years. It is our equally sincere conviction that, if we are looking for evidence of an irretrievable breakdown, better than the evidence put forward by the Bill is a year's serious consideration and reflection with every opportunity being given to mend the marriage and to make arrangements which are the least acrimonious possible.
The noble Baroness stressed that some people are at fault. The word "fault" brings to mind the idea of punishment. If we break the law, we are punished. But one of the problems with the present divorce law is that a person can commit adultery and commit a fault against the marriage contract and be rewarded for it in their own eyes by being able to engage in another marriage. In this area there is not a simple happy relationship between fault and punishment. Sometimes it works in a perverse way: the person who is most at fault, the person who is most at blame, might get what he or she wants.
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It is our sincere conviction that the proposals of the noble and learned Lord the Lord Chancellor provide better evidence that the marriage has been tested to the limit and that it has irretrievably broken down. Although Melanie Phillips puts forward the evocative phrase, "No pain, no blame, no shame", if we examine the marriages of our friends, the marriages that we know have broken down, I can envisage few marriages which break down where there is no pain, no blame or no shame. As has been said once or twice before in the Chamber, when marriages break down there is always pain and there is probably a great sense of failure. So, striking and rhetorical though that phrase is, I do not think we should be beguiled by it into trying to think that breakdown, under whatever circumstances, is less than painful.
The noble Baroness rightly raised the question of what message will be going out from this place if the Bill is finally approved by Parliament as a whole. That is a very serious question. We do not want to send out the wrong message. But if we include within the Bill the basic objectives debated at the beginning of the day on the amendment of the noble Lord, Lord Stallard, it will be clear that it is a Bill designed to strengthen marriage so far as it can be strengthened by the law. I shall not speak about these matters now, but if we support one or two other amendments on marriage counselling and proper mediation I believe that we can not only have a divorce law which is effective and humane but we shall have done what we can to strengthen the institution of marriage.
8.45 p.m.
Lord Elton: As my noble friend is not rising to deal with that point, I should like to deal with one narrower, but I think germane, issue with her. She gave an extreme example of a divorce in which one party would seem to be not only innocent but grievously injured. What paths would her amendments leave open to that person, or someone in a similar position, who did not wish to put the other partner—their spouse—in the dock as the guilty party? As the right reverend Prelate said, the concept of fault is automatically followed by the concept of punishment. Since we have been quoting from the Scriptures fairly freely this evening, I would remind my noble friend that "Vengeance is mine, sayeth the Lord. I will repay". What of the "innocent" party who, for purely charitable reasons, does not wish to embark on the kind of battle or the kind of accusation which her amendments appear to leave as the only course open?
Lord Moran: I wish to take up briefly the point made by the right reverend Prelate about the message going out to the country from our debates and from our consideration of the Bill. That is very relevant to this series of amendments.
The matter is bound to be seen in simple terms and the fact is that the Bill will be seen as bringing in no-fault divorce on demand. That will inevitably appear to everyone as very much simpler. No one will be to blame. No one will be guilty of anything. One partner will be able to say that he or she wants the marriage dissolved, and that is it. The noble Baroness, Lady

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Young, put, with great passion and conviction, the case against the abolition of fault. I found what she said thoroughly persuasive.
I am concerned, too, about the position of what one is still just allowed to call the innocent party. There will not be any innocent parties if the Bill goes through because no one will be to blame. But we all know that there are many cases in which one partner or other behaves badly or goes off with someone else and the other party who has done nothing to deserve it is abandoned.
At the moment—it will be even more the case if the Bill goes through—decisions on the custody of the children and the division of the assets of the partnership may be made in such a way that the innocent party feels a sense of gross injustice. For example, if a woman goes off with another man, leaving her husband, and if she is then allotted the home, or half of it, and custody of the children, he will feel that that is grossly unjust because she has been at fault and he has not. I realise that there are many cases in which no one party is to blame, but there are many others known to us all in which quite obviously one partner is principally to blame. It seems to me that that should affect decisions about the custody of the children and the matrimonial home.
Therefore, I would hike to support very strongly what the noble Baroness has said. It seems to me that this matter is one of the central pillars of the Bill. I find the proposition wholly inconsistent with the objectives contained in the first amendment moved by the noble Lord, Lord Stallard, which, as I understood it, were welcomed by the noble and learned Lord the Lord Chancellor. I cannot see that, if those are the objectives which, I believe, we all agree on, reducing the process of divorce simply to having it on demand is consistent with them.
Baroness Elles: I support very strongly what my noble friend Lady Young has said about the disturbance caused by the kind of message that goes out from this House. It is extremely valuable that we are able to have this broad discussion on this series of amendments so that we might at some stage of the Bill find a point at which we can meet. So far I have. not come across any point which has been raised by my noble friend Lady Young and, if I may call them, her supporters and our Front Bench and those who support the Bill, which has been met.
My noble friend Lord Elton asked what would happen if someone did not want to attack his or her partner for fault, but wanted to have a divorce. At the moment they can have it after two years' separation and consent and there is no problem about that at all. What concerns me specifically is the amendment of my noble friend Lady Young as regards Clause 4(I)(a) where all that one needs is a statement by one or both of the parties that the maker of the statement believes that the marriage has broken down. How does one prove what the word "believes" means in that particular case? How does that show that this House supports the institution of marriage unless one is thinking of consecutive or serial polygamy? It is no support for marriage to think that someone can go along and make a statement saying, "I
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believe that the marriage has irretrievably broken down. We now have one year in which possibly to mediate or not, because it is voluntary. We have one year in which to discuss the problems such as the children, financial support, property and so on". They are all lumped together in a rather indigestible mess. In that situation one expects the poor woman or man who is left at home to agree within the year.
I wonder if anyone in this House really knows how people live in their homes. Can one believe that for one year they are going to sit at the kitchen table with a cup of tea wondering how they are going to reflect and consider their future at the end of one year of marriage? It is totally unrealistic. I simply do not see how people living in the real world can go through this appalling performance, with the person who has just left or who possibly is still living in the house or the flat, saying, "By the way, last week I signed a statement to say that I thought that our marriage had broken down". The other spouse is left sitting there reflecting and considering what the hell they are going to do in order to get out of it because they want to carry on with the marriage and the home. They want to keep the children at home and lead a decent marital life.
I do not know what the right solution is to this problem. But I am absolutely convinced that the clauses in this Bill that we have discussed so far are totally unrealistic. They do not support the institution of marriage in the way that I regard marriage and, as, I believe, many of my noble friends do. If we do not accept the amendment of my noble friend Lady Young I very much hope that my noble and learned friend the Lord Chancellor will consider discussing with us suitable amendments, which will support the kinds of ideas that a vast number of people in this House believe in.
Lord Stoddart of Swindon: I spoke earlier, and other people have certainly agreed, about sending wrong messages from this House, from Parliament and indeed from the Church. We have to he very careful about the messages we send out. Let us think of the message that we are sending out to people who are about to be married. They want to consider it very seriously. They recognise it as a big step. At the moment, of course, because of the pain and the blame, they realise that to get out of the marriage may be rather difficult. What we are now saying to them is, "Go ahead; get married. Do not give it another thought because after a year, if you do not like it, you can do exactly what you like. It does not matter about the other partner or the person whom you promised to love, honour and obey. After a year you will simply be able to go to court and give notice that in your view the marriage has irretrievably broken down".
Is that really the message that we want to send out? Quite frankly, I would not have thought so because I believe that the married family is the building block and the rock of our society. Members of the Committee may think that strange coming from this side of the Chamber. I hope that many of my other colleagues believe that, but some of their speeches do not seem to indicate it. I believe that very much

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indeed and that is why I am concerned that we do the right thing in this Bill and that we do not send the wrong messages to people, particularly the young.
The right reverend Prelate the Bishop of Oxford mentioned pain, blame and shame again. He said that we see it in our present marriages. Yes, we do, and often people are deterred from going off, perhaps on a whim, and deciding to get divorced because they have society to answer to. That very often saves a marriage and we ought to be concerned with saving marriages. If we make people think not once, but twice and many more times about going in for divorce and for actions which might lead to divorce, I believe that we shall be doing people generally and the nation a great deal of good.
As the noble Lord, Lord Moran, asked, what about the person who does not want to get divorced? Marriage is not some sort of hire purchase agreement; it is a contract of love and respect between people. Therefore, there are two people to be considered and not just one. In anything that we do we cannot just allow the person who believes that the marriage has irretrievably broken down to have the first word, the last word and every word about it. We have to take these matters into consideration and that is why I believe that the amendments tabled by the noble Baroness, Lady Young, are essential to this Bill. I sincerely hope that in due course we can come to some accommodation to see that the concerns which she and other people have are addressed.
9 p.m.
Baroness Platt of Writtle: In the media this Bill is referred to as the "No Fault Divorce Bill". To me, that seems a total contradiction in terms. In both party's minds there will be a catalogue of faults by the other partner. Very often—but not always—a divorce is a result of faults on both sides. As has been said this evening, sometimes more blame rests with one side than the other. It seems to me that what is being talked about in this Bill is the non-allocation of blame on either side. That may help mediation in the making of proper arrangements for the future of those involved. What worries me is the message going out from this Committee to those entering marriage who can now feel, "It won't be my fault if it fails". Therefore, I support the amendment which continues to recognise the concept of fault on one or both sides.
Like my noble friend Lady Young, I am concerned about the stability of marriage, the welfare pf a partner who above all desires the continuation of the marriage and seeks reconciliation, and the continuing welfare of the children which, to my mind, depends on the involvement of both parents. I hope that my noble and learned friend will be able to accept either this amendment or one like it, as my noble friend suggests, and perhaps stick to the present five-year period apart where we are talking of a unilateral situation. I therefore support my noble friend strongly.
The Earl of Onslow: Brighton, Reno, the Life Guards and Edith Summerskill. When the 1969 Bill came about, there was not going to be any attribution of
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blame until the intervention of the late Edith Summerskill who, as noble Lords will remember, was a seriously formidable lady. Her only rival in modern times is the noble and blessed Baroness, Lady Seear. I mean that as a compliment. Edith Summerskill said that if we did not allow the addition of adultery as a ground for divorce, that Bill would be a Lothario's charter. So an element of blame crept into the present divorce law which we all agree is unsatisfactory.
Brighton used to be the place to which people went to sit in rather uncomfortable hotel suites with a rather squalid woman so that somebody could come in with a camera and take a photograph. That was regarded as adultery. It was collusion, but it was called a divorce by consent until Parliament perfectly rightly realised that it was a very silly way to behave.
In Reno, whether you liked it or not, after three weeks' residence you could get a divorce. That is how my mother-in-law got a divorce from my father-in-law. That was divorce by consent. They had grown apart. The marriage just went wrong.
I do not know that we shall get anywhere by allowing "fault" in the law. We shall not make any more marriages stick together. Like my noble friend Lady Young, I am extremely happily married. How 'er indoors has put up with me for all these long years, I do not have the faintest idea but, bless her cotton socks, she has. In a way, therefore, it is easy for me to take this view.
Perhaps I may further suggest my Life Guards story to your Lordships. It is very similar to a story told by my noble friend Lady Young. The son of a friend of mine was a serving officer. He came back from manoeuvres to find a note on the table saying, "I'm leaving and I've taken my child with me". The child was aged nine months and they had been married for 15 months. There is no doubt at all that the lady concerned—the use of the word "lady" may be a mistake—was not a very nice lady, but we cannot legislate for the variety of fault. Mary Kenny put this point in a very good article in which she said that this Bill will allow a 50 year-old man to run off with a dolly bird; or a lady who suddenly decides to do a women's studies course at York to run off with a waitress. That is because no concept of fault is involved.
However, the vast majority of marriages do not break up in that way. I read of a case recently in the newspapers. A lady—again, perhaps that is not necessarily the right word—left her husband and ran off with somebody else simply because she was driven mad by him blowing his nose on linen handkerchiefs. She could not stand the snot in the laundry basket in the morning and was finally pushed into committing adultery. That is what happens with human beings.
My noble and learned friend on the Front Bench is trying to say that, human nature being what it is, marriage split-ups and divorce are inevitable and that what we must try to do is to make divorce harder—I genuinely think that he is doing that—and then, if divorce has to happen, to make it not easier but less painful. That seems to me to be a thoroughly civilised approach.

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The Norman Church was prayed in aid by the noble and learned Lord, Lord Simon of Glaisdale. It had ecclesiastical laws on divorce which were eventually found to be bad. The Roman Church has some very odd laws on divorce and the Papacy has been up to some serious chicanery on the subject. We then had divorce by Parliament. I believe that there were 100 or so in about 100 years. Then we had the divorce legislation of 1869 which proved to be very unfair to women, so A.P. Herbert introduced a divorce law which produced the Brighton syndrome. We then had the 1969 divorce law which produced the Edith Summerskill syndrome.
This is a horrid subject. Marriage break-up is horrid, but I genuinely believe that my noble and learned friend is trying to make the law more humane and more civilised. He is not saying that marriage is a bad thing. To pretend that my noble and learned friend the Lord Chancellor with his high moral background will send out the message that marriage is a silly thing is beyond comprehension. What I think my noble and learned friend is trying to do, and I fully support him in this, is to make divorce harder but to make it less painful when it happens. That seems to be the hallmark of a civilised society.
Baroness Faithfull: I must pay tribute to the noble Baroness for her brilliant speech, but I have to say that I do not agree with it. I support my noble and learned friend the Lord Chancellor. I do not believe that divorce is helped by having a fault clause.
First, no one can say what goes on between two people in their homes—in their bedroom, in their drawing room and in their social life. No one can know what is the fault. The fault is often attributed to the wrong person. I had a strange experience when a man looking terribly unhappy came into the office. I said, "What's up'?" He said, "I had a terrible fight over breakfast with my wife. I don't know whose fault it was, but somehow it seemed to blow up". The telephone went and he went even whiter. He said, "I must go home. My child has been knocked over by a car, and is very ill". He rushed home. He returned to the office in the afternoon. I said, "Well, what happened?" He had arrived home to find the child cycling happily around the streets. He asked what had happened. The wife said, "You were so beastly to me today that I thought that I would give you a fright". He could not bear it, and that night he slept away from home. Things went from bad to worse. None of us can ever say where the fault lies, ad it would be presumptuous of us to do so.
Secondly, the cruelty caused to children by an adversarial divorce is appalling. A child came to my office one day with tears streaming down his face. I said, "Robert, what is the matter?" He said, "They say my dad is a cad. I love my dad, and he is not a cad". What had happened? The husband had left the wife, temporarily as it turned out. It could be said that it was his fault, but who is to know whether it was his fault.
I look at the future. I take the point made by my noble friend Lord Onslow. First, we cannot judge whose fault it is; and, secondly, we have to look at the present and the future. If there is an adversarial system where the wife has her solicitor and the husband has his solicitor
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in court, and neither will give way, nothing will give way until they battle and fight it out. There is then acrimony and aggro between them. 'There will be no hope of ever helping that couple to come together. That is sad.
Divorce is wrong for children. Equally, many children suffer if they are in a home where there is battling going on all the time. What one has to do if the divorce is going through, and I have had to do it on many occasions, is to make it as easy as possible for the children. If parents go for mediation and can talk about the matter in a non-adversarial way, and a non-battling way, and not in a "I am going to win and you can jolly well go down" way, then it will be possible for the child to have a relationship with both the mother and the father in the future.
If we have the adversarial court system, children pick it up. With the access arrangements after the divorce, one or either, or both parents, lets the children go to the other parent with a great deal of animosity and anger. Also, human nature being what it is, one parent puts the child against the other parent. If a divorce goes through in a seemly, dignified, and, as my noble friend Lord Onslow said, a civilised way, there is more hope of the children having a good relationship with both mother and father in the years ahead.
I understand the point made by my noble friend Lady Young, that we may be sending out the wrong message. Are we sending out the wrong message? The divorce will take place anyway. We should surely see to it that the children do not suffer arid that there is no animosity. If one is talking about the Church, and I belong to the Church of England, there is such a thing as forgiveness.
Lord Phillimore: Perhaps I may add a few observations as a practising barrister, practising in the field of family law like the noble Lord, Lord Meston. In the context of the Bill it is important to remember, first, that it is a divorce reform Bill and, secondly, the reality of the law and practice at present. As has already been observed, 75 per cent. of divorces are based on behaviour.
The statistic of 32 per cent. was referred to but perhaps that does not reflect the practice that the decree absolute is often delayed until after completion of the financial relief proceedings. Be that as it may, the vast majority of divorces are on the basis of behaviour and adultery. Only a handful of defended divorces take place and very few of those are successfully defended. It is a sterile exercise. As was said by my noble friend Lady Faithfull, it is a traumatic experience for the children.
The present existence of fault in the law does not make it more difficult in practice to obtain a divorce. It exists on paper but in practice it serves little effect to restrain a divorce. As the noble Lord, Lord Irvine of Lairg, said at the beginning of the debate, given a fair wind an undefended divorce can take place within three to four months. The fact that it does not is because the decree absolute is often delayed, as I said earlier.
Therefore, the fault serves only to Increase bitterness and acrimony. I understand that the purpose of the Bill is to reduce that and to make the position easier in

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particular for the benefit of the children and therefore of society as a whole. In addition, the purpose of the Bill is to give time for reflection. That may save some divorces but it is putting the matter upside down to suggest that a divorce reform Bill could possibly improve the chances of marriages being saved, other than in some cases.
Another consequence of a defended divorce under the present law is the increased expense to the considerable detriment of the family and children. I suggest that the message of the Bill is to give an opportunity for reflection, a greater ease of resolution of all the difficulties which couples face on divorce, which may lead to some marriages being saved, and, above all, less trauma for the children.
9.15 p.m.
Lord Irvine of Lairg: When I listened to the noble Baroness, Lady Young, on her strictures on the clever, I was reminded of the late distinguished Iain Macleod, who is remembered by Members in all parts of the Chamber and Parliament. The most severe criticism that could be made of him was that he was too clever by half. As I understood the noble Baroness, that was directed at the noble and learned Lord in putting forward a Bill to which she can find no good answers but she doubts is right. I accept that there is in this area no perfect system. One must look to do the best that one can in an imperfect world. It would be nice if everyone took correct decisions and prevented bad things happening, but that is not the way of the world.
I found a central difficulty in following the noble Baroness when she maintained that divorce should be exclusively fault-based. I found the contribution of the right reverend Prelate the Bishop of Oxford compelling. Does that mean that there is to be a right to divorce for fault, for adultery, for unreasonable behaviour, regardless of whether there has been irretrievable breakdown? Does that mean that if fault is established there is a right to a divorce without any need for a year's reflection and consideration without any need for mediation? The noble Lord, Lord Ashbourne, said, "No fault, no divorce". I ask, to what sensible purpose if the marriage has truly broken down?
I can express myself on this important issue very briefly. When a marriage breaks down, the courts should recognise that fact and deal with the consequences in a way which minimises acrimony in the interests of the parties and of any children. It can make no sense at all to compel parties to remain married if the marriage is dead because, first, that cannot be done in a free society. The disgruntled partner will simply up and leave, start a new relationship and have more children who are innocent and just as entitled to be brought up by married parents as are the children of the first marriage.
Even if people who are determined to part could be compelled to remain together—in fact, it is not possible—it would harm the children because they would be brought up in a loveless home and be denied the advantage of any happy parent. I daresay that I could agree with the right reverend Prelate the Bishop of
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Oxford who said that there are some cases where, no doubt, it could be demonstrated that fault is all one way, but I should have thought that that would be a very rare case. I believe fault to be a very clumsy instrument with which to dissect a failed marriage. It must be in the rarest case that the breakdown is the exclusive responsibility of one party.
Let us take, for example, adultery. The wife refuses sexual intercourse and the husband goes elsewhere. I am not sanctioning adultery. But can it be said that the husband is exclusively to blame? Further, let us take violence. The husband hits the wife. I do not sanction violence, but the husband does so because the wife who is more articulate taunts and humiliates him. No one is exclusively to blame.
I was much impressed by the points made by the noble Baroness, Lady Faithfull. A fault-based system leads to protracted litigation. It is the adversarial system which, apart from being expensive in terms of public funds and in court time, will also increase acrimony to the detriment of the children. The children may feel compelled to take one side or the other. I could not agree more with the noble Baroness, Lady Faithfull, that to eliminate a fault-based system of divorce would lead to a much better prospect of the children at the end of the day having a good relationship with both parents.
If divorce is made more difficult, the consequences will be that the rate of illegitimacy will rise. In my view—and, I believe, in the view of the overwhelming majority of my colleagues—the Bill, on the whole, subject to some improvements that can be made to it by way of amendment, gets the balance right.
Lord Meston: I agree with everything just said by the noble Lord, Lord Irvine. Members of the Committee should think long and hard before introducing fault into the Bill. Perhaps those who should think most about it are those who were inclined to support the first amendment moved today by the noble Lord, Lord Stallard, which sought to introduce into the Bill a provision,
"to minimise the bitterness and hostility between the parties and reduce the trauma for the children".
There is no doubt that, in practice, allegations of fault at the time of divorce can and do raise the temperature between the estranged couple and inevitably make the prospects of reconciliation, and of their future co-operation, that much more difficult and unlikely. It seems to me that the Bill has the great merit of removing that particular source of heat, replacing it with sources of light—harsh light under which the parties are required to face the realities of what they are doing and what they may face in the future.
I understand and respect the arguments put forward by the noble Baroness, Lady Young, although I do not agree with them. Under the existing law, three of the five factual bases upon which a divorce can be granted are dependent upon allegations of fault. The existing law teaches us what those who support the noble Baroness must consider; namely, that there are problems of proof. For example, how in practice does one prove fault?
I am a nuts and bolts lawyer like the noble Lord, Lord Phillimore. We see divorce cases day in, day out

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and the vast majority of those are undefended divorces, as indeed will be divorces under the present Bill before the Committee. They will depend upon documentary proof. Under the existing system that involves a petition supported later by an affidavit by the petitioner confirming the allegations made. As the Law Commission accurately stated, 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 a full two years.
In considering whether it is desirable to continue to have fault-based grounds for divorce, the Committee must consider whether., and if so how, the defects of the existing system can be improved. I suggest it is highly unlikely that better ways of establishing fault to the true satisfaction of a court can be devolved except at great expense. As the noble Lords, Lord Phillimore and Lord Irvine of Lairg, said, if the law is to continue to allow allegations of fault to be made, in fairness the law has to allow allegations of fault to be disputed and to be defended in court at the expense of the parties or at the expense of the taxpayer, and, as the noble Lord, Lord Phillimore, and the noble Baroness, Lady Faithfull, said, to the detriment of the parties' funds and to the detriment of their children.
One other matter perhaps needs to be emphasised and it arises out of a point made by the noble Lord, Lord Moran. In removing fault as a basis of divorce one is not removing the possibility of introducing allegations of misconduct as relevant consideration when the finances come to be considered. As the noble and learned Lord the Lord Chancellor stated at an earlier stage in our debate this afternoon, the Bill does not disturb the existing guidelines in the Matrimonial Causes Act for consideration of financial matters. One of those guidelines involves consideration by the court of conduct by one of the parties if it is inequitable to disregard it. In practice of course it is only in fairly extreme cases that conduct is considered relevant in financial matters. It is difficult for the court to quantify misconduct. For that perfectly sensible and pragmatic reason, in the vast majority of cases the court does not attempt to do so. I repeat that the Committee should think hard about the practical consequences of introducing fault into the Bill as it is presently framed.
Lord Simon of Glaisdale: At the risk of egotism I am impelled to intervene to give my testimony as a matrimonial judge for 11 years that it is simply untrue to say that in every case, or even in a significant number of cases, it is six of one or half a dozen of the other. There were a number of cases where one felt that, but it was a great minority of cases. That is not only my own testimony; it was the testimony of David Morris in the book from which if cited earlier, borne out by my noble and learned friend Lord Hailsham.
It would be adding cruelty to injustice if when a woman is cast away and unilaterally repudiated one was to say that it must be partly her own fault. That would be a monstrous cruelty.
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The noble Lord, Lord Meston, has just asked how one proves fault. The answer is that it has been proved for 1,100 years in the matrimonial courts. It is still proved in the Church courts, which still take cognisance of the misdemeanours and faults of the clergy. No doubt in the forum internum the sin is lust, but in the courts what is investigated is incontinence. There was a case of that only last year. The Church does not say that the ministry has irretrievably broken down, still less does it allow for the parochial church council to file a notice in the diocesan office saying that in its view the ministry has irretrievably broken down. As it has always done, the court investigates fault. That is the role of the law generally in social control and social influence. If one deprives the law of that, one demoralises the law.
Listening to the optimistic speeches of the noble Baroness, Lady Faithfull, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Irvine of Lairg, as to the result of this Bill, those of us who lived through the 1969 Bill must have had memories startlingly evoked. There was the same crass optimism, the same foolish hope, that all would be better. It was called a "kiss and make-up" Bill. Yet the first effect was that divorces increased by 44 per cent., and the number of children affected therefore also increased by 44 per cent. However, that was not temporary. The number of divorces continued to increase, until today there are two and a half times as many divorces and two and a half times as many children are affected as before 1969.
I cannot hear what the noble Lord says, but of course I shall give way to him.
Lord Elton: I shall wait for the noble and learned Lord to put the instrument to his ear. I wondered whether he would show how the effect he describes was propter hoc and not post hoc.
Lord Simon of Glaisdale: All I can do is look at the figures and ask what happened in 1970 to cause a 44 per cent. increase. If there had been a gradual upturn the intervention of the noble Lord, Lord Elton, would be justified. However, there was a sudden jump, and the increase was maintained. The only sensible course is to ask what happened that was likely to cause the 44 per cent. increase. It is unlikely to have been only a fortuitous result of the passing of the 1969 Act.
The Earl of Onslow: Will my noble and learned friend give way briefly? Does he suggest that if we went back to the 1935 divorce legislation, the numbers of divorces would fall to what they were in 1969? And would human happiness be consequently increased in any way whatsoever?
Lord Simon of Glaisdale: As I feared, I did not hear what the noble Earl said. However, as I respect what he says in general, I shall certainly read his comment tomorrow. If it calls for a letter, I shall write to him.
We would be very foolish if we were again to repeat the optimism that was expressed in 1969. Is this a kiss and make up Bill? Is this a kiss and break up Bill? That seems to be the best that can be hoped for: that the break up will be less acrimonious.

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The noble Lord, Lord Meston, did not explain why allegations of fault at the stage of mediation, and investigation of property rights, financial rights, and sometimes custody, were in any way less damaging to the children than allegations of fault at the time of the divorce. Of course they are equally damaging if they are going to be damaging.
I do not want to trespass on my next amendment, but parents can quarrel in front of their children, and quarrel damagingly. On the other hand, they can be solicitous, for all their differences, as regards the effect upon the children.
There is abundant evidence that it is the break up of the marriage, the separation, which causes the damage. In a moving speech at Second Reading, the noble Baroness, Lady Young, referred to that research. It is no use our saying, "We shall make things easier for the children". We may make it easier in certain cases, but every time there is a surge in divorce more children will be at risk.
Baroness Seear: With all respect to the noble and learned Lord, Lord Simon of Glaisdale, we cannot let him get away with the argument that the increase in divorce is necessarily the result of previous divorce legislation. After all, until relatively recently women had no means of earning a living if their marriage broke up. I wonder how much the increase in divorce is a result of the fact that women now have a degree of economic independence. I wonder also how many marriages broke before but they did not break to the outside world because the woman had no option as to what to do if she left the home.
Some noble Lords may remember Herbert Baker; I believe that he was a judge of the Family Division. He said that it was not just enough to know who threw the rice pudding; one had to know how the rice pudding was cooked.
Finally, we must be careful regarding the use of the language that we use. Some words have implications which can lead to quite wrong conclusions. We talk about the contract of marriage. Of course there are legal elements to that contract. But one thing that you cannot contract to do is to supply an acceptable amount of love. Therefore, to use the word "contract" in connection with a relationship of which the whole heart and centre is love seems to me a most misleading use of language.
Baroness Park of Monmouth: I wish to make two separate points. Although I greatly respect the conviction of the noble Baroness, Lady Young, and all who support her, I was the chairman of the Legal Aid Advisory Committee for six years. At that time people were beginning to look again at the whole problem of divorce. An idea gradually emerged and it seems to me that we cannot just write if off as an interesting technical idea. It was that there had to be a period of thought, with mediation not just conciliation. Many people do not want to be conciliated but they need to be required to accept the opportunity to sit and think about the consequences that would follow from divorce. We ought not to disregard the immense variety of support for that
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from scientific research and from the experience of conciliation groups and practitioners. It would be wrong to ignore that.
My other relevant experience is that, as head of an Oxford college, sadly I had to see the effects of divorce on undergraduates. I therefore understand clearly how terrible it is. However, I still feel that the Bill is making a positive effort to enable people to look at the facts, consider what the consequences will be and take time. The difference between arguing privately in the mediation process and sorting it out and being adversarial in court is great. In the court you are in public, you are committing yourself and taking stands that become set in stone.
When we worry about the message that we send to the country, we should be worrying about what the Bill will do. It seems to me that there is everything to be said for trying to give people a chance to stop and think clearly. The noble Lord, Lord Irvine of Lairg, used the comparison about creating light rather than heat. Therefore, on those two counts, I strongly support the Bill.
Earl Russell: The noble and learned Lord, Lord Simon, and I have many times appeared on the same side of an argument with great pleasure, and, I hope, with great profit. I am sorry that on this occasion we appear on opposite sides but I am sure that the noble and learned Lord will understand that there is a certain built-in paradox in the notion of a pair of individualists. However, that is what we are and we have always recognised it.
My noble friend Lady Seear saved me a little time by making the first point I had wished to make. It is vital. We do not want to preserve marriage by turning it into a prison. The economic independence of women is a fact and we must all welcome it. But we must recognise that it has consequences.
The noble Baroness, Lady Young, said in her speech a long time ago now that she did not understand why we were sitting here at all, if the law did not influence behaviour. Of course the law influences behaviour, but it influences rational behaviour a great deal more than irrational behaviour. Love—thank God!—is irrational behaviour. It would not be nearly so tough under pressure if it were not. As the story of Romeo and Juliet and hundreds of others illustrate, love is an area in which people are rather counter-suggestible. It is more difficult to influence them through the law than it is in some other fields.
I am sorry that the noble Lord, Lord Habgood, who spoke so well on the subject at Second Reading, is unable to he here. He argued first the difficulty of identifying the fault. Clearly, normally there is fault. The fault may be in having made the marriage in the first place or it may be in something that we shall never discover. No one knows everything that passes between a married couple in private. Very often the worst and cruellest faults in marriage can lie in inaction rather than action.
Perhaps I may be forgiven a reminiscence. I have not forgotten an incident when I had been married a couple of months. We had been out to dinner, and my wife got

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food poisoning and spent most of the rest of the evening being violently sick. It somehow turned me over inside to find how pathetically grateful she was that I was not repelled by that experience. Had I been repelled, I think that that would have been a fault capable of contributing to the first stages of a rot that dissolves a marriage. However, I do not think that any court in the land could ever have pinned that down to me. I should have made a perfectly rational, reasonable sounding defence and I do not know whether anybody would have penetrated it. But I think I should have known at bottom that I was wrong.
It is suggested that somebody who has been abandoned is insulted by being told: "It must have been partly your fault." Nobody is proposing to tell anybody that it must have been anybody's fault. In the end, my first position is that, although I believe there is fault there, we cannot know where the fault lies.
My second point is that the fault, if we can find it, may not be anything that is a matrimonial offence at all. I take one actual incident. A person was driving up to a traffic light on an uphill slope and did not see until much too late that it was red, so he ran into the back of the car in front and did a good deal of damage. Being a quick thinker and unscrupulous, he leapt out of the car, ran up to the driver of the car in front and said, "You mustn't let your car slip downhill at a traffic light." The wife of the man in front said, "How often must I tell you not to do that, dear?" That, in my book, was a fault. It was a withdrawal of trust such as might put a rot inside a marriage. But it would not be regarded, in any classification I can imagine, as a matrimonial offence.
The noble Baroness, Lady Young, dwelt on the tragedy of the older woman dumped for a dolly bird. It is a tragedy. I think none of us would maintain otherwise. What I do not understand is how that woman is one wit better off for the preservation of a legal shell of a marriage in which her husband will not live again. I do not understand what she gets out of it.
The noble Lord, Lord Ashbourne, was also much concerned at the notion that a marriage could break up because of the withdrawal of the commitment of one partner. I should like to ask realistically as distinct from legally: has it ever been otherwise? In the 17th century, when a husband got tired of his wife, he used to say that he had gone to New England. I am not at all convinced that all of those men had gone to New England. Indeed, some of them were later proved not to have gone to New England. I cannot see what useful purpose is served by legally preserving the fiction that there is a marriage when there is no relationship between the parties.
Also, if we are to have fault, I do not understand why this group of amendments confines itself to adultery. Why not cruelty? That is a very much more obvious fault and often a great deal easier to prove? And that is important.
I first learnt about fault-based divorce when I was a child of divorcing parents at the age of 11. As the noble Baroness, Lady Faithfull, said, it was an intensely painful experience. But what was painful was the matrimonial breakdown, not the divorce. The divorce,
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when it ultimately came, represented a considerable diminution of the pain which had been experienced while the conflict was in progress.
What was beyond my comprehension at the age of 11 was the notion of punishment inherent in fault. In a divorce based on desertion, it was essential for the deserted party to pretend that he (or she) wanted the other party to return. If one party did not want the other to come back, there could be no divorce. So if both parties wanted a divorce, they could not have one. If both parties wanted to be apart, they lad, in law, to be together. I could not get my childish mind around that. My adult mind cannot do any better.
I must apologise to my noble friend Lord Meston in that I was even more horrified when I discovered the existence of the office of—as it was then—King's proctor, to which he is now counsel, and found out that it was necessary to go around investigating to see whether one could prove collusion. It was necessary to see whether one could prove that both parties wanted the divorce because, if they both wanted it, they could not have it. It was not a punishment to give the parties a divorce but a punishment to withhold the divorce.
At the beginning, I said that marriage is not a form of imprisonment. I say it again.
The Lord Chancellor: It seems some little time since my noble friend moved her amendment. We have had a fairly wide-ranging debate and it is not for me to go over all the ground that has been covered.
I should like to put some matters to my noble friend about how she anticipates that the system that she proposes will work. I understand from Amendment No. 4 that the process is to be initiated by whoever is initiating the process, the wife or the husband, already committing themselves to the view that the behaviour of one or both parties is destructive of their marriage and that they are irreconcilable. That seems to be taken a little further with Amendment No. 18 to Clause 4.
There is then Amendment No. 23 which inserts into Clause 4 a new subsection (1A). The requirements there proposed are that:
"(a) the other party ('the respondent') has committed adultery and the petitioner finds it intolerable to live with the respondent"—
that has to be proved at the end of some period—and,
"(b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent: or
"(c) the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the statement".
That last paragraph (c) is not based on conduct of any kind except a separation. So that is not a proposal for a fault-based divorce. A mixed proposal is being put forward.
My noble friend said that she agreed with the abolition of the "quickie divorce". I do not feel that "quickie divorce" is a precise term of art. What I mean by "quickie divorce" is a divorce which proceeds more quickly than it would if it were based other than on fault. I am not clear what my noble friend is proposing in that connection. If the system proposed in the three

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amendments is to operate, the result will be that one can obtain a divorce more quickly by reference to fault than one can without it. That is the essential of the quickie divorce.
I shall answer the questions raised by my noble friend Lord Ashbourne in a moment. The essential point that makes it more difficult to say that fault in some way supports marriage is if one has a divorce that operates more quickly where there is fault and gives the benefit of the right to remarry to the so-called guilty party more quickly than would happen in the event of there being no fault. I do not understand—no doubt somebody will explain to me—how that helps in showing that fault is something blameworthy.
Next I want to turn to what fault is. My noble and learned friend Lord Simon of Glaisdale spoke of 1,100 years of justiciability of fault in the ecclesiastical and civil courts. But conduct has enlarged somewhat over that 1,100 years; it did not stand still. My experience, which is now becoming somewhat outdated but nevertheless is very much in my mind, is that it was much easier to make allegations of unreasonable conduct in recent times than it was to make allegations of cruelty in times past. Those who practise in the present day in this area of the law recognise, as I have seen recognised in articles, that the present fault law, including as it does unreasonable conduct, is a way of permitting the obtaining of divorce by consent in less than two years.
Some people will say, and I have read articles stating it, that hypocrisy of that kind must be accommodated. I may be wrong, but I do not believe that hypocrisy in legislation and the way it operates is a good message for young people. The law should be straightforward in this area and as clear and consistent as possible.
Much has been said about the increase in the number of divorces over the years since 1969. If one looks, one will find that the increase in the number of fault-based divorces has been at least as great as other based divorces. There is no evidence in the figures—I am subject to correction by anyone who is able to bring it forward—that relying on fault is in some way a restraining factor on the incidence of-divorce.
I shall now face the challenge put before me by the noble Lord, Lord Moran, to test the amendment by reference to the opening amendment moved by the noble Lord, Lord Stallard. Before I do so, perhaps I can give the figures in relation to quickie divorces. The figures for 1993, which I have had analysed, show that around one-third (52,000) take under six months and around 78,000 take between six months and one year. Three-quarters take less than one year. I understand that the median period is six months.
I come to testing the amendments by reference to the first amendment and agree that that is a good way of looking at it. Paragraph (a) states:
"to support the institution of marriage".
The amendments do not have any specific claim to do that. It was made plain, and I entirely support that point of view, that marriage involves a continuing commitment by two parties, the one to the other, based
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on mutual love and respect. In its very nature it cannot continue to operate as a true marriage except for so long as that commitment continues. The matrimonial vow, as I understand it—I shall be corrected by those who know more about this than I—is essentially to continue that commitment for so long as both live. It is a breach of that commitment by either to discontinue the commitment. But the commitment to marriage essentially must be a joint commitment of two parties. You cannot have a continuing marriage in which one party only retains the commitment. The marriage is then dead. However sad that is, it is a fact. One has to take that point into account. I do not believe for a minute that it supports the institution of marriage to seek to keep in place a marriage which is no longer a marriage.
Paragraph (b) states:
"to ensure that all practicable steps with a view to preventing the irretrievable breakdown of marriage are taken".
One of my fundamental points about the kind of approach that is involved in the amendments of my noble friend Lady Young is that the allegation about the irretrievable breakdown of a marriage or the irreconcilable nature of the conduct of the parties is made at the beginning of the process and therefore the opportunity for steps to be taken at that stage to prevent irretrievable breakdown of the marriage has gone. You have already come to the conclusion, as an essential step for the starting of the procedure, that the marriage has already broken down.
One of the most important aspects of this Bill, and one which I believe is very much a matter of consequence, is the opportunity, even at the late stage when someone is contemplating divorce, of a period, a genuine period—I think a year—of consideration and reflection. You cannot have such a genuine period if the parties are already committed to a situation in which it is said, "This marriage has already irretrievably broken down". I cannot see—I have thought about this once or twice, as the Committee can imagine—how a fault-based divorce system can accommodate that in any realistic sense. If you are already committed to the view that your marriage has broken down there is no point in waiting a year to see whether it has or of having any procedure in place to help you find out.
Paragraph (c) states:
"to ensure that the parties understand the practical consequences of divorce before taking any irreversible decision".
Exactly the same point applies to that. Fault-based divorce requires that you come to a decision before you start that there has been a fault which is destructive of the marriage. So it is a little late to be told about the consequences after that. I agree that by the time someone is thinking about divorce it is already very late. That is what is behind my idea that we must try to give help earlier if we can. But I do not want to despair or to lose hope, even at that stage, where the court is formally involved. You cannot force people to come for help earlier. But if they have to come to court for some kind of order then at least you have an opportunity, which is an important opportunity and should be taken, for reflection to heal the relationship.

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Paragraph (d), which is perhaps the most important paragraph of all, states:
"to minimise the bitterness and hostility between the parties and reduce the trauma for the children".
My noble friend Lady Faithfull, with all her experience of these matters, spoke movingly about the effect of divorce on children. Surely—as I explained earlier, this is my motivating reason for bringing this Bill before Parliament—the unnecessary trauma for children in the present system is clear and we should do everything that we possibly can to eliminate it.
I have never suggested, although it has been frequently said that I have—it always makes me wonder if people have to misrepresent one's position in order to knock it down because they are short of arguments for knocking down one's true position—that it is possible to take the pain, shame or blame out of divorce. I do not believe that it is. But what I do believe is that it is possible to avoid introducing unnecessary pain, hostility and trauma into the sad fact of a marriage breakdown. I believe that a system in which one makes allegations, particularly of conduct against the other, is exactly of that character and introduces unnecessary trauma into the situation.
It is for those reasons that I have not found it possible to go down that road. I know and well understand my noble friend Lady Young and her attitude to these matters. I respect her point of view. Indeed, our agreement as regards the first amendment shows that we share the same aims. I should like to know how this system that she proposes will meet the set of requirements that I have suggested.
Baroness Young: We have had a very long debate on this subject. One thing is quite clear. There are very deeply divided but sincerely held opinions about this matter on which we are possibly unlikely to agree. I indicated at the beginning that I was not going to press these amendments. I shall, of course, read very carefully what my noble and learned friend the Lord Chancellor said because he went into great detail. I would like to take the opportunity to study it.
I admire my noble and learned friend's sincerity on this matter. I am quite certain that he believes sincerely that this Bill will in fact make matters better otherwise he would not have brought it before us at all. He said that he cannot understand why I believe that continuing fault will in any way help in divorces. The point is that it is not that I believe that fault in divorce is going to help anything at all, but that the abolition of fault as a principle is going to have a disastrous effect on all sorts of people long before they get married because they will start off from the wrong place. It is that which I believe is so dangerous in society, but nobody has answered that point.
I am sorry to disagree: with the right reverend Prelate the Bishop of Oxford. I disagree profoundly with what, I am sorry to say, is the attitude of the Church. He said that if you have fault you have to have punishment. I was quite interested to hear him say that because normally in this House we do not allow punishment at all. I thought that we believed that that was rather a bad thing in most cases, but I suppose it has now been put
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up because it is thought that I am not really politically correct. Well, I am not politically correct and I do not pretend to be that, but I do not believe that to be a very good argument. I am not talking about punishment and I have not used that word. I would not want it implied that that is my intention.
I am out to face reality because I believe that is just what this Bill does not do. I have listened very carefully to all the arguments. Indeed, we have a number of lawyers speaking in this debate, but the professional advice is itself contradictory. My noble and learned friend Lord Simon of Glaisdale speaks with his years of experience as a judge and says that it is. possible to deal with the question of fault in divorce, but others seem to think that it is not possible. Lay people in this situation must make up their own minds on the basis of the evidence that they have. I support very much what the noble and learned Lord, Lord Simon of Glaisdale, said on this matter.
I am very sorry to disagree with my noble friend Lady Faithfull, but I do disagree profoundly with what she said—not because I am not deeply concerned about the children of divorces. I am concerned because I have seen too many desperately unhappy children as a result of divorces. However, the question that my noble friend must consider is whether or not there will be more divorces as a result of this Bill and therefore more unhappy children. Of course, I am in support of doing everything that I can to try to help those children—nobody would want otherwise—but the greatest help of all would be to create a framework in which there will be fewer divorces. The real danger is that in this legislation we are creating a world in which there will be more divorces, not fewer.
I realise that there are many faults in the amendments. I do not pretend that they are perfect or that they are the last word. I am quite prepared to take them back and to think again. Amendment No. 4 would permit divorce only on the ground of fault or of behaviour which was destructive of the continuance of the marriage. Amendments Nos. 21 and 23 seek to adapt the present law and to permit divorce where both parties seek it. But where only one party seeks the divorce, the provisions would require one of three possible reasons to be proved: adultery, behaviour or five years' separation. That is a slight variation on what we have now. That amendment needs to be considered with the later amendment to Clause 7 which increases to 18 months the minimum time for all divorces.
If I may say so in support of the amendments, it may well be that both parties to a marriage are at fault or in some way believe themselves to be: incompatible. However, the fact is that in a substantial proportion of cases, the fault lies in the behaviour of one or other of the parties. Indeed, the White Paper acknowledged that at Section 4(4) which stated that the retention of fault received significant support in the consultation process on the Green Paper. So, even those who are experts are clearly divided on this issue.
We have not had an answer to this, but the fact is that the Bill removes all protection for the innocent spouse. As I see it, a husband or wife can simply say that the

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marriage has irretrievably broken down whether or not the other party wants a divorce. That is where we are. Again, that seems an extraordinarily bad signal to send to young people.
It is late now and I do not intend to go over all the detailed points that have been made. I thank very much all those noble Lords from all parts of the House who have supported me in this series of amendments on fault. It is only right to say that this is not a matter which those of us who feel strongly will allow to drop. I do not intend to press the amendment this evening because if I may say so, using the words of the Bill, perhaps we all need time to "reflect" on what is the right thing to do. I shall certainly reflect on the criticisms that have been made of these amendments and shall consider coming back with different amendments on Report if my noble and learned friend cannot produce amendments that he would find acceptable.
It would be quite wrong at this stage to allow in this legislation on the abolition of fault the pretence that it will make no difference. As we gradually sap and undermine individual responsibility, we do not help young people entering marriage. We do not help marriages which both parties are struggling to make work or where one partner is struggling to make the marriage work in great difficulties. We would simply be encouraging everybody to give up far too easily. I do not think that that is a signal that we should send out at this stage and that is why I stand by the whole question of fault. As I have said, I do not intend to press the amendment, so I beg leave to withdraw it.
Amendment, by leave, withdrawn.
10.15 p.m.
Lord Meston Lord Meston moved Amendment No. 5:
Page 2, line 1, at end insert ("or, in the case of an application for a separation order, the marriage has broken down").
The noble Lord said: I spoke, in part at least, to the amendment at an earlier stage in connection with Amendment No. 2. The purpose of the amendment is to examine why the Bill seeks to assimilate the ground for a divorce order and the ground for a separation order. As I mentioned at an earlier stage, under the existing law it is not necessary to allege or to establish that a marriage has broken down irretrievably if the party concerned seeks only a judicial separation.
The Law Commission suggested that the two forms of relief should now be integrated. That is the one part of the Law Commission report which I find somewhat unconvincing. A separation order is a concept distinct from a divorce order, and it is questionable whether it is necessary or desirable to integrate them as the Bill seeks to do. A large number of people prefer, for personal reasons, to have a separation order. They find it easier, less painful, and sufficient for their requirements. It is therefore unnecessary for them to have to prove now, under the Bill, that the marriage has broken down irretrievably. It should be sufficient to prove that the marriage has broken down. After due
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formality, they should be enabled to regulate their affairs, or to invite the court to regulate their affairs, as the law presently allows. I beg to move.
The Lord Chancellor: I wish to indicate in answer to the noble Lord, Lord Meston, that in this area the Bill is founded, as he recognised, on the Law Commission's proposal. The possibility of having a distinct basis for separation exists in logic. If all he wants to have is that the marriage has broken down, we would need to know more about the conditions under which that would be thought to be established.
One of the reasons for doing what we have done is to make the basis upon which the orders are made as simple, as clear, and as capable of going out to people as a message as is possible. At the moment at least, I feel that what we have in the Bill is the best solution to that problem. The question that the Law Commission considered more fully is whether we need a separation order at all. For reasons that we have gone into already, I believe that it is desirable to have a separate separation order. It is not necessary to specify further what it does than what is said in the Bill.
If the noble Lord considers that some better function would be served by a separation order distinct from the divorce order in its ground, then I should be glad to know what that would be. It would have the consequence that one could not readily transfer from the separation order to the divorce order without in some way doing some more work to bring one into the ground for the divorce order, I assume.
When talking about a separation order earlier, I may have spoken about the possibility of obtaining one in one year after the marriage. If I said that, it was not what I intended. I intended to say that it was possible to apply for an order within one year. It was not subject to the bar, as is an application for a divorce order. Under this Bill, one cannot obtain the order in less than a year because it takes a year to obtain it. I meant to say that the application can be made. If I did not say that I am sorry, and I take this opportunity to correct the point.
The essential point is that we desire to have one. We desire to make it possible to move from a separation order to a divorce order if the circumstances seem to the parties to make that desirable. If we are to distinguish between the two on grounds we need to know the ground that the noble Lord wishes to suggest for the separation order.
Lord Meston: I am grateful for the response of the noble and learned Lord. The ground that I am proposing is that set out in the amendment; namely, in the case of an application for a separation order, that the marriage has broken down as distinct from the need to prove that the marriage has broken down irretrievably.
I must accept that it is a finely balanced argument. As the Bill recognises, it is desirable that there should be a distinct separation order and I am glad that the Law Commission recommended that, having considered the matter carefully. As I have indicated, it is the position under the existing law that a separation order should not he so difficult to obtain. For that reason I question, and have questioned in the amendment, why it now becomes

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necessary to prove the irretrievable breakdown of the marriage. It is not a matter on which I wish to detain the Committee at this late hour but I may wish to return to it at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 6:
Page 2, line 1, at end insert—
("( ) in the case of a divorce order, there is no child of the family under the age of sixteen;").
The noble and learned Lord said: If Members of the Committee wish it, I am prepared to move this amendment, which is linked with five others. Amendment No. 4 took almost two hours to debate. Amendment No. 6 raises a very important question relating to the welfare of the children of a potentially broken marriage. It makes three proposals alternatively which were not before the Royal Commission on marriage and divorce and, so far as I know, have not been discussed in public since then.
It is now twenty minutes past ten and the Committee has been sitting since three o'clock. Your Lordships are an elderly and unsalaried Chamber which now habitually sits longer hours than the other place whose Members are younger and salaried. If the Committee thinks it fit to embark on the important and controversial questions which arise from this amendment I am reluctantly in the Committee's hands. In my respectful submission, it would be utterly improper.
When we debated the report on the sittings of the House we were assured that we would not be kept late at night. At the moment the House is entirely unrepresentative. As regards this amendment, it is most important that the widest spectrum of views is assembled and I respectfully invite the noble Baroness, Lady Trumpington, or perhaps my noble and learned friend, to say that enough is more than enough.
Baroness Trumpington: I certainly appreciate the feelings of the noble and learned Lord, Lord Simon of Glaisdale. However, it is not in my gift to make such arrangements on the Floor of the House. I have sent a little carrier pigeon off to the usual channels and I
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suggest that in the meantime the noble and learned Lord speaks to his amendment. We must carry on in some way until word comes back. I am sorry but the noble and learned Lord must carry on for the moment.
Lord Stoddart of Swindon: I should very much like to follow what the noble and learned Lord said. It is most important that we should listen to what he said. We have been promised that this Chamber would not sit into unearthly hours. Quite frankly, we are now nearing 10.30 at night, and I have to inform Members of the Committee—if they do not already know—that another place rose at 7.30 p.m. this evening.
As the noble and learned Lord, Lord Simon, said, it is a bit much that the other place, which has elected and paid Members, should go home at 7.30 p.m. because they believe that to go on further on a Thursday night is uncivilised, and that we should be expected to stay here after 10.25 p.m. to consider a Bill, bearing in mind that it is a very important and sensitive piece of legislation and also that we have not very much business in this Session and could find an extra day if necessary.
I see that the Government Chief Whip has now arrived in the Chamber. It may well be that it would be better for me to sit down now to see whether we can make progress.
Baroness Trumpington: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

City of London (Approved Premises for Marriage) Bill [H.L.]
Presented, and read a first time.
House adjourned at twenty-seven minutes past ten o'clock.