Lords Sitting of 22 January 1996

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.

The Lord Bishop of London
Richard John Carew, Lord Bishop of London—Was (in the usual manner) introduced between the Lord Bishop of Chichester and the Lord Bishop of Southwark.

Speech Therapists: Equal Value Claim
2.43 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
What are the total legal costs incurred by the respondents (the Secretary of State and Frenchay Health Authority) in defending the speech therapists' equal value claim brought by Dr. P. Enderby, and how long have these proceedings taken.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the costs of the respondents' defence so far have been in the order of £400,000. The legal proceedings have taken almost 10 years.
Baroness Turner of Camden: My Lords, does the Minister agree that it is amazing that so much public money should be spent resisting a claim which the European Court of Justice has decided should be conceded in principle? How much longer will these very committed women—most speech therapists are women—have to wait before they receive justice and equal pay?
Baroness Cumberlege: My Lords, when the speech therapists and MSF (the Manufacturing, Science, Finance Union) set out on that path, they knew that it would be very long and tortuous. From 1988 the Government have not lost a single hearing. I appreciate that it is in all our interests to have this case settled as quickly as possible. But it takes two to tango. I again point out that the Government have not yet lost a single hearing since 1988.
Lord Campbell of Croy: My Lords, does my noble friend agree that speech therapists have been making a vital contribution to the recovery of people disabled by strokes or similar conditions, following the first few, who assiduously helped servicemen with head wounds in World War II, as I witnessed when I spent over a year in the ward of a brain surgeon? I should add that in my case he was operating on my back and not examining my head, as uncharitable friends have suggested.
Baroness Cumberlege: My Lords, I should like to endorse my noble friend's view. Speech therapists do an enormously valuable job, not only among elderly people who have had strokes, but also among children. One only has to consider how very few young people today have stutters or speech impediments. I believe that much of that is due to the work of speech therapists.
Lord Ashley of Stoke: My Lords, I am president of the Royal College of Speech and Language Therapy. Dr. Enderby was chairman of that body last year. Can the Minister tell the House whether the Government are genuinely seeking a solution of the problem or whether they are trying to save money at the expense of speech therapists by prevarication and procrastination? Is she aware that it is not true that the speech therapist assumed that there would be a very long case? Is she further aware—as a fair person I am sure that she is aware—that speech therapists treat their patients very considerately? Is it not time that the Government accorded the same courtesy to the therapists?
Baroness Cumberlege: My Lords, the noble Lord is right in that Dr. Enderby is an exceptional person. She is somebody of international standing. I believe that that has caused some of the problem in using her case as a comparator with other cases. But, as I said, it takes two to tango. In fact, between 1986 and 1991, it was the applicants who asked for judicial review. They lodged two appeals without asking for the proceedings to he expedited. I believe that that has been the cause of some of the delay.
Lord Peston: My Lords, I should declare an interest in that my wife is a speech therapist, but, happily, she has retired, so there is no financial interest involved. Dr. Enderby is very distinguished. I am absolutely staggered that the Government find themselves on the other side. Would it not be rather more reasonable if the Government were on the side of the speech therapists and if this case had not happened in the first place? Is she aware that I find it doubly puzzling because I know exactly the Minister's views on this matter, which, if she could state them—which perhaps she cannot—would be exactly the same as mine; namely, that it is about time that the speech therapists—most of whom are women—received a little justice in this matter?
Baroness Cumberlege: My Lords, the noble Lord is a little presumptuous in believing that he knows exactly what is in my mind. However, I know that Lady Peston is also a very distinguished person in her own right. I should point out that in this case the industrial tribunal found that the machinery that we have been using to determine pay is completely free of any sex discrimination. Secondly, the counsel for MSF is withdrawing 1,000 cases. Surely that is an admission that for these claims there is no case to answer.
Baroness Turner of Camden: My Lords, the Minister said that it takes two to tango. Is she aware that the union would not in the first place have started on that path, eventually leading to the European Court of Justice, which, incidentally, found for the union, had it been possible to negotiate decent terms and conditions for these very valuable people at the outset?
Baroness Cumberlege: My Lords, there was an error of judgment in the first place because the speech and language therapists decided not to opt for the pay review body system of pay determination; they decided to stick with the Whitley system. I believe they would now say that it has not served them well in terms of increases in pay compared with other professional bodies. That group, and the MSF who is representing them, were clearly knowledgeable in regard to the tortuous path they intended to take; indeed, when they started they said that they would take it to the highest court, the European Court.
Baroness Turner of Camden: My Lords, is the noble Baroness aware that the MSF has had the support throughout the proceedings of the Equal Opportunities Commission?
Baroness Cumberlege: My Lords, this is a long and tortuous case. I agree with the noble Lord, Lord Peston, and others that the sooner it is resolved, the better. But it is wrong to think that only speech therapists have a case. From the point of view of the Government, this is an important settlement, not only for the NHS and public pay, but also for the whole economy. It is right that it should be contested.

Special Dividends and Takeovers
2.51 p.m.
Lord Spens Lord Spens asked Her Majesty's Government:
Whether they intend to change the law which currently appears to permit corporate raiders on the London stock market to use the device of "special dividends" payable by the victim company to finance, in part, takeover activities at a considerable cost to United Kingdom taxpayers.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, Her Majesty's Government have no present plans to change the provisions of the Companies Act relating to the payment of special dividends. However, we are reviewing the law on financial assistance by a company for the acquisition of its own shares. If the noble Lord has a suggestion to make in that context, I shall undertake to consider it. Her Majesty's Government are of course attached to the principle of equal treatment for both parties to a takeover bid.
Lord Spens: My Lords, I thank the Minister for that Answer. It indicates an encouraging situation. However, is the Minister aware that the scale of the present proposed takeover by Granada of Forte is £500 million in terms of special dividend? That is way beyond any other type of special dividend paid before. It is distinguished by the fact that it is a hostile situation. In order to pay the dividend, Granada will have to change the board of Forte after it has acquired control. It is that aspect which distinguishes the situation. If that position is taken to the extreme, it will soon be possible
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for one company to take over another without offering any consideration at all. Does not the Minister agree that that cannot be right?
Lord Fraser of Carmyllie: My Lords, I am aware of the broad outline of the bid that Granada made for Forte. However, I am sure the noble Lord will appreciate that it would be inappropriate for me, at this Dispatch Box, to offer any comment on the terms put forward. I can add nothing further to what the President of the Board of Trade said in relation to the desirability of Granada acquiring Forte's motorway service areas. He is awaiting further advice on that aspect of the bid from the Director General of Fair Trading before making his final decision. As the noble Lord is clearly aware from his professional background in the matter, the special dividend device has been used on a number of occasions recently. The specific example he indicates is an extreme one. As I said in my first Answer, we have no present plans to change the provisions, although I am aware of the arguments advanced for such a change.
Lord Clark of Kempston: My Lords, the Question suggests that the special dividend device will cost British taxpayers a great deal of money. However, does my noble and learned friend agree that income tax is paid on special dividends by the recipients?
Lord Fraser of Carmyllie: My Lords, there are some quite difficult considerations affecting those shareholders who are exempt. However, I am advised that the Inland Revenue's present assessment is that the result for the Exchequer by way of special dividend payments will be similar whenever those profits are distributed.
Lord Haskel: My Lords, does the Minister agree that to use shareholders' funds to achieve the removal of a few directors from the board of the target company is also inefficient?
Lord Fraser of Carmyllie: My Lords, the noble Lord is tempting me to offer a judgment on the present takeover bid which is at the centre of financial consideration at the present time. Whether or not the method is inefficient is for those involved in the takeover to determine.
Viscount St. Davids: My Lords, does my noble and learned friend agree that the Question on the Order Paper highlights two separate but not necessarily unrelated problems? The first is the concentration of the ownership of ordinary shares in the hands of tax-free institutions; the second is the taxation of corporate profits which encourages distribution at the expense of retention.
Lord Fraser of Carmyllie: My Lords, I indicated that my advice is that the results for the Exchequer will be similar whenever the profits are distributed. I understood the Question to consist of two parts and indicated that we will be reviewing the law on financial assistance by a company for the acquisition of its own

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shares. If any views are expressed, I undertake to consider them, but it would be inappropriate for me to say anything further.

New Drivers: Accident Risk
2.55 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they are considering the introduction of a probationary period for newly qualified drivers of motor vehicles.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the Road Traffic (New Drivers) Act 1995 provides for a probationary period of two years from the date of first passing a driving test. During that period drivers who accumulate six or more penalty points will have their driving licence revoked and return to learner status until passing a re-test.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that reply, so far as it goes. Can he confirm that a disproportionate number of accidents involve drivers under the age of 20? As newly qualified drivers in Northern Ireland have to display a plate bearing the letter "R" for one year, why cannot something similar be adopted in other parts of the United Kingdom? Is there not more danger to other road users from a newly qualified driver on his own, with no cautionary plate, than from a learner with L-plates who must be accompanied by a qualified passenger?
Viscount Goschen: My Lords, my noble friend is correct that there is a disproportionate rate of accidents among young and inexperienced drivers. It is a serious problem. However, there is a lack of clear evidence that the use of probationary plates significantly reduces the number of accidents. In addition, where such schemes exist it is difficult to separate the actual effect of the plate itself from other restrictions that may be associated with it.
Lord Skelmersdale: My Lords, is it my noble friend's intention to recommend to the authorities in Northern Ireland that they should do away with the probationary plates?
Viscount Goschen: No, my Lords. The system in Northern Ireland has the acceptance of the public and people are used to it. However, there is no clear evidence—it is difficult to compare like with like—that the probationary plate system has a significant effect and that we should adopt it.
Lord Clinton-Davis: My Lords, can the Minister inform the House as to when the provisions of the Act, which we fully supported—I am not sure that "we" is strictly correct as it was a Private Member's Bill which I supported in a personal capacity—will come into operation? Will there need to be consultation with the courts concerning the application of the Act? If so,
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in the interim period, will the Minister agree to look further at the proposal made by the noble Lord, Lord Campbell of Croy, as to the efficacy of the probationary driver's plate, which may have some relevance to the requirements in this country?
Viscount Goschen: My Lords, those are two slightly different issues. We hope to bring in the provisions of the new drivers Act by commencement order later this year. That will be the machinery that brings it into play. We maintain an open mind on the issue of probationary plates. We looked at schemes used elsewhere, including the scheme in Northern Ireland. At the moment there is a lack of clear evidence that it has a significant effect. If more evidence comes forward, we may reconsider the matter.
Lord Campbell of Alloway: My Lords, is there any evidence that newly qualified and perhaps rather timorous drivers cause more accidents than more experienced ones?
Viscount Goschen: My Lords, yes. There is a considerable body of evidence on that point. Inexperienced drivers of any age are more likely to have accidents than experienced drivers of the same age. I understand that, taking all age groups together, accident risk reduces by some 30 per cent. once the first year of driving after passing the test has elapsed. That analysis was done by the Transport Research Laboratory.
The Viscount of Falkland: My Lords, following the question of the noble Lord, Lord Campbell of Alloway, do not overall statistics show that British drivers are relatively good? To target novice drivers as a group is probably not right. We should he targeting the loutish and inconsiderate across the whole age range who may not be novice drivers.
Viscount Goschen: My Lords, we must address those people as well. The courts have shown that where people drive badly they receive heavy penalties. It is right that we should concentrate on that aspect. But there is a problem with young and inexperienced drivers. We feel that the provisions of the Road Traffic (New Drivers) Act, coupled with better road safety information and schemes designed, for instance, to address the problem of speeding, are the right approach.
Lord Carmichael of Kelvingrove: My Lords, is the Minister aware that the department has been studying these statistics for at least 25 years and has resisted almost every effective argument? Is he further aware that the parents of many new drivers have reached the point of impatience and now require those drivers to display green L-plates? I do not know whether those have any official standing but they are an indication to other drivers that someone has recently passed his driving test and therefore needs to be given extra consideration.
Viscount Goschen: My Lords, they arc available if people want to use them, but it is purely voluntary. We have to look at what has been the real effect of such schemes. In Northern Ireland, for instance, the scheme

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has been operating for 26 years and it has been well accepted. But in Northern Ireland slightly more drivers in their first year have accidents than is the case in Great Britain. The evidence is not there that major road safety gains would be achieved by bringing the scheme into Great Britain.
Baroness Farrington of Ribbleton: My Lords, in considering the evidence, will the noble Viscount give an assurance that he will consider the statistics by gender and look at the record of young women drivers as opposed to that of men? Can he confirm—here I must declare an interest as a mother of sons, although none of my sons is now in the appropriate age group— that women drivers of all ages have a better safety record?
Viscount Goschen: My Lords, I declare an interest as a man, so perhaps we might not necessarily have exactly the same perspective. If any scheme were introduced it would be equitable to introduce it for both genders.
Baroness Gardner of Parkes: My Lords, is it not a fact that the green voluntary L-plates are used only by the timorous or careful driver and certainly not by the real tearaways who are the very ones we would want to identify as probationary drivers within their first two years of driving?
Viscount Goschen: My Lords, that may well be the case.
Lord Campbell of Croy: My Lords, is my noble friend aware that British drivers as a whole have a better safety record than other nationalities? With reference to the point raised by my noble friend and namesake Lord Campbell of Alloway, is he further aware that a large proportion of all accidents—around 30 per cent.—involve drivers who have been qualified to drive for only a short time and that most other comparable countries have special arrangements or restrictions, going further than those set out in his first reply today, after a person has passed the driving test?
Viscount Goschen: Yes, my Lords, many countries have such schemes. But, as I said, it is not altogether clear that the schemes per se have the required effect. We have to look at the actual restrictions in individual cases. Some countries have associated lower speed limits, some a total ban on alcohol consumption, and so on. There are a number of different measures. I believe that in general we have a good road safety record in this country. However, there is room for improvement. That is why we have brought forward schemes to increase driver training after a driver has taken the driving test. As part of the "pass plus" system there are associated insurance benefits.
Lord McIntosh of Haringey: My Lords, the Minister has given answers about the effectiveness or otherwise of schemes which would indicate whether a driver is a new driver. Would he give a comparable answer to the question of whether a speed restriction for new drivers, such as that imposed in France, has any beneficial effect?
Viscount Goschen: My Lords, I have sought to indicate that associated with the issue of probationary plates are often a wide range of other measures such as lower speed limits, a complete ban on alcohol, and so on. With many of the schemes there are consequent disadvantages as well. We would have to consider that. For instance, by its very nature imposing a lower speed limit can cause problems with other traffic.

Business: Starred Question
3.4 p.m.
Baroness Gardner of Parkes: My Lords, under Standing Order 40(2), I beg leave to ask the Question standing in the name of the noble Lord, Lord Monkswell.
The Question was as follows:
To ask Her Majesty's Government whether they consider that the right of schools to choose their pupils is more important than the right of parents to choose their children's schools.
Baroness Gardner of Parkes: My Lords, I understand that the noble Lord, Lord Monkswell, notified the House that he would not be available and perhaps just overlooked arranging for some colleague to ask the Question for him. It is an important and topical Question and I know that the House would wish to discuss it. Under Standing Order 40(2), with the unanimous leave of the House we are entitled to consider this Question. I hope that on such an important issue the House will grant me leave to ask the Question.
Lord Jenkins of Putney: My Lords, leave is not unanimous.

Deer (Amendment) (Scotland) Bill [H.L.]
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the order of commitment of 4th December last be discharged and the Bill be committed to a Scottish Select Committee.—(The Earl of Lindsay.)
On Question, Motion agreed to.

Family Law Bill [H.L.]
3.6 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.

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[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 2 [Circumstances in which orders are made]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved 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: This Bill in effect reconstitutes marriage as an arrangement for the parties to live together until one of them, without cause to be assigned or shown, gives unilateral notice of one year's duration that the arrangement shall come to an end. Most of the amendments so far have concerned that aspect of marriage and, if I may say so with respect from the Cross-Benches, your Lordships heard a most moving and cogent speech from the noble Baroness, Lady Young, on that aspect. The amendments have also concentrated on the inherent likelihood that a divorce by unilateral repudiation without cause will promote injustice, especially to married women. Throughout those debates, though, there has been a sub-text—the welfare of the children—and this amendment now brings it to the fore.
When we considered the Child Support Act for the first time it was launched by a White Paper entitled Children come First. In this Bill they come last. Their welfare is postponed to the wish of their parents to be rid of each other; indeed, to the wish of one parent only to be rid of his family commitments undertaken at the time of marriage.
Amendment No. 6 proposes to take the children right out of the danger area and that there shall be no divorce where there are children of the family under the age of 16. That is grouped with an amendment in the name of the noble Baroness. Lady Elles, which proposes the age of 18 and raises the question of the age up to which the law should concern itself with the welfare of children. In a letter to my noble and learned friend the Lord Chancellor adverting him to the fact that I was going to ask about the various ages, I believe that he took it that I wanted a reply before the debate and let me have one. I am extremely grateful to him. I believe that it would be advantageous if he were to repeat to the Committee what he wrote to me.
Amendment No. 6, removing children right out of the ambit of danger and the potentiality of harm to them, which is now shown very clearly both in the anecdotal evidence and in the official statistics, is, I concede, a radical proposal. But then a desperate situation requires a radical measure. This was not considered by the Royal Commission on Marriage and Divorce nor by the Law Commission in its paper, Divorce: the Field of Choice, although it chose a rather narrow field. These matters were not then considered and certainly no one at that time envisaged that we should be faced with the sort of divorce reform to which I referred; namely, the unilateral repudiation of the other spouse after the lapse of one year, nor did anybody at that time envisage that there would be upwards of 200,000 children under the age of 16 years in any one year whose background had been disrupted by the divorce of their parents. So I concede that it is a radical proposal, but one that is called for in the circumstances.
Amendments Nos. 7 and 8 do not go so far. They merely indicate that the welfare of the children should he considered at the stage of divorce and not merely at the stage of mopping up the consequences of divorce. As I said, Amendment No. 12 in the name of the noble Baroness, Lady Elles, is parallel to Amendment No. 6, but pitches the age at 18. There is another amendment today, which has been grouped with Amendments Nos. 6, 7 and 8, and that is Amendment No. 35A. I shall not speak to that because it seems to me that it can be much more conveniently discussed with the important series of amendments starting with Amendment No. 35 tabled by the noble Baronesses, Lady Faithfull and Lady David.
It was vaguely questioned at the last Committee meeting whether marriage could be properly described as a contract. It was rightly said that marriage is much more than a contract. But saying that it is much more than a contract does not mean that it is anything less than a contract. The noble Earl, Lord Onslow, quoted on that occasion from the Book of Common Prayer 1662, which proclaims as the first, and primary, object of marriage the procreation of children and their nurture. The 1928 version is differently phrased, but to the same effect. I imagine that sociologists would readily agree that a primary purpose of marriage in society is the procreation of children and their nurture to become responsible citizens on their own. The noble Lord, Lord McGregor of Durris, has put his name to these amendments. I am very glad because he is the leading figure in this field of sociology and the Committee will be wanting to hear his views now that he has come back to this country. I hope that he is present. I am afraid that I cannot see that far.
Noble Lords: The noble Lord is here.
Lord Simon of Glaisdale: The continuation of society being the purpose of marriage, one asks this question. The contract of marriage being a special one and one to be construed fairly, whatever an individual's faith, in the terms of the citation of the noble Earl, Lord Onslow, it is a type of contract and arrangement which obviously envisages from the outset the introduction of a third party; namely, a child. As soon as a child is born, the family alters its character. When we talk of the irretrievable breakdown of marriage, I believe that we have always tended to look to the spouses only, but if we look to the wider family, including the child, is it possible to say that the marriage has broken down irretrievably as long as the parents can fulfil their duties towards the child and their responsibility to the being they have brought into the world?
On the last occasion one noble Lord spoke of the parties being locked in a loveless marriage, again only looking at the spouses, but when there is a child can it really be described as a loveless marriage? I believe that practically every family shows love for the child and the child reciprocates. It is very rare that a family with children can properly be described as loveless.
The damage to children can arise in three different ways which are very difficult to separate statistically. First, there is the acrimony between the parents which

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leads to the divorce. Some weight has been put on that. The noble Earl, Lord Russell, honoured us by giving us his personal experience—that the separation and divorce were a relief from the tension of the preceding acrimony. However, responsible parents will guard their children from the tensions of their own differences, if they exist. As the possibility of remarriage approaches, the acrimony is apt to increase. On the other hand, the acrimony is decreased if the parties have considered beforehand that the children come first and have given thought in advance to their responsibilities to them. The parents may perhaps decide to make the best of what seems to be a bad mistake. They may make that choice in the interests of their children.
We have had the anecdotal evidence to which I have referred and which cannot possibly be isolated, but there is anecdotal evidence on the other side. I remember a colleague of mine saying to me, "My brothers, sisters and I suffered greatly because our parents were on very had terms with each other, but we knew that, where our own interests were concerned, they would come together immovably". Certainly, he grew up into a very well adjusted man.
In any case, however, anecdotal evidence must always be measured against the statistical evidence, which is overwhelmingly that the children of broken homes suffer grievously. My noble and learned friend the Lord Chancellor summed up the assessment of such research in the following terms:
"Research work has shown that there is a significant excess in the signs of emotional disruption among children of broken families, not just in the short term but, apparently, on into adolescence and even adulthood. The research points to increased delinquency, increased ill health and a greater likelihood of divorce in spouses who themselves were the children of broken homes".—[Official Report, 31/1/91; col. 800]
That summary of research has been brought up to date. In particular there has been some important research by Exeter University which tends to show that it is not the preceding tension that does the real damage, but the separation and the divorce. No doubt included in that—I think that they are difficult to measure—are the strains that I have suggested which inevitably arise on remarriage after divorce, as was vividly illustrated when we considered the Child Support Act.
The Bill's provisions on mediation are welcome. They could well mitigate the harm that is done to many children. Mediation was at the very centre of our proposals for a family court, on which, unfortunately, we were rebuffed by the Government. However, surely it is better not to engage in damage limitation—valuable though it is—but in obviating the cause of the damage.
I do not propose to take any of the amendments to a Division because this is a subject that has not been sufficiently discussed and is one on which I should welcome the views of your Lordships, as I am sure would everybody. The question that we are now facing is whether we believe that children should come first and whether we believe that their welfare should be considered before there is a divorce. This gives us the opportunity to show forth our commitment not only with our lips but in our legislative lives. I beg to move.
Baroness Trumpington: Did the noble and learned Lord include Amendment No. 146 in the list of amendments which, as I understand it, were grouped together?
Lord Simon of Glaisdale: I am very much obliged to the noble Baroness. I did not speak to Amendment No. 146 advisedly because it is really only a drafting amendment. It need not be considered separately. The important amendments are those numbered 6, 7, 8 and 10, to which I have referred.
Lord McGregor of Durris: I support the noble and learned Lord's amendments in the hope that they may stimulate the Government and the Committee to reconsider this aspect of the Bill. I wish to add to what the noble and learned Lord said only that it is notorious that very large numbers of immature children have experienced their parents' divorce—almost 3 million between 1971 and 1990, and some 153,000 in 1990 alone. The current trend in divorce suggests that one in four of all children will share that experience in future.
The Children Act 1989 requires the child's welfare to be treated as the paramount consideration in family matters. I find it odd that we retain statutory powers to regulate the circumstances in which childless adult spouses may obtain a licence to marry again, but impose no special requirements in respect of immature children under the age of 16 in relation to remarriages. The case for providing that the court should have discretion to withhold a decree unless it is specified that the divorce is in the interests of the children is irresistible. Only the court is in a position to make an assessment of what the interests of the children in the future are likely to be in such circumstances.
On the first day in Committee, a good deal was said about the messages that this place should he sending to the general public by means of the Bill. Might not we send the message that in a period when most parents control their own fertility, the birth of their children should be regarded as being intended, and therefore carries a peremptory obligation to care for them until their maturity? That obligation should not be lifted in divorce unless the court believes that the interests of the children will be best served by the divorce. I support the amendments tabled by the noble and learned Lord, because they point in that direction.
3.30 p.m.
Baroness Elles: I support the amendments tabled by the noble and learned Lord, Lord Simon of Glaisdale, supported by the noble Lord, Lord McGregor of Durris. I have tabled an amendment but I do not intend to put it to a Division today. I agree that it is a matter that needs to be debated in this place, especially in view of the diverse statements made during Second Reading. Many noble Lords thought that the Bill would be in the interests of the children; that if they are living in a family of conflict, divorce should be quicker and children should not have to live in a home where there is conflict. There are many views on that topic which I hope will be put forward today.

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Having been married for 50 years, and having children and grandchildren, I, too, of course have many anecdotal stories that I could tell about relationships of children and grandchildren whom I have known through the years, and also from doing voluntary social work. I therefore declare that whatever might be my private views on family and moral values, they are not my primary objectives during today's debate. My primary objective is to contribute towards ensuring that the happiness of children and their future prospects are not marred by some of the elements which appear in the Bill, where no protection has been given to the children of marriages which are about to break down.
The size of the problem is well known to the Committee. The noble and learned Lord has already touched on that point. Apparently every day 630 children are affected by divorce proceedings. There were 176,000 in 1993. There are well over 2.5 million children on income benefit, as revealed in an Answer to a Question tabled recently by the noble Earl, Lord Russell. Although not all of them, of course, are living in one-parent families, the vast majority will be.
The social effects are also well known to the Committee. They have been discussed many times in this place. Crime, vandalism, drugs and child sex abuse are frequently shown to be connected with broken homes. The reason I tabled my amendment to raise the age to 18—the noble and learned Lord proposes the age of 16—is to deal with the question of the young homeless. So many of the young homeless are between the ages of 16 and 17. When we have asked, "Why don't you go back home?", how many times have we heard them say, "I have no home to go back to. My mother does not want me, because her boyfriend does not want me in the house"? Money is not the answer to the problem. More than money is needed to deal with that problem.
The results of a national survey of young people between the ages of 14 and 25, which have recently been released by the Home Office, show that one of the most important keys to whether they started to offend and carried on offending was their relationship with their parents. The report stated:
"Those young people living with both natural parents were less likely to offend than those living with one parent or in a step family".
I cannot quote the paper because it is not yet available in the Printed Paper Office. The survey was published in various newspapers on Friday. But that would seem to be obvious common sense, based on the practical experience of so many Members of the Committee who are involved with voluntary organisations. Unfortunately again there is no reflection of that in the Bill.
A glance at some statistics supports those observations: four-fifths of children in care come from broken homes, and only one quarter of persistent young offenders live in two-parent families. Those two-parent families include of course step-parents and mothers living with a boyfriend and so forth. They arc not two-parent families with the natural biological parents. In tribute to so many one-parent families who bring up their children and manage in some extraordinary way to overcome the problems, I must say that what we are
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saying today is not meant to cause offence to those who make tremendous efforts and produce wonderful young people. That does them much credit.
It is surprising that in the White Paper entitled Looking to the Future there was little to show that there was any new approach towards safeguarding children's interests. They have been almost ignored. Yet there is overwhelming evidence from the various studies and research that children living in families of high conflict arc still better off than those who have been forced to live in one-parent families.
Research has been done by the National Child Development Study, the Centre for Family Research at Cambridge University, Supporting Families by David Utting and a whole host of others. I hope that, if I quote some research studies, my noble and learned friend the Lord Chancellor will not make quite the derogatory remark he made to me the other day when I referred to the no-fault research being carried out in the USA. He implied that there was not enough evidence from which to draw conclusions. Perhaps I may support what I said the other day by informing the Committee that Connecticut, which has had no-fault divorce for 20 years, is now reintroducing fault because it has seen what has happened to the number of divorces resulting from no-fault divorce.
In the White Paper Looking to the Future there was reference to the research done by Exeter University, supported by the Joseph Rowntree Foundation. Paragraph 5.16 states:
"It is confirmed that marital conflict is harmful to children. These findings are significant".
Of course they are significant. They are also common sense. What is even more significant is that there is no reference to all the other findings in the report which show conclusively that it is infinitely more harmful to children to be brought up separately and to go through not merely the trauma of the divorce but the post-divorce period where they suffer all the other problems, to some of which the noble and learned Lord, Lord Simon of Glaisdale, referred.
I regret that the White Paper did not tackle more honestly some of the problems caused to children who are no longer living at home—even a home in conflict. As the report states:
"The outcomes for children in high conflict families more closely resemble those for children in intact families"—
that is, families with both biological parents—
"than those in reordered families. The assumption is that parental conflict will cease following divorce, but that is not true. In some families divorce instigates conflict which will continue into the post-divorce period".
I am sure that many of us are aware of such situations.
Detailed examples are given in the report, which is strongly recommended reading. Those examples show low self-esteem, deep unhappiness, health problems, especially psychosomatic problems, low educational attainment, school changes, home changes and fewer possibilities for employment and career prospects and future family relationships. It continues:
"Poverty obviously played a role in the situation where the mother retained the children, resulting frequently in economic and social change, and of course going further towards poverty".

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In many cases where the mother introduces a boyfriend, or partner, or eventually a stepfather, the young people no longer feel that they have a home to go to. One of the most important adverse factors, as was emphasised in the report, is the loss of a parent and its consequences. Even if the parent who left the home clearly might have appeared to be the guilty party or was violent, the children of the marriage always resented and regretted the departure of that parent. As was reported by Dr. Richards of the Cambridge Centre for Family Research, when children were asked what they would like:
"They would almost always say they only want one thing; that their parents should stay together".
If this Bill is to support the institution of marriage it should be making provision for safeguarding the interests of children within marriage—the victims of their parents' conduct—but there is no evidence of that so far in the Bill. If it is true that among the objectives of my noble and learned friend the Lord Chancellor is to cut down or restrain rises in the cost of legal aid for divorces, he can do no better than to recognise that the retention of family structure would produce considerable benefits to the Exchequer. The cost in welfare alone as a result of divorces approaches £3.2 billion a year. Even at that low level of argument on costs, surely it would be of infinite benefit to the country if such expenditure were not going to help divorced parents in their separate lives.
There is nothing on the face of the Bill which enforces, or seeks to enforce, legal obligations as between husband and wife in relation to their children. I do not mean moral obligations but the obligation to provide together a common and stable home background. I wonder whether the noble and learned Lord the Lord Chancellor can give any comfort as regards what he intends to do about helplines and reconciliation before the stage of statement is reached, because there is no evidence on the face of the Bill. Regrettably, the Bill appears to many of us not as a family Bill but as a further step to increase poverty, poor education, homelessness and, through a lack of stable parental relationships, the number of children in care and young offenders
Earl Russell: It will give the noble and learned Lord, Lord Simon of Glaisdale, no surprise to hear that I cannot support this group of amendments. I gave my reasons for that in the debate on Amendment No. 4, moved by the noble Baroness, Lady Young, on 11th January. The Committee as a whole may he relieved to hear that I am not going to repeat them. I shall confine myself to remarks that have been made today.
The noble and learned Lord took up some of the remarks that I made on 11th January and argued, if I understood him correctly—I will check the Official Report again—that none of the points would have been necessary if people were responsible. But the noble and learned Lord's argument did too much. If people were responsible the vast majority of the legal system would be unnecessary. I am afraid we know all too well that it is not.
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It seems to me that the opponents of the Bill are on a fork and they must tell us on which prong of it they wish to rest if the argument is to be developed further. We need to know whether they want to prevent divorce or separation. If they want to prevent divorce they must explain why it is better if the couple are living apart but cannot regularise the position by divorce than if the law recognises the situation as it is. If they want to prevent separation they must undertake the challenge of explaining how they are going to make the couple live happily ever after. That, of course, is a very stiff challenge indeed.
That is relevant to the point that the noble and learned Lord made about statistics. The problem with all divorce statistics is the difficulty of getting a control group. I do not believe that anyone disputes that it is better for children to have two happily married parents than it is to have any of the reasonable and likely alternatives. If there is any child for whom that is not so I suspect that that child is a masochist and therefore not likely to give grounds for general legal rules. What we really want to know is the comparative effects on children of having divorced parents, parents who are separated but not divorced, or parents who live together but are unhappy.
The noble Baroness, Lady Elles, mentioned the existence of research hearing on that topic. I have heard of the existence of such research but I have not yet had the opportunity to see it or managed to track down its place. If the noble Baroness could give me a reference I should be happy to read it before we come to the next stage of the Bill. When I look at that research I shall want to check the definition of the sample. It seems to me that if one looks at couples whose relationship has placed a strain on the children a good many are couples who would never admit to being in any way unhappily married. In fact, some of them believe that they arc blissfully happily married. They just happen to have a competitive relationship and the competition happens through the children. On occasion they may enjoy that very much but children do not always enjoy it nearly as much. In that way it is very hard indeed to obtain a control group for any proper scientific academic study. I will study that question with care when I look at the research to which the noble Baroness referred.
I am extremely glad that the noble Baroness raised the issue of child poverty. The statistics that she quoted about the proportion of children on income support are worrying. It is about one-quarter of all children in the British Isles. But that is made up of four groups; the divorced, the separated, the widows and the never-married single parents. Those groups get to that position by many different routes but they all have a common problem. It might be better to think of tackling the problem directly by a solution that deals with all of those groups rather than by trying to block the entry of one group to the sample, leaving all the others unhelped.
I hasten to reassure the noble and learned Lord the Lord Chancellor that I am not about to make a social security speech. His noble clansman of Ardbrecknish knows my views on that subject perhaps rather better than he would like. I will mention only the words, "childcare disregard, nursery education, flexible

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working hours and the problem of childcare in general", including the opportunity for men, if they wish, to take part in it on equal terms. Those are the areas in which solutions should be sought and that is the way in which I should tackle that problem. I will not develop that point now because I have done it often enough.
3.45 p.m.
The Lord Bishop of Liverpool: I too wish to give great weight to the interests of children. I would not support Amendments Nos. 6 or 7. Amendment No. 8 may be helpful but I wish to hear the explanation of the noble Baroness, Lady Faithfull, as regards her amendments relating to children.
In no way do I wish to argue against the damage that is done to children by divorce but one cannot by law protect children from the place of acrimony. The researchers produce their evidence and they do not always agree. I come down on the side that the greater damage is done when parents have divorced. However. without question a great deal of damage is done when children live within a home that is full of bickering and bitterness. We cannot say simply that that is not the case. Alas, parents do not always protect their children from acrimony. Parents cannot fool their children too much of the time.
At several points in the Bill we must recognise the limits of what law can do in changing peoples' behaviour. Many members of the Committee will have heard the interview given at the weekend by Cardinal Hume. It followed an article that he wrote in The Tablet magazine. I pick up the matter at the moment at which he was talking about the rise in cohabitation. He says:
"I do not ignore the rise in cohabitation which is a widespread social trend but the answer is to make marriage more attractive by doing all we can to ensure more marriages flourish".
That is the part that I hope we shall help to strengthen within the Bill—the support for good counselling and good preparation for marriage.
Were we to accept the amendment, which would make divorce impossible for parents with children under the age of 16, what would be the effects? Just as Cardinal Hume was saying about the judgment that must be reached as regards the length of time over which divorce may be agreed, we must make some sort of judgment as to how much notice people will take of it. Not everybody will wait to be married. The noble Baroness, Lady Elles, spoke of the mother living with her boyfriend. It is very likely that that is not a case of a woman who has gone through the divorce courts. Is it not the lesser of evils that when there has been that breakdown, the couples should work through divorce with insistence upon a proper concern for the children?
The cardinal has been widely quoted as expressing concern about the length of time and the view that perhaps 18 months is a better time than 12 months. It should be clear to the Committee that in the article he continues to support the Bill but hopes that it may be strengthened in some respects. He says—and it is very clear—that a prudential judgment must be reached as to what is the best length of time over which the decision as regards divorce should be made. There cannot be a clear theological message.
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I was very sorry that I was not able to be here for Second Reading. I read what the noble and learned Lord the Lord Chancellor said about those working with children who were consulted on the matter. Members of the Committee will be aware of the support for the Bill of many agencies supporting marriage and children and their welfare. The noble and learned Lord said that those who work with children point out—it is a thought I would commend to the Committee—that although 12 months may not seem long to us, it is a very long time indeed for a young child living with uncertainty. A lengthy period would prolong the agony not only for the adults but for the children. Children are not always fooled. When they know that a relationship has lost the love and trust between people, damage will be done as assuredly as it is done through divorce. Given the effect that the law can have on behaviour, I doubt whether we should be wise to go further than insist that the interests of children are firmly taken into account.
Lord Moran: On Second Reading I suggested that in all ordinary circumstances it should be unthinkable that parents with children under the age of 16 should be divorced and put their own gratification before the welfare of their children. Therefore, I have great sympathy with the arguments of my noble and learned friend Lord Simon of Glaisdale and the noble Baroness, Lady Elles.
All the evidence we have seen shows the misery and the lasting ill effects on children whose parents divorce. There are also serious social consequences. I believe that today the requiem mass is to take place for the headmaster who was so tragically killed by a gang of youths. Gangs of that sort, which are an increasing menace on our streets, are all too often made up of children of broken homes.
It is too drastic to prohibit divorce altogether for parents with dependent children. There must be an escape hatch for extreme cases; for example, a woman who finds herself married to a husband who is a drunken bully or something of that sort. But surely we should do all we can to discourage the divorce of parents with young children who simply want to make a change and go off with someone else. Therefore, I suggest that the Government might take account of what has been said and see whether a way cannot be found to make divorce much more difficult for couples with children under 16 than for childless couples, perhaps by giving the courts more discretion, as suggested by the noble Lord, Lord McGregor of Durris.
Lord Irvine of Lairg: I start from the basic position that it can make no sense at all to compel parties to remain married if the marriage is dead. The law cannot compel people to remain together. The disgruntled partner will simply leave, start a new relationship and have more children who are innocent and who are 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 live together—and I do not believe that that is possible—I rather think that compelling them to live together against their will would cause greater harm

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to the children since the children would be brought up in a loveless home and be denied the advantage of even one happy parent.
Therefore, I start from the basic position that you cannot compel people to live together. The law can deny divorce but it cannot make people live together. Once that is recognised, what is the point of denying divorce? I repeat, as I have said on previous occasions, that overall the Bill, in the balance of its provisions, is right as regards those difficult choices.
I suggest that the amendments rest on the fundamental fallacy that the law, by denying divorce, can prevent broken homes. I can and do believe that children should come first at the same time as I oppose the amendments.
I find it difficult to see how divorce could ever be described as positively in the interests of children. Of course not. What would be in their interests is marriages not breaking down, but they do. To deny divorce does not prevent breakdown. Therefore, I see no point in denying divorce and denying the regularisation of new relationships after marriages have broken down irretrievably. I recognise that the amendments are well meaning but I believe that they are not well judged and, therefore, we oppose them.
Baroness Seear: Surely if we deny people the right to divorce, they will merely separate and live somewhere else. In that case, they will have none of the benefits—and they are real benefits—of the mediation and conciliation built into the Bill. Despite the good intentions behind the amendments, we shall be creating a worse rather than a better condition for the children. Separation which is unrecognised and unaided in any way must surely be a worse solution than a properly conducted divorce.
Baroness Faithfull: I agree absolutely with the noble and learned Lord, Lord Simon of Glaisdale, and his supporters that divorce is a disaster under any circumstances for any child. Having said that, I must say, not from statistics but from dealing personally with children whose parents are divorced, that to force a child to stay with parents who are warring with one another provides a very bad role model for that child in his daily life. I can only say that teachers find a difference in schoolchildren who come from homes where the parents are at odds with one another. Therefore, I cannot accept the recommendation made by the noble and learned Lord, Lord Simon of Glaisdale. While divorce is disastrous, I believe that to have the role model of warring parents at home affects the children to a serious degree. I do not support the amendment.
4 p.m.
Baroness David: I have a great interest in both the welfare and the interests of the children, as I hope is obvious from the amendments which the noble Baroness, Lady Faithfull, and I have tabled. I prefer the approach that we have taken to the one taken by the noble and learned Lord, Lord Simon of Glaisdale. Therefore, I hope that the Committee will consider sympathetically the amendments that we have tabled
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and will appreciate that they are a better way of tackling the matter than the way suggested by the noble and learned Lord.
I support the noble Baroness, Lady Elles, who said that there was nothing about children in the Bill. That is something about which I spoke on Second Reading, as, indeed, did the noble Baroness, Lady Faith full. Therefore, I hope that we can write something into the Bill which deals with children.
Lord Milverton: I cannot support the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale. As some Members of the Committee have already said, I do not see how it would really help. I can think of only two ways to describe what it would do: it would aggravate and rub up the wrong way parents who, for whatever reason, were finding it impossible to live peacefully together and give decent love to their children. In so doing, it would also rub up the children the wrong way.
As my noble friend Lady Faithfull said, the situation also affects the children. I speak with knowledge of what my wife, who has experience of teaching children from homes which are not as one would wish, tells me. People may think that if the children have one loving parent when the marriage has broken up, that is far better. I do not believe that all stepparents are hopeless. Many love and care for their stepchildren as much as, or indeed perhaps more than, one of the previous parents did.
It is going too far to say that one cannot allow a man and a woman to divorce if the child is under 16 years of age. As has already been said, it is asking for trouble. Surely the couple will just separate and then the children will receive far less help and benefit. I agree with the noble Earl, Lord Russell, and the right reverend Prelate the Bishop of Liverpool. The Bill could be the basis not for destroying marriage but for helping it.
I put down my name to speak on Second Reading but, as I was right at the end of the speakers' list, I decided that enough had been said. However, what I am saying now is roughly what I would have said then. We are not helping the situation if we make this stipulation.
Lord Mishcon: I believe that noble Lords will agree that the principle behind the amendment is an honourable one. However, the practice, if I may refer the Committee to it, would be disastrous. I ask Members of the Committee to imagine for a moment sitting inside the judge's room if such an amendment were carried. He would have in front of him a child under the age of 16, and possibly more than one. What question could he possibly direct to the child or children if the amendment were accepted other than, "Do you want mummy and daddy to be divorced, or don't you?" What answer is the child expected to give other than, "No, sir, I prefer that they didn't"? I see that the noble and learned Lord wishes to intervene. I give way.
Lord Simon of Glaisdale: I am much obliged. I should point out to the noble Lord that there is an amendment which says that the statement "must also state" the ages and "relevant circumstances" of the

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children. Therefore, if there is a child under the age of 16, the divorce proceedings will not start and there is no question of the child being in the judge's room.
Lord Mishcon: If that he so, I confess to the Committee that I have wrongly read the amendment. I thought that it would mean that no divorce order could be obtained where the court was not satisfied that it was in the interests of the children. Therefore, if an argument were to take place where the petitioner says that it is in the interests of the children, it is a matter that the judge would have to hear. I do not understand how in other circumstances the amendment would have any practical value.
Lord Simon of Glaisdale: I thank the noble Lord for giving way. His judgment in such matters carries great weight, but I believe that he has concentrated on Amendments Nos. 7 and 8, whereas I moved Amendment No. 6.
Lord Mishcon: The Committee will he saved from a speech of mine on Amendments Nos. 7 and 8. However, I regard the matters as being so correlated that possibly I shall not be deemed to be irrelevant if I continue shortly with my remarks.
If the matter is to be brought judicially to the attention of a judge in order that he may decide whether it is in the interests of the child or children that a divorce order he made, the possible interview that I have brought to the attention of the Committee would be one that would take place and is one that would be absolutely fatal in its results. I repeat: the question would have to be put, "Do you want your parents to be divorced?" The answer would probably be, "No, sir". The judge would then ask, "Why don't you want your parents to he divorced?", and the child would say, "Because I want them to stay together". How could a judge then say that it is in the interests of the children that a divorce should take place? Worse still, if the answer is the one that the child is expected to give, what respect in after life would that child have for the judge who decided that presumably it was in the interests of the children that the divorce should go forward?
Baroness Young: I believe that the whole Committee should be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for tabling the amendments and for drawing our attention to the important fact that the Bill leaves out the whole issue of the effects on children. We should also be most grateful to my noble friend Lady Elles who indicated that much of the Bill seems to be based on a completely false premise—namely, that what is bad for children is conflict—when all the recent evidence and research show that what is really bad for children is divorce.
Several Members of the Committee have quoted from various documents. I received a most interesting letter this morning from which I should like to quote one paragraph. The writer says:
"I have recently retired as a Comprehensive School Headmaster and I am a family man. I have seen so much distress and disturbance amongst children of divorced parents—I need no convincing that the distress in families which have held together in spite of major problems and conflict is not to be compared with the short and
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long-term effects of divorce. Furthermore it is very evident that divorce in one generation is perpetuated in the next and the more so as it is made easier".
I believe that that simply confirms what has already been said. In our consideration of the following amendments about children, it is most important that we should remember those facts.
I know that my noble friend Lady Faithfull and the noble Baroness, Lady David, have tabled a number of amendments. I can tell both of them that I support them in principle. I believe that those amendments would he helpful. I hope that my noble and learned friend the Lord Chancellor will also look favourably upon them. It is most important that he should do so.
My anxiety about this Bill is that it will make divorce easier, and the easier we make divorce the greater the army of unhappy and miserable children we shall have. I see that the noble Earl, Lord Russell, is not in the Chamber at the moment. He wondered about the evidence. He should read the Exeter study to which reference is made, rather passingly, in the White Paper where it is indicated that it is considered to be valuable. I quoted at Second Reading from the important study Families without Fatherhood. That document should be compulsory reading for everyone. It indicates that the statistics and the evidence are absolutely clear that children from broken homes where there has been a divorce do less well at school, suffer from more ill health, are more likely to be unemployed and take to crime, and are more likely to repeat the pattern of instability.
Of course we must do what we can in this Bill to try to mitigate the trouble, as the noble and learned Lord, Lord Simon, said earlier, but the idea that somehow, under this Bill, we will save many children from an unhappy life is a mistake. I was disturbed to hear the noble Lord, Lord Irvine, say so categorically that there is nothing one can do about a dead marriage. I am not an expert on this but I do not think that marriages can be divided into those that are blissfully happy and those that are dead. There are many grey areas. There are quite good marriages just as there are good enough parents. Those parents and those marriages are perfectly good enough.
No doubt the noble Lord has come across, as I have, people who have divorced and who have regretted it later. Indeed, there is considerable evidence to show that that applies to many couples. To say categorically that were these amendments to be passed we should be propping up dead marriages, or trying to make dead marriages work, is not necessarily true. I accept there will be some marriages that are over, but they are not all over. Surely we should be looking at those that are not completely over—in the interests of children, if not in the interests of anyone else. I know that the noble and learned Lord, Lord Simon, and the noble Baroness, Lady Elles, do not intend to press these amendments, but I hope that the noble and learned Lord the Lord Chancellor will consider carefully the points that have been made to make quite sure that this legislation does not do even more damage to children who are already damaged so much by divorce.
4.15 p.m.
Lord Stoddart of Swindon: I very much agree with the noble Baroness, Lady Young, who has congratulated the noble and learned Lord, Lord Simon of Glaisdale, on bringing forward these amendments. They are important amendments, even if they are not to be voted upon, because they concentrate the mind of this Committee on the children, who will be worst affected by divorce.
It seems to me that we often forget the objective of marriage. The objective of marriage is for two people to come together and, by a civil or ecclesiastical process, make promises to each other that they will remain together, and indeed remain together to look after and bring up any issue of the marriage. If there is no issue of the marriage, it really does not matter whether the people are married or not; it is the issue of the marriage which counts, and it is the interests of the children of a marriage that count above all.
It seems to me that in the sort of society in which we live we are overlooking the prime duty of society to look after the interests of children. Society at the moment is, if I can describe it thus, rather looser than it was in my younger days. Indeed the media—television, the newspapers and what have you—seem to say to people, "Just gratify your ideas; never mind about the consequences, just gratify your desires, whatever they may be, sexual or what have you. Never mind about the consequences". But, of course, it is not for the state to say that that is all right when there are children involved. It is for the state to ask, "Is this where we want to go? Is this what we want to condone; or, indeed, is it something which we, for the sake of children, would like to alter?" That is the mistake of this Bill because what it does is to condone what is happening in society instead of trying to send a message to society saying, "Look here, we believe that society is on the wrong track and it is hurting the future generations upon which the society in which we live, the country which we love and the institutions which we have obeyed, depend". That is why I am so opposed to this Bill because, unlike the noble and learned Lord the Lord Chancellor, I believe it will make divorce a lot easier and therefore more children will be hurt by it.
I pose a question and perhaps a challenge to the noble and learned Lord the Lord Chancellor. Does he believe that this Bill will result in fewer divorces or more divorces? We need an answer to that question because we shall want to hold the noble and learned Lord to that answer in the future. My noble friend Lord Irvine of Lairg says that one cannot compel people to remain married if the marriage is dead. I agree with that, but when is a marriage dead? We do not know when a marriage is dead. Under this Bill it will be dead when one of the parties says it is dead. They may have been married only a, year before they can say that the marriage is dead. Our objective ought to be to say to people, "Think once; think twice; think many times", but that is not the message in this Bill. Although we shall not vote on this provision, I hope that the discussion that we have had on the noble and learned Lord's amendments will make people pay a lot more attention to children and a lot less attention to the immediate desires of people who might decide, for not
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very serious reasons, that they have had enough of a marriage which could, with a little trying, carry on for a much longer period of time.
Lord Elton: This is bound to he a most painful debate because we are discussing what is the least damaging outcome of what is in itself a disaster. Therefore, I find myself in some despondency in joining in and trying to understand how it is that people whose values I share, as I believe, come to completely opposite conclusions on this issue to those of myself and my noble and learned friend. It is probably not too much of an over-simplification to say that those who support these amendments, which are admirable in their intention, are working to a world as it should be. I think the Bill is working to the world as, regrettably, it is. It brings us back to the question pertinently put by the noble Earl, Lord Russell. He was not in the Chamber to respond to the fly cast over his empty place a moment ago by my noble friend Lady Young and to return to the issue. However, the question is this: are we trying to prevent separation or divorce, and what will be the effect of these amendments in desolate homes where a marriage has broken up?
The law cannot keep the couple physically together. They will in extremis go their separate ways and the children will fall between them without the care of the courts if these amendments, or anything like them, are carried at the next stage. It seems to me that we have to recognise that we are dealing with something unpleasant, regrettable, but actual. We have to minimise its destructive effects as much as possible. The amendments rightly put the interests of the child at the top of the agenda, but I do not think that they succeed in keeping the child there. They leave the child exposed, to be the victim of an unsupervised separation rather than a legally supervised divorce.
Lord Boyd-Carpenter: I have listened carefully to the debate and it is obvious that the arguments are evenly balanced. However, I ask my noble and learned friend the Lord Chancellor to deal specifically with Amendment No. 8 which seems to adopt a more balanced approach than the other amendments. Admittedly it imposes on the court a very difficult task. I do not underrate that. On the other hand, it does what a great many Members of the Committee have said should be done; namely, it mentions specifically the interests of the children. All who have spoken in the debate have been concerned, one way or the other, with the interests of children and with the sad effects that a divorce can have on the children of the family. Therefore, when my noble and learned friend replies I shall be most grateful if he deals fully with the arguments for and against Amendment No. 8, which seems to set out the interests of the children without going as far as Amendment No. 6. That amendment seems to me to go too far.
Viscount Cross: I venture to say a few words on the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, because it concerns children. I am sure that all Members of the Committee will agree that children need both parents—the mother and the father.

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The child support legislation talks about the "caring parent" which usually means in practice a mother with young children. I suggest that it is a totally misleading term because it implies, in another sense, that the father does not care. In most cases fathers care very much indeed.
I recall a case some years ago where, after the divorce had taken place, the parents agreed to share the holidays 50–50. The children, who were girls, were quite young at the time. The result was that the children had two happy homes in different parts of the country and they had two sets of friends. They had a very happy childhood. The arrangement worked extremely well, and the children were not spoilt by either parent. Of course no two cases are ever the same and divorce is always regrettable. I mention that particular instance to the Committee simply because it shows that divorce need not always be harmful to the children.
Lord Stallard: I shall not take up too much of the Committee's time because I do not want to start another Second Reading debate. The noble Lord, Lord Boyd-Carpenter, rightly says that we should concentrate on Amendment No. 8 if we are thinking of dividing the Committee. We have all read the results of the Exeter study which goes into the extent and reasons for damage to children affected by divorce. We all understand the position. As I said, we are not all lawyers, but nor are the people who are affected by these proposals. Most are not lawyers; most wish to God they had never met a lawyer. However, that is beside the point.
My noble friend Lord Irvine of Lairg has been quoted by my noble friend Lord Stoddart as speaking of a marriage being dead and saying that it is better for a child to live in a home where there is one happy parent. It is not the experience of most people who, as the noble Lord, Lord Elton, put it, live in the real world, that the one parent who is left is a happy parent. On the contrary, often that happy parent is out looking for somebody else much of the time and the children are left to contend with the guilt that they feel because they think that they have broken up the marriage. It is not necessarily true that the parent who is left is a happy parent and brings up the children in a happy background. Oh that it was! It is not like that and we have to take account of that fact.
The phrases "in this day and age" and "we have to keep up with the times" always grate on me whenever I hear them. The noble Lord, Lord Elton, spoke to that effect. Those phrases are used in connection with much legislation, and particularly legislation dealing with divorce. We are told that we have to come into line with things as they are. What an awful mess we would be in if we believed that and managed our affairs on that basis. In fact, what a mess we are in, as the noble Lord, Lord Donaldson, rightly says. We fall for that argument too often on many social issues. We are told we must move with the times. God help us, what times these are! There are some of the worst excesses we have ever known. We are all supposed to jump into line and forget our beliefs, whatever they might be, Christian, Moslem, or whatever. There is a basic belief that a marriage contract is made forever and that you break it only after a long period of reconciliation. That is what is missing
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from the Bill. The Bill goes straight from somebody saying, "I'm fed up with you. I'm packing it in, the marriage is over. You have 12 months notice and that's the end of it" to mediation to decide who gets what. There is nothing to say that the parties should assess the situation and not act too hastily.
For my sins, I have been married for 52 years. I would not say that it is an idyllic marriage. It is the same as everybody else's marriage. It has its up and downs, its rows and arguments. Of course it does. But there is a permanent state of reconciliation. That has to be so if a couple are determined to make a go of it and there is any feeling between the parties concerned, as there should be if they have had sufficient education before embarking on marriage.
Couples have to be taught what marriage means before they enter it. That is done by most Churches, or used to be. I understand that because they have come up to date and in line with the times some of that is now disappearing and that it no longer suits all Churches to act in that way.
The Lord Bishop of Oxford: I am sorry to intervene, but I feel I must correct the noble Lord. I can assure him that preparation for marriage for couples getting married in the Church of England is taken more seriously than it has ever been. It now takes a number of evenings. It is not simply a matter of a little chat with the couple or going through the service. It is taken very seriously. Often professional marriage support agencies are brought in to help.
Lord Stallard: I am grateful to the right reverend Prelate and I am delighted to hear it. That is how it should be. That is what we want to extend. We ought to extend our support to all those organisations which concentrate on that aspect. Even in schools we ought to be looking at preparation for what is a serious contract.
As it stands the Bill does not take care of that aspect. We are left with the amendments, which try to reduce the conflict. It is not only conflict which makes children suffer; the legal process makes them suffer even more. I hope that the noble and learned Lord the Lord Chancellor will take note of what has been said, which has all been in the same vein, before he finally wraps up the Bill.
4.30 p.m.
The Lord Chancellor: It is certainly my business to listen carefully to all that has been said. As the noble Lord, Lord Stallard, said, there is a theme, mentioned more than once, upon which all who have spoken are agreed. I should like to begin by responding to my noble friend Lady Elles. I certainly did not mean to treat her remarks on the last occasion other than with the utmost respect. I meant to show why it is not easy to say, from the experience of other jurisdictions, what causes a rise or fall in the divorce rate. That is what I sought to say. In no way was I seeking to minimise or undervalue what the noble Baroness said.
That brings me to the suggestion that the welfare of children is not at the forefront of what is proposed in the Bill and in the White Paper which preceded it.

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Speaking for myself, I consider that the welfare of children affected by marital breakdown is the centre of what we are about. I believe that we have a responsibility to ensure, as the noble Lord, Lord Stallard, said a moment ago, that the divorce process does not make the situation worse for the children. That is exactly what the Bill is intended to achieve: that the divorce process does not make it worse than it needs to be for the children and, of course, also for the parents.
I am the first to acknowledge, indeed to assert, that breakdown between parents is a disaster for their children. I believe that, in the ordinary course of events, children grow up to love and to be united to both parents as a unity because they have been accustomed to treat the parents as a unit. I think that good parents do their best to give that impression to their children at every opportunity. When the parents start to come apart, the child is almost torn apart because there is an affection in the child for each of the parents.
It is that thought which is behind my view that we should do everything that we possibly can to persuade the parents to stay together. That is the philosophy which underlies the Bill. However, if, having had every opportunity to consider that, the parents decide that they wish their marriage to be dissolved, a regime should be in place which minimises the danger and damage to the relationship with each parent. I think that it is clear that breakdown damages children. But it is also clear that to be able to maintain a relationship after the breakdown with both parents is the best outcome for the children in that sad situation.
The noble Lord, Lord Stallard, shakes his head rather deliberately. I do not know whether he means to contradict that proposition. I think that it is absolutely plain that of the children who, sadly, are afflicted by divorce, the ones who do best in later times, who develop best, are those who are able to maintain a good relationship with both their parents.
I believe it is clear that the Bill seeks to give parents every opportunity, before the final decision to divorce is taken, to consider those matters. One of the matters to be considered in terms of the Bill is the arrangements made for the children. Where there is difference about that, all the machinery of the Children Act applies. I believe that in practice the Children Act has been found in private and public law provisions to be of very great value.
We have to keep another matter in mind. When parents come into conflict there is a tendency, sadly, in some situations for them to seek to treat the children as pawns or as symbols of victory on one side or another. We must do everything we possibly can to prevent that.
I should like to follow what my noble friend Lord Boyd-Carpenter said. The centre of this debate is on what can be done in relation to the interests of children in connection with the divorce order. I think that it would be going too far to try to prevent divorce in every case where there is a child of the family under 16 or under 18.
This may be the right time to mention the letter referred to by my noble and learned friend Lord Simon of Glaisdale in introducing his amendment. He asked
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me a little time ago whether I could give the different relevant ages of children in relation to certain proceedings. I shall summarise the letter as it is rather long. The Children Act 1989 private law proceedings allow residence orders to children up to the age of 16 but it also provides for orders to continue beyond that age where the circumstances arc exceptional. In care proceedings, no care or supervision order may be made in respect of a child who has reached the age of 17, or 16 if he or she is married. Wardship may be awarded up to 18. A child is defined in the Child Support Act as a person under the age of 16, or under the age of 19 when receiving full-time non-advanced education who has not been married. Under the Children Act, financial provisions for children apply where the child is aged under 18 but Schedule 1(3) allows a periodical payments order to be extended for a child over 18 who is or will be undergoing education, or where there are special circumstances. I believe that those are the main headings. I shall not weary the Committee with others. A number of different ages ranging from 16 to 18 arc relevant to the matter. In any event, I submit to the Committee that to attempt to prevent divorce where there are children under the age of 16 or 18 is going much too far.
On Amendment No. 8, for many the fact that the order of divorce is being made at all would be regarded as contrary to the interests of the children if one embraces the philosophy that I mentioned earlier, in the sense that it would be better for the children if there were no marital breakdown and the parties stayed together. On the other hand, later amendments are directed also to the hardship bar which may well mean that at that stage a discretion should exist in the court to postpone the order of divorce. Indeed, Section 41 of the Act—it is already taken into account in connection with the arrangements for children—would allow the order to be postponed in some circumstances. Therefore, there are ways in which the interests of the children, in so far as they can be attained by a postponement of the order of divorce, may be taken into account. We can perhaps consider that in more detail later.
The noble Lord, Lord Stoddart, suggested that the Bill has the effect of increasing the scope for divorce. In my submission to the Committee, the whole purpose of the Bill is to do what reasonably can be done to give the parties an opportunity to consider carefully before they go forward to an ultimate divorce. Perhaps I may emphasise one aspect. The noble Lord, Lord Stallard, said that mediation is about what will happen. One important consideration in deciding whether to divorce is what will happen. Sometimes, parties go ahead and divorce without realising what the practical effects will be. They know what the present situation is and the aspects of it for which they do not care. But it is very difficult to know what the future will be like.
The noble Lord, Lord Stoddart of Swindon, sometimes echoes the views of Families Need Fathers on this aspect. One of the most devastating consequences of divorce for some fathers is that they have the greatest difficulty maintaining suitable contact with their children. A firm realisation of that at an earlier stage in the development of the relationship with

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the mother of their children might have a very salutary effect in preventing them going forward. It is therefore important that the mediation provisions are in the Bill, and that the Bill envisages mediation as a way of examining the future in order that parties may consider whether they want such a future or whether they would prefer to seek to repair the relationship and proceed with their marriage.
We should do everything we can within the framework of the law to encourage parties to stay with a living marriage and to have that marriage continue alive. There are obviously different standards and measures of that. But in reality it is the parties who must ultimately conclude the matter in the light of all the circumstances.
The interests of the children are at the heart of the Bill. This is one of the most important matters to be resolved before a divorce goes forward. I agree that it would be unwise to stipulate that no divorce should take place where there are children under 16 or 18. I share entirely the anxiety about children expressed by my noble and learned friend Lord Simon of Glaisdale in moving the amendment, by my noble friend Lady Elles and by all others who spoke on these matters. If I could achieve that all who are married stay happily together married, I should be absolutely delighted. I believe that marriage is the most rewarding of all human institutions and the best possible background and atmosphere in which children should be brought up. I do not seek to encourage divorce when I say that we have, however, to face the fact that marriages break down. We have to make the best arrangements we can when that happens and do everything we can within that framework to preserve, as far as possible, opportunities for the parties to keep their marriages going.
I hope that in the light of this discussion my noble and learned friend will feel able to withdraw his amendment, realising that many of the sentiments that underlie his moving of it are embraced in all parts of the House and that we are all anxious to secure the best practicable arrangements for achieving those results.
Lord Stoddart of Swindon: Before the noble and learned Lord, Lord Simon, replies, I wonder whether the noble and learned Lord the Lord Chancellor could reply to my question. Does he believe that this Bill will increase or reduce the incidence of divorce?
4.45 p.m.
The Lord Chancellor: It is always tempting to don the mantle of the prophet. One commentator on matters of divorce law cautioned very strongly against doing so. It would be unwise for me to disregard that caution. Many factors can affect the rate of divorce. The precise terms of divorce law are only one such factor. However, what I do claim, for the Bill is that it provides the best framework that I have been able to come up with so far to encourage people whose marriages get into difficulty to try to heal their relationship rather than divorce. Therefore the tendency of the Bill is to reduce rather than increase the number of divorces. It will not be the only factor in the future, assuming that it passes into law in something like its present form, that will influence the number of divorces at any given time.
The Earl of Perth: I was particularly interested in the noble and learned Lord's description of mediation. It seemed that he was saying that if we have mediation, as part of it we may have reconciliation, and that is what we want. But so many of us feel that reconciliation is the more important factor. It is not clear from the Bill as I read it that reconciliation is the purpose rather than mediation, which is to make things easy for the divorce. I hope that we can try to get round this dilemma and be quite clear that, before there is mediation, there should be a separate section dealing with reconciliation.
The Lord Chancellor: Perhaps I have not properly explained the situation. The point about mediation that I was trying to make is this. It concentrates on what the relationships will have to be if the parties go forward to a divorce. They need to discuss that. It involves past conduct because that raises questions in relation to the distribution of property. It is quite wrong and unwise to suggest that reconciliation and mediation should be separated.
I have heard it suggested that I do not know the difference; I believe I do understand the difference. My point is that it is unwise to put them into separate, watertight compartments. My experience, such as it is, is that when people look to the future and see what the form for the future will be, it may well persuade them that they are better off with what they have. Therefore, instead of going forward to destroy their relationship completely, they may go back to try to repair it. If parties have reached the second part of the divorce stage—namely, after getting information, they want to go ahead—the situation has gone a fair distance. I want to make sure that there is no stage before the very end at which reconciliation is finished. It is important to keep it alive for as long as possible. One factor that may assist is consideration of just what the future will be. Apart from anything else, the most obvious consideration is that two households will not be able to live as cheaply as one. The dawning of that realisation on some people might just have a salutary effect on whether or not they want to go forward.
Lord Coleraine: I am sorry to detain the Committee at so late a stage in a long debate, especially after my noble and learned friend on the Front Bench has spoken. However, there are points still to be discussed and I wanted to hear his remarks before doing so. We have not yet delved into, and got to the bottom of, the question of parental conflict and whether it is the conflict or the divorce that so damages the children.
The right revered Prelate the Bishop of Liverpool, who is no longer in his place, referring to remarks made a fortnight ago, made the point that the period for reflection and consideration—presently 12 months—is a long time in the life of a child. It is a long time during which that child may be subjected to conflict. He contrasted the 12-month period with a possibly longer period of 18 months, but in doing so, he begged the question. He assumed that at the end of the 12-month or 18-month period the conflict would cease. But it does not cease. It goes on. The real question is how long it would take to resolve the problems for the future which affect the children. It is not sufficient to say that 12 months is a long time in the life of a child.

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The White Paper has a great deal to say about parental conflict. It says at paragraph 2.11:
"While children are inevitably affected when their parents separate, research shows that it is conflict between the parents which has been linked to greater social and behavioural problems among children rather than separation and divorce itself".
At paragraph 2.22:
"Research has shown that children suffer and are damaged as a result of conflict between their parents, whether the parents are living together or apart".
The word "conflict" is there emphasised.
At paragraph 3.10:
"As noted in Chapter 2, while these children are inevitably affected when their parents separate, it is conflict between the parents which has been linked to greater social and behavioural problems among children rather than the separation and divorce itself".
At paragraph 4.37:
"As mentioned earlier, research has demonstrated that children are greatly harmed by conflict between their parents, especially if they are drawn into that conflict as go-betweens or intermediaries, as happens all too often in present divorce cases".
What exactly is the recent research which has so clearly established that proposition? That is an important question, on which many other questions depend and which I hope my noble and learned friend will be able to answer, though not necessarily today. The kind of points that depend on the answer to that question are questions such as the length of the period of reflection and reconciliation and whether there should be some right for a limited period of one spouse not to be divorced against his or her will.
For my part, I am happy to concede that I am not in a position to give any definitive judgment on the value of the Exeter Family Study, to which reference was made earlier in the debate. However, I remind the Committee that, unlike the White Paper, it makes no categoric statement as to whether parental conflict or divorce is worse for children. The study merely states that children whose parents have been through divorce are worse off than children whose families remain intact. The study states that the data suggests that parental separation itself has a major association with difficulties for children. But the study goes a little further. It suggests that the belief that it is better to resolve a high conflict situation by ending the parental relationship than by allowing it to continue may, in fact, be a misunderstanding of the situation.
It appears to me that the authors of the report make their points with scrupulous integrity and, given the appalling consequences of divorce for the children involved in that divorce, with the loss of parents, it must be up to those who believe that in high conflict families divorce is in the best interests of the children as well as of the parents to produce some evidence. That has not yet been done. It is taken for granted in the White Paper, even if stated to be demonstrated by recent research.
The general question is whether families should stay together for the sake of the children or whether they should separate for the sake of the children. Both points can and have been argued. Overwhelming logic suggests
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that it is for those who argue the second case to put their cards on the table and show exactly why they feel that way.
The Lord Chancellor: Perhaps I may just supplement what I have already said. First, in connection with these amendments, I am suggesting that the process—assuming that there is a divorce—should minimise the following conflict. At this juncture I am not concerned with whether or not divorce is or is not better than constant squabbling. That must be a matter of degree, on which it would not be for me to make a judgment. It must be for the parties to judge ultimately whether or not their relationship can survive the conflict.
The point that I am trying to make is a separate one; namely, that it is quite clear from every study that if a child retains a good relationship with both parents the child will be the better for it. Therefore, the thesis on which I am operating is that we should do nothing to damage the relationship of the child with either parent by introducing any unnecessary conflict between the child and parents in the divorce process.
Let me answer the question put by the right reverend Prelate the Bishop of Liverpool. He pointed out that it is not conflict that is at issue when judging the length of the period. What is at issue then is the question of uncertainty: how long should that uncertainty he which is involved in the period of consideration and reflection? It has been suggested that a year is a long period of uncertainty in the life of a child. I agree that that is a difficult question and we are not absolutely sure of it at present.
Lord Simon of Glaisdale: I am most grateful to those Members of the Committee who have taken part in the debate. Naturally, I am particularly grateful to the noble Lord, Lord McGregor of Durris, for bringing us his experience as an academic sociologist, well used to handling statistics, and his knowledge of the need for a control group. After all, not only was he a member of two important committees and not only does he have an academic background but he was one of the three people who carried through the very important statistical survey on separated partners.
I am grateful also to my noble and learned friend the Lord Chancellor for giving the figures in relation to age of responsibility for the laws concerned with the welfare of children. He did not deal with all the details. He gave sufficient to enable us to make up our minds but, with his consent, I shall place his letter to me in the Library.
Considering the argument on age, it seems preferable to plump for 18, as suggested by the noble Baroness, Lady Elles. I took the age of 16 largely because that is the age that appears in most of the statistics and because it is the age of consent to marriage and the age of leaving school. But in these days of further and higher education, one wants to look further, as indeed the law does in some circumstances, as my noble and learned friend suggested.
My noble and learned friend was noticeably cautious in reply to the crucial question put by the noble Lord, Lord Stoddart of Swindon; namely, whether this

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measure will lead to more divorce, about the same number, or less. If there are more divorces, more children will he placed at risk.
Although he was cautious, on the whole my noble and learned friend's argument was optimistic; that is, that it is best for children to have a happy relationship with both parents after divorce. The Committee was perhaps reminded of the highly optimistic speeches that were made in 1969. Lord Stow Hill declared himself enthusiastic for the Bill, whereas we now have it denounced by its very author—the Lord Chancellor's Department. Not only is there that background, but also is it reasonable to be optimistic when we have seen the fall-out from the Child Support Act?
The only other point I wish to deal with was adverted to by my noble and learned friend, but put with characteristic clarity by the noble Lord, Lord Irvine of Lairg. He asked how the law can help if a marriage is dead. The central argument in this debate is that, if there is a child, it is impossible to say that the marriage is dead; it is living in the child; it is living in the responsibility of the parents to the child.
I said that this was an exploratory amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 7 and 8 not moved.]
5 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 9:
Page 2, line I, at end insert—
("( ) there is subsisting no relevant agreement in affirmation of marriage under section (Affirmation of marriage);").
The noble and learned Lord said: Amendment No. 9 is different. It gives the parties to a marriage the right to enter into a binding agreement that the marriage,
"shall be indissoluble except by death",
Or,
"indissoluble except by death so long as there is any child of the family".
The crucial amendment in this group is Amendment No. 96 which states:
"The parties to a marriage may at any time before, at or after their marriage agree in writing that their marriage shall be indissoluble except by death".
That is a general agreement in affirmation of marriage. The second alternative is that:
"The parties to a marriage may at any time before, at or after their marriage agree in writing that their marriage shall be indissoluble except by death so long as there is any child of the family under the age of 16 years".
As a result of the last debate, we should perhaps raise the age to 18. The rest of the new clause is mainly consequential. It, provides that:
"A general agreement in affirmation of marriage may be discharged by an agreement in writing to that effect by the parties to the marriage".
In other words, the provision treats marriage like any other contract. What is strange about the Bill is that it does not treat the agreement to marry like any other contract which can be discharged by consent; it treats it as the type of contract that can be discharged by
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unilateral repudiation by one of the parties. I have read most of the subsection. But it continues that the agreement may not be discharged even by consent where there is a child under the age of 16, or 18—that turns on the arguments canvassed in relation to the last amendment.
It should not be necessary to provide that the parties can enter into that sort of contract. On the face of it, whether at a registry office or in some religious ceremony, the parties have already promised. However, the law regards such promises, made even in such solemn circumstances, as being able to be cast off not only by consent but also by the wish of only one of the parties, however much to the detriment of the other, however oblivious to the welfare of the children. It is only because we have got into that situation in the law and are getting into it further with this Bill that the Committee may wish to consider this amendment. I beg to move.
Baroness Trumpington: Perhaps I may be a bore once again and ask the noble and learned Lord whether he is also speaking to Amendments Nos. 17, 34 and 96, which are grouped with Amendment No. 9.
Lord Simon of Glaisdale: Once again, I am grateful to the noble Baroness. Those amendments are all ancillary. I shall not speak to them specifically and shall not move them in due course if I withdraw Amendment No. 9. Does that satisfy the noble Baroness? Evidently it does; so my day is made.
The Lord Chancellor: My noble and learned friend explained the effect of these amendments, the principal one of which is Amendment No. 96. In the past, in the majority of marriages both parties entered the marriage with the view that they wished it to continue for as long as their joint lives. The circumstances which give rise to divorce are supervening circumstances which are not envisaged by the parties at the time they enter into the marriage.
As I said earlier, preparation for marriage is an important matter and we should consider the nature of available help in that area. Subject to that, creating a second tier, a new arrangement under which there is one type of marriage which is more easily dissoluble than another, would not be very satisfactory.
Since divorce has been available under our law, the possibility has existed that the marriage will come to an end in law before the death of either party. To try to make some new arrangement for one type of marriage where that could happen and another where it can happen only by agreement would not be a desirable development. I believe that what we want to concentrate on is the institution of marriage which we have and we hope that it will he as effective as possible in providing a satisfying life-long relationship between the parties. I would not myself be in favour of supporting this group of amendments.
The Lord Bishop of Liverpool: I rise briefly to support what the noble and learned Lord the Lord Chancellor has said. In considering divorce, there have been times when Christians have been tempted to

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suggest that civil marriages are somehow less than religious marriages. It is a profoundly unhelpful notion that there are two layers of marriage. It would damagingly and seriously weaken what we mean by marriage, which is when two persons willingly in public make their vows to each other. There is one marriage and it is a true marriage.
Lord Irvine of Lairg: I respectfully agree with the noble and learned Lord and with the right reverend Prelate the Bishop of Liverpool. It is the marriage ceremony itself which affirms the marriage. To accept these amendments would be to devalue the solemnity of marriage, whether celebrated in church or in a registry office. I agree that there should not be two tiers of marriage and I associate myself with the noble and learned Lord's desire to strengthen the one institution of marriage that we have. I therefore oppose these amendments.
Lord Stallard: I wish to support the noble and learned Lord's amendments. I agree with what the right reverend Prelate said. We accept civil marriage. There is an arrangement and agreement. The point which the noble and learned Lord, Lord Simon of Glaisdale, makes that influences me is that the Bill sets up a new structure where one party to the marriage can say, "It's over and all we have to do now is wait 12 months". That is what makes the arrangement different from what the original marriage agreement was.
One is undermining the marriage agreement by saying that that is the agreement but that it is all right if one of the parties says to the other one, "I'm fed up with this. Let's wait 12 months and get out of it". We have set up this new agreement and many people will take advantage of it. That is why we are concerned that the Bill diminishes the sanctity of marriage. That is why the amendment needs a little more consideration than it has been given.
Lord Simon of Glaisdale: I am again grateful to those who have contributed to the debate. The normal principle of English law and, I think, of Scottish law too—in fact of most civilised systems of law—is that the parties can enter freely into such agreements as they choose provided the agreement is not contrary to public policy. What I envisaged in this amendment is that the parties can affirm the promises now regarded so lightly by the law that they made at the marriage ceremony. They can affirm those promises. In particular they can affirm the indissolubility of marriage so long as there are young children to whom they thereby recognise they owe an obligation. Is that against public policy? Is it not rather in accord with public policy? If so, why are we so reluctant, why are we so avid for divorce that we refuse the couple that freedom to contract?
I undertook at the beginning of the Committee stage not to press any of these amendments. Having said that, and, I am afraid, being dissatisfied with three of the speeches that have been made, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 10:
Page 2, line 2, leave out ("attending information sessions") and insert ("obtaining information").
The noble and learned Lord said: With this amendment, if I may spare the noble Baroness, Lady Trumpington, an unnecessary intervention, your Lordships may find it convenient to discuss Amendments Nos. 63, 65, 67, 70, 76, 77 and, although I think it is not included on the written list of amendments, 75, in the name of my noble friend Lady David.
Amendment No. 10 is as one born out of due time because really it is a paving amendment for a group of amendments to Clause 8. I hope your Lordships will not think the less of it for that reason. Clause 8 seeks to provide that before making the statement which effectively initiates these proceedings the party making it must have attended an information session. If the other party wishes to make or contest an application, that party must attend an information session. Clause 8(4) defines the expression "information session"— I paraphrase—as a meeting for the purpose of providing information about matters which may arise under the Bill.
We have no quarrel with the purpose of providing information to the parties about the provisions of the Bill. I presume to say "we". The noble Earl, Lord Russell, who was kind enough to add his name to my amendment, has explained to me that he has an unavoidable commitment and consequently has to be absent and my noble friend Lady Birk has for family reasons to be absent too. But I think I can presume to say that we have no quarrel with providing information on the provisions of the Bill and, I suppose, the consequences of making or opposing an application. That seems to be a valuable idea which might be extended to other areas of law. As the noble and learned Lord the Lord Chancellor said in an earlier debate, it may be that a clear understanding of what is involved may serve to dissuade the parties from proceeding with the divorce. Although I think the noble and learned Lord said it in the context of mediation, it may apply very much too to the giving of information.
What troubles us is that the Bill appears to envisage a meeting as the only method of providing that information. That raises a number of questions in our minds. First—this is perhaps the most glaring one—are both parties to attend the same meeting? I think we have the answer to that because on Second Reading the noble and learned Lord the Lord Chancellor was kind enough to confirm, in answer to a question from the noble Earl, Lord Russell, that no one will be compelled to attend a meeting with the other partner to the marriage. That is what we would expect. It does not seem appropriate that they should attend the same meeting, particularly when it may have been a marriage where violence was involved. But even where the husband is not present some women may be so reluctant to attend a meeting where friends, neighbours or other people they know can see them coming and going that they actually may decide not to avail themselves of the provisions of the Bill. It would be helpful if the Committee could be told

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whether it is envisaged that meetings will he on a one-to-one basis or whether a number of potential divorcees shall attend at the same time.
We would also be grateful for some indication of the kind of venue that is envisaged. National Family Mediation has wide experience of matters relating to mediation and, presumably, to the giving of information. It emphasises the importance for this purpose of accessible, comfortable and relaxed premises. Clearly, if someone who is already under stress is on the verge of a nervous breakdown because they could not get through the door or make themselves heard, or who had to pass through a group of friends and neighbours, that is not going to assist the purpose of the provision.
Will there be guaranteed privacy? Parties wishing to discuss their position as opposed to sitting silently and listening to a more or less formal lecture—and I assume that is not what the noble and learned Lord has in mind—must be entitled to privacy and confidentiality. From time to time I have occasion to visit venues where tribunals are heard. I have sometimes been in attendance when the tribunal was deliberating in private and discovered that we could hear every word of the conversation taking place in the next room. I assume that anyone sitting in the next room could hear every word of the conversation. So clearly some attention has to be paid to the venue.
All this may be particularly true of women from minority ethnic groups where there are frequently cultural inhibitions about public discussion of private issues. The Women's Aid Federation, to whom I am indebted for a great deal of advice on this, is concerned that these problems may bear disproportionately on wives since in any event more women than men seek divorce.
I hope that the noble and learned Lord can tell us whether the information session is seen as a substitute for legal advice and representation. The normal way for a person to obtain information of this kind is to seek it from a solicitor. There may be circumstances where those considering the grant of legal aid may be satisfied that the applicant has access to all the information and advice which may be relevant, but normally, I assume, a party will want to discuss the various orders which may be made in the circumstances of that specific family in relation to maintenance, property and provision for the children. Unless a confidential discussion can take place with a knowledgeable individual who is there to look after the interests of the party concerned and who is on that party's side, no meeting can be a substitute for a session of that kind with a solicitor. When he replies perhaps the noble and learned Lord can assist us as to the relationship between the information session and the proposals for mediation. I assume that part of the information to be given at the information session will be about the availability of mediation and how to approach a mediator. Presumably, it will not be the same people who do both. Any assistance which the noble and learned Lord can give us on that matter will be welcomed.
There are various ways of getting information and Relate has made some helpful suggestions about that. One way is to provide information packs or videos.
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There is a whole spectrum through to sessions with trained counsellors. Our problem of course is that the provisions relating to all these matters are to be in regulations. Clearly, the noble and learned Lord cannot anticipate in detail the regulations which he is proposing to make, but in considering Clause 8 I hope that he will feel able to share with us his thinking on how this proposal will operate.
The noble and learned Lord spoke of a number of pilot schemes. I am not clear whether the operation of the Bill is to be postponed until those schemes have operated and the results are known. Obviously that, too, is going to be part of our judgment about the workings of Clause 8. I hope that this debate itself may prove to be an information session because that was our purpose in setting down these amendments. Any further information which the noble and learned Lord can offer as to his intentions may help to alleviate some of the anxieties which have been expressed and enable us to decide whether they are well founded. I beg to move.
Baroness David: I should like to speak to Amendment No. 75, which has been allowed to be grouped with these amendments as it was on the previous Committee day, llth January. This amendment is in my name and that of the noble Baroness, Lady Faithfull, and the right reverend Prelate the Bishop of Oxford. It is a probing amendment, the intention of which is to obtain further information about the plans by the Lord Chancellor's Department for pilot schemes to establish the best means of conducting the information sessions provided for in the Bill. We would like to find out how the operation and evaluation of pilot schemes will fit in with the drawing up of regulations and the implementation of this part of the Bill.
We support the provision of information for those considering divorce, which the Bill introduces, but we want the Government's assurance that this information will be given in such a way that those receiving it will be helped to envisage and fully understand the divorce process before they are caught up in it.
Already National Family Mediation's local services are approached by a large number of individuals seeking impartial and child and family-focused information that they have come to associate with mediation and which is available nowhere else. In 1994, 16,000 people approached the then 62 services around the country. These people are already confused, often shocked, by the beginning of a breakdown in their relationship and nearly always undecided about their course of action. Many who first approach a Family Mediation service in preference to a solicitor say that they are fearful that going to a solicitor will begin a legal process over which they will have no control.
It is important that the Government make clear that they intend that information given under the provisions of the Bill will be in a form that continues to be perceived as helpful to those receiving it, so that they will feel safe, comfortable, unstigmatised and treated with dignity; and that the information will be imparted in ways which ensure that they understand it.

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The venue for information sessions is important, as my noble and learned friend Lord Archer said, and it should not be in a lawyer's office or in a room at the court, unless these are specifically redesigned for the purpose.
For example, National Family Mediation offers a pleasant, professional, informal provision. The venues are furnished with comfortable chairs, with literature displayed about the needs of both children and adults in divorce. There are receptionists experienced in dealing with people caught up in the emotional upheaval of marital breakdown.
National Family Mediation hopes that it will be able to run some of these schemes in order that its professional but non-legal, child and family-focused approach to the provision of information, may be evaluated, along with others. National Family Mediation would wish to encourage the Government to pilot different combinations of a variety of forms of provision of information and my noble and learned friend Lord Archer mentioned some of them. NFM has a number of proposals for these information sessions and I hope that the noble and learned Lord's department will discuss with it the various ways of providing this service.
I should like to say how grateful I am to the noble and learned Lord for the letter he wrote to me after Second Reading in which he said, about the information sessions:
"As I said in closing the debate, I do not yet have a definite idea of how the sessions should be arranged, and would welcome any advice or comment on the subject".
I believe that both my noble and learned friend and I have made some comments, which I hope very much will be helpful.
The Duke of Norfolk: I say very briefly to the noble Lord, Lord Stoddart, that I believe that this Bill will have a very great effect on marriage. I believe it is the turn of the tide and that we are going to see far less divorce and more family life as a result of it. I greatly support the noble and learned Lord the Lord Chancellor in all his efforts to bring this legislation before your Lordships' House and in particular his White Paper.
I turn now to the enormous group of amendments which basically deal with counselling and advice. I want to refer to the totality of the advice that is given to married couples. Unfortunately, at the moment couples tend to get married but the Churches then have less and less effect on their lives. In some ways, we are living in a country that is becoming more and more pagan. Oh that the Churches had more effect after the marriage ceremony! I am speaking not merely about the Church of England, but also about the Popish Church to which I belong. People get married in my Church but do not see enough of their priest or talk about their marriage difficulties with him.
At the moment, marriage counselling is successful in 25 per cent. of marriages. That is an enormous figure. I should like marriage counselling to start with advice being given by the social welfare people and, of course, by the Churches to try to assist the very young before
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they become engaged. That should continue after the engagement, during the marriage and once there are children. Marriage counselling and help should continue throughout a marriage.
I have heard it said that there are very few people available who can carry out marriage counselling. My eldest daughter is a marriage counsellor. She has passed her marriage counselling exams and interviews. She is an example of one category of person who is most suitable for marriage counselling work. She has four children. They are now on their way, having been to university, or about to go. She has what in America would be called an "empty nest". That is a wonderful phrase. It means that she has the spare capacity with which to help people. Someone who has had a family of four and who has an empty nest not only knows a lot about bringing up families but has the spare capacity to help.
Another group of people who would make very good marriage counsellors are widows or widowers. They know a lot about marriage and they too have the spare capacity. Another group are, of course, the divorced because they often see the sadness of their break-ups.
We should increase the assistance that is given to married couples from the very start to the very end of their marriage. We should do so through marriage counsellors and the Churches. It is essential that state money is provided. At Second Reading we talked about £3.5 billion being the cost of divorce in one year with only £3 million being given to marriage counselling. I should like to see an enormous sum of money made available to marriage counselling under the supervision of the noble and learned Lord the Lord Chancellor in order to stop the awful increase in the number of divorces and to protect married life and the family life of our young children.
5.30 p.m.
The Lord Bishop of Oxford: Some important questions have been raised by the noble and learned Lord, Lord Archer, and the noble Baroness, Lady David. We on this Bench shall listen with interest to what the noble and learned Lord the Lord Chancellor says.
I should like to stress two points from the Bishops' point of view. First, we place great store on the information sessions. They are a crucial feature of the Bill. It is at such sessions that people will be offered information about, and told of, the availability of, marriage counselling and mediation services. Therefore, the context in which the information is purveyed and the people who purvey it are desperately important. It is vital that those who attend the sessions are ready to hear such information.
The noble Duke, the Duke of Norfolk, was looking ahead—to the great value of the Committee—when he referred to a later group of amendments about marriage counselling. It is at the information sessions that the availability of marriage counselling will be made known. If the noble and learned Lord the Lord Chancellor is willing to accept what I say I hope that it will be free marriage counselling. We place great stress

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on the information sessions. It would be appalling if they became a perfunctory formality. They need to he taken with the utmost seriousness.
Baroness Hamwee: I agree very much with what the right reverend Prelate said, including his points about the need for marriage counselling and the necessary funds. The point was also mentioned by the noble Duke. I have to say, however, that I do not altogether agree with the noble Duke on one matter. I think it is important that counsellors are trained so that they bring their professional expertise, and not their personal experience, to bear as their major contribution to the counselling sessions.
In supporting the group of amendments on information sessions, perhaps I may say that it seemed to me on Second Reading that the word "session" was too prescriptive, despite the way in which the noble and learned Lord the Lord Chancellor explained what those sessions might comprise. The noble and learned Lord said that he hoped to arrange pilot sessions. I use the word "session" although I do not think it a good word to use because it suggests something large and communal such as a group. I do not think that that is helpful. I hope that that is not what is intended, at any rate not for all of those who require information.
The word "session" suggests that, even though it may not be open to the general public, the fact that the session is taking place may be public information. That in itself may lead to considerable difficulties for those who may be attending. Indeed, it may act as a disincentive to those who should attend and who are considering what steps they should take next. I refer, for example, to the fact that their attendance at a session may become general knowledge within their own community and to the effect that that may have on the children. Your Lordships have already discussed the effect on children at great length. I am deliberately using an extreme example, but if public figures were involved, tabloid newspapers could "doorstep" the sessions.
It is because of the difficulties surrounding the word "session", without questioning the underlying proposal that information should he made available, that I hope that the noble and learned Lord will reconsider the terminology used to describe the information sessions.
Lord Stoddart of Swindon: Perhaps I may advise the noble Duke, the Duke of Norfolk, that although we differ on the effect of the Bill, I hope that he is right and I am wrong and that there will be fewer divorces as a result of it. On this occasion nothing would please me more than to see the noble Duke proved right and myself proved wrong but, unfortunately, I do not think that that will happen.
I agree with the noble Duke that marriage counselling is most important. It always has been important; it still is; and I hope that it will remain important in the future provided that it is directed at saving the marriage. I fear that much marriage counselling does not go that far. I am sure that the noble Duke's daughter would agree with me completely that marriage counselling is about saving marriages, not the reverse.
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I hope that the noble and learned Lord the Lord Chancellor will not accept the amendment. I sincerely hope that the least that will be required is that the person who is asking for a divorce—and, indeed, the person who is at the wrong end of it—will attend at a face-to-face session with somebody who can give him or her some information.
As the amendment stands, a person embarking upon an important and far-reaching step could rely upon hearsay information. He or she might receive it over the telephone, or someone else might telephone and pass on the information second hand. Under those circumstances, unless the person were to attend the session face to face, he might receive quite the wrong information through third parties. I do not often disagree with my noble and learned friend Lord Archer of Sandwell, for whose abilities I have a great respect, but I fear that in this case I have to disagree with him, because I believe that the amendment he has moved is not merely wrong in principle; it is badly drafted.
The Lord Chancellor: It is a great pleasure for me to find the noble Lord, Lord Stoddart of Swindon, wishing to support a measure in the Bill as against amendments proposed from his Front Bench. That is just an indication of the fact that there is much more common ground between us than a superficial observer of these debates might think. I believe that we are all anxious to do what we can, in practical terms, to support the institution of marriage.
The provision with which the substance of the amendments is concerned is vitally important. In the ordinary course of events, people whose marriages get into difficulties are in the general structure of our society, and whether they know of the existence of services that might help them may be a matter upon which it will be difficult to ascertain their position.
When someone thinks of approaching a court for the purpose of initiating a divorce process, there at least is a contact that will have to be made. I wish to build upon that essential fact to try to ensure that people do not just obtain the information but that they obtain it in such a way that they understand it. In my conversations with district judges, and in conversations between my officials and district judges, it is apparent that often people who are already quite far into a divorce process do not know of the existence of mediation and counselling services. It is important that before people begin—that is where the information session is placed—they should have as good information as we can give them and that also—this is the motivation behind the reference to the word "session"—there is some attempt to ensure that they have taken that information on board. There is a limit to what anyone can do about that matter, but that is why I have suggested an information session.
The first point is to try to obtain some method by which people do not merely have pieces of paper presented to them, but that some effort is made on behalf of the state to ensure that they have assimilated the information as it affects them.
Secondly, I am anxious about the bias of the information. The noble Lord, Lord Stoddart of Swindon, suggested that some marriage counsellors are not so

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much about marriage counselling as about preparing the way for divorce. I think that is a summary of what he said. My understanding is that marriage counselling has a high success rate. I believe, as my noble friend the Duke of Norfolk said, that some 25 per cent. or so of those who are separated at the time of going to counselling reconciled some six months later, and of those who are still together at the time of going to marital counselling, the majority stay together. That is an important fact. In a sense they have attended earlier in the deterioration of their relationship than the first group, and it would not be surprising that the rate of success is greater. I believe that the earlier the service is available, the better. That is why, like my noble friend the Duke of Norfolk, I attach a good deal of importance to the preparation for marriage, which is referred to later.
The next thing I feel about the sessions is that there should be no bias between the different types of service that may be available. The noble and learned Lord, Lord Archer of Sandwell, referred to legal advice. Legal advice is one of the services about which I would wish information to be available. I also wish information about mediation and marriage counselling to be made available.
One cannot be certain that if one goes to a mediator one will receive a completely objective view about what the lawyer can do. If one goes to a lawyer it is just possible that one might not have as full an appreciation as otherwise of what a mediator could do for one without the help of a lawyer. Therefore I thought that if possible I would like the people who offer the services to be able to present them in the information session. I used the word "session" in the sense that more than one interest would be presenting information.
I want unbiased information on the whole range of services available to be given effectively to anyone who is thinking of starting a divorce process. Those are my requirements. What is the best way of achieving them? I think the best way is to try to find out in trials what could be done. Some people may be willing to attend an open session with a number of people. Others would not. It is a question of what is the best method. That is what I want to pilot. My present view is that the Bill. with its new provisions, should not come into force until the pilots are concluded. Obviously I am open to persuasion as the Bill proceeds, but the information session is so fundamental to the whole idea that it is wise to have it in place, with the proper regulations, before the grounds of divorce set out in the Bill become effective law.
I am anxious to secure a phrase in the Bill which emphasises the importance of those provisions of information; the need that they should be effective; and one which still gives me reasonable flexibility to try as many different models as possible. It is fair to say that a regulation-making power is always looked upon carefully by Members of this place. I am anxious not to open it too widely. On the other hand, I believe that what I have said are the essential qualifications—whatever words the Committee might think appropriate—should be considered.
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I am loath to depart from "information session", for the reasons I have just given. It may he that we could devise alternatives if the Lord Chancellor were satisfied that in given circumstances they were as effective as face-to-face sessions. Obviously there are some people who might be unable to attend a face-to-face session. Regulations would have to deal with the special circumstances of the housebound and people of that sort who might he in a difficulty. It is the essential quality, the essential nature, of what is in issue that I wish to set before your Lordships. I also attach a good deal of importance to confidentiality. In many cases, the last thing that a person wishing to repair his or her marriage will wish to disclose is that it is in difficulty. Therefore, for some, confidentiality of the information might be important.
I have the impression that a video presentation may be a useful way of presenting the matter to many people, having regard to the extent to which such visual means of communication are used today. That is what I want to try, and I wish to give people the chance to ask questions but not about their own particular circumstances. The last thing on earth that I want the information sessions to do is to pry into the circumstances of the individual who attends, except in so far as he or she wishes to ask about the nature of the services. That kind of discussion will take place at the taking up of the appropriate services. The information sessions are intended to be preliminary. That is what I have in mind, and the wording that I have used is designed to encapsulate that. If Members of the Committee can improve on it while still giving the essential quality to the efforts that I have indicated, I shall be happy to consider it.
Lord Archer of Sandwell: I am most grateful to the right reverend Prelate the Bishop of Oxford for saying what was in my mind even if I had not expressed it—that those of us who have tabled the amendments regard the information sessions as of great importance to the whole scheme of the Bill. As the right reverend Prelate said, one of the points that might emerge from the information sessions is the availability of marriage guidance and conciliation so that divorce may not proceed. I am grateful to the noble Duke, the Duke of Norfolk, for having pointed out the importance of that aspect among the various kinds of information we are discussing.
Clearly, I misled my noble friend Lord Stoddart. When he and I disagree it is always important that we look carefully at where we are disagreeing. I suspect that in many cases it is that I did not express myself very well and I misled him. Believing as I do in the importance of the information sessions, it was no part of my intention to propose that they should be dealt with in a cavalier way and that the information should he given in a perfunctory manner. Quite the reverse. I had hoped that the Committee would wish to be satisfied that the information sessions would be in a form which would not deter any of the parties from wishing to attend, would not intimidate them before they arrived and would ensure confidentiality, if that was in their minds. That was the purpose of our initiating this debate.

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I suspect that the noble Baroness, Lady Hamwee, put her finger on the point when she said that the word "session" could be misleading in this context. Perhaps if anything has emerged from the debate about the actual form of the Bill it is that we could all direct our minds more carefully to the use of that word. It conjures up the kind of public procedure that will ensure that some people will not avail themselves of it.
Another matter emerged largely from the comments made by my noble friend Lady David, and I am grateful to her for her amendment. We wished to know the kind of information that would be placed before the parties at these sessions. The noble and learned Lord the Lord Chancellor has been extremely helpful in sharing his thinking with us. Clearly, all the various kinds of information of which people may wish to avail themselves will be made known to them, including the possibility of seeking legal advice where that is appropriate. I am grateful that the noble and learned Lord shares our view on that.
As for the pilot schemes, I am heartened to learn that many flowers will be encouraged to bloom. Perhaps afterwards we can assess the results. My question as to whether at the moment the noble and learned Lord was thinking of implementing the Bill before the pilot schemes have taken place has been answered. I am relieved to hear that at the moment that is not his thinking. It may be helpful if the noble and learned Lord can tell us the kind of time schedule that he has in mind as regards the schemes. Perhaps he is unable to tell us off the cuff now—
The Lord Chancellor: I am grateful to the noble and learned Lord for giving way. I believe that something in the order of two years is reasonable for testing out the information-giving methods which we wish to use. It will take some time to set up the pilot schemes and, as I said in my letter to the noble Baroness, Lady David, we shall wish to take account of all the views. We have already received some views, but there are so many issues in the Bill that I am sure there will be more detailed views about the form that the information-giving technique should take. I should like to set up the pilot schemes in the light of that advice and information and test them out. We would wish to give the pilot schemes a reasonable chance to work before we try to assess which we should adopt. Therefore, two years seems to me to be a reasonable estimate at the moment. As Members of the Committee know, estimates are apt to vary, but I would not wish to hurry the implementation of the Bill to the prejudice of effective information-giving arrangements. They are at the heart of the Bill as I see it. They are an aspect of the Bill which is not so obviously helpful on first reading. I believe that underlying this is an important consideration and I would be inclined to take time over the matter.
Lord Archer of Sandwell: I am most grateful to the noble and learned Lord for again sharing his thinking with us. Getting the balance right is difficult. I fully understand that it may take a little time to put the pilot schemes in place, then to pursue them and then to evaluate them. As a lawyer—and I am sure that the
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noble and learned Lord will understand my thinking—I am always reluctant to legislate by having a statute in limbo for too long a period of time. However, achieving the right balance may be a matter to which we all need to give our minds.
No doubt in due course my noble friend Lady David will decide whether to move her amendment. Having ascertained from the noble and learned Lord the substance of his thinking, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 11:
Page 2, leave out lines 4 and 5.
The noble Baroness said: Amendment No. 11 is grouped with Amendments Nos. 85, 87, 88, 92 to 95 and 190 to 196. It is a preliminary to the debate on Clause 9. I have tabled it in order that the Committee might spend a little time considering a matter on which the Government disagreed with the Law Commission. It is whether a divorce should be granted before all the arrangements relating to children, finances and property have been made, where the balance should lie between the finalisation of those arrangements and divorce and whether it is appropriate to provide that in most cases those arrangements should be completed with exceptions to the position. In the debate on Second Reading, the Lord Chancellor commented that it was an important and "significant" change from the Law Commission's recommendation. Perhaps I may apologise to the Committee but my speech will consist largely of selected quotations from the Law Commission's report because it seems to me that that is the most helpful basis on which to proceed.
At paragraph 5.56, the Law Commission reported that a number of respondents had argued that divorce should not be granted until the arrangements had actually been made but that the major objection to requiring that in every case was that it played into the hands of an unreasonable, spiteful or malicious spouse who could delay the resolution of issues for a very long time and thus deny the protection of divorce to, usually, the weaker spouse and to the children and create a formidable bargaining chip for the more powerful party.
The Law Commission said:
"A new system must obviously try to balance the injustice which would be caused by allowing an unreasonable, irresponsible or vindictive spouse to delay matters indefinitely against, on the other side, the injustice of allowing a spouse to escape the marriage without making a serious attempt to consider how to discharge responsibilities towards the children and the other spouse".
It added:
"The court should have a discretion to postpone the granting of a divorce or separation but only where this is desirable to safeguard the interests of those who would be prejudiced if the divorce were to go ahead before proper arrangements were made and that it would rarely be in the interests of anybody to prolong the uncertainty".
One must agree with that.
At paragraph 5.60, the Law Commission said that it,
"recognised that ability to apply for postponement could be a powerful weapon in the hands of an obstructive or vindictive party".

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It recommended that where one party applied for postponement on the basis that proper financial arrangements had not been made, the court should direct its mind specifically to whether there were any circumstances making it appropriate for the arrangements to be made before the divorce and separation took place and referred to the conduct of the parties and any prejudice that either party or the children would suffer in the event of delay. The report stated:
"One party should not be allowed to take advantage of his or her deliberate failure to make or contribute to the making of financial arrangements to the prejudice of the other party or children".
That is the nub of it—whether one party, by his or her own action, can use his or her own deliberate failure.
The Government have chosen the other course; namely, to provide for arrangements to be required with the specific exceptions set out in Schedule 1. I well understand the view that it must be best to have everything agreed before the divorce takes place. I hope that in the new arrangements that are being made the mediation process will very frequently achieve that, especially because the new procedures should ensure that financial and other arrangements, particularly regarding the children, should not be used as a bargaining chip. It was not only the view of the Law Commission that the balance should be the other way round. It was also the view of the Solicitors Family Law Association which represents some 3,500 family law practitioners. I appreciate that many amendments in this group have a completely different thrust from my amendment. Nevertheless it may be helpful to spend a little time on the question of that balance as well as on the question of whether the bar should be made more difficult. I beg to move.
6 p.m.
The Lord Chancellor: This is an important group of amendments because it raises a question which is fundamental to the structure of the Bill as regards arrangements for the future being reached before a divorce is granted. I believe that to take that out and follow the Law Commission's recommendation would remove from the Bill one of its major aims and significantly weaken its impact. The Committee can be assured that with the Law Commission's views before the Government, this was a carefully considered decision.
The reason I feel strongly that what the Government have put in the Bill is right is that, first, I think it correct that before parties are granted a divorce they should be required to face up to the responsibilities that they have undertaken in marriage. Those responsibilities are of a fundamental nature, particularly, of course, the responsibility for the care and support of the children. There is also the issue of how their own mutual arrangements are to be conducted after divorce. The first purpose is to make the parties face up to the responsibilities they have already undertaken and to face them in a clear and unequivocal manner.
The second point, which I sought to make in answer to the intervention of the noble Earl, Lord Perth, is that it is important that parties look to the future as
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realistically as they can and compare what the future is likely to hold with what they have at present. For example, if it sinks into a father that he may see his child, whom he loves very dearly, only very rarely and in rather difficult circumstances, he may feel that it is better to try to restore the existing relationship than to go forward into the wilderness.
The third point I wish to make is that an examination of statistics shows that second marriages of people who have been divorced are likely to be more fragile than the first. There may be many reasons for that; at least one is that the responsibilities of the first marriage continue to intrude upon the second. Both as Lord Chancellor and before, I have seen circumstances in which both parties to the second marriage make strong references in relation to discharge of responsibilities of the first marriage. It is extremely important that before an order of divorce is pronounced, the parties should face up to their responsibilities in order to ensure that before they go forward to any other relationship they know as precisely as it is possible to know what is the position. Of course, circumstances in relation to maintenance and so on may have to change.
I understand well that the practitioners of the law in this area may go along with the Law Commission for reasons set out in the Law Commission's report, as the noble Baroness, Lady Hamwee, reminded us. Naturally that weighs with me. However, I consider that, ultimately, the court has power and is very astute in knowing how to handle people who are being deliberately and unnecessarily obstructive.
On the other hand, I believe that it is really fundamental to the existing marriage that, before it is dissolved, the parties should face up to their responsibilities. Of course, that is a change from the existing law so far as concerns property. I also believe that it is a change which will have the effect of supporting the institution of marriage by requiring people to face up to their responsibilities.
We hear from time to time about making divorce easier. Whatever can be said about that, the proposal would not make it easier; indeed, it would make it more realistic and comprehensive. Therefore, I wish to resist amendments to remove it. Obviously we need to look at the provisions of the exceptions, and there are later amendments which will deal with that aspect. However, I have endeavoured to detail the exemptions in order to try to address realistic problems in the area. I believe that the principle is one which is fundamental to the Bill. I hope that Members of the Committee will support me in that point of view.
Lord Meston: Grouped with this amendment are several amendments which arc tabled in my name, including Amendments Nos. 95, 195, 196 and also Amendment No. 85. As Members of the Committee have been told, Clause 2 states that the "requirements" of Clause 9 must be satisfied and Clause 9 itself stipulates that,
"requirements as to the parties' arrangements for the future",
must have been put in place. I give way to the noble and learned Lord.
Lord Simon of Glaisdale: I am sorry to interrupt the noble Lord, but I am not quite clear as to the amendment to which he is speaking. I realise that it is my fault but, nevertheless, I should like clarification.
Lord Meston: I am sorry if I did not make it clear. I am adhering to the groupings list, which, as I read it, has grouped Amendment Nos. 85, 95, 195 and 196, among others, with the current amendment. I hope that I am right in that respect.
Lord Simon of Glaisdale: I am much obliged.
Baroness Trumpington: I believe the noble Lord has left out certain amendments. Is he aware of that fact?
Lord Meston: Yes. I hasten to say that I did use the words "among others" to cover that fact. I am confining myself to the amendments which concern me directly.
The principle which the noble and learned Lord just stated is one with which I would not argue. In particular, the noble and learned Lord struck a chord with me in suggesting that the present system has a fault in allowing the parties to carry into their second marriage too much unfinished business from the recently dissolved first marriage.
The first point that I would like to make is merely a drafting matter. Clause 9(4) states baldly:
"Schedule 1 supplements the provisions of this section".
Thereafter, Clause 9(5) refers one to the three existing exemptions which are set out in the first schedule. As a matter of drafting, I wonder whether it might be easier to read if subsections (4) and (5) were merged and, better still, if the exemptions presently in the schedule were set out more clearly in the main body of the clause. However, that is a peripheral point.
I turn now to my main point, which relates to Amendments Nos. 95, 195 and 196. In the schedule as presently drafted, there are three specific exemptions from the requirement that financial arrangements should have been finalised before a divorce or separation order can be made. They deal with situations where the other spouse is absent or is so awkward or so afflicted that it is impossible to make arrangements. The amendments which I wish to introduce into the schedule would provide a fourth and fifth exemption.
In Amendment No. 195, I seek to insert a fourth exemption which would provide that the circumstances,
"are that the children of the family, or any of them, are the subject of care proceedings and it is in their interests for a divorce order to be made notwithstanding that the parties are unable to make arrangements for them".
That is designed to deal with the situation where the children mentioned in the original statement will become the subject of care proceedings during the following year, so that the parents are unable to make arrangements for them. It may be very much in the interests of those children for there to be a divorce before the care proceedings are resolved as it may facilitate their return to one or other of the parents.
Amendment No. 196 suggests another exemption in the following terms. The court must he satisfied that,
"the requirements of Section 41 … have been satisfied; [that]
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"both parties have considered and reflected on their financial arrangement and concluded that it is in their interests or that of a child of the family not to determine their financial affairs finally until some future date; and,
that it is reasonable for the parties",
to have reached that conclusion. That is designed for parties whose financial affairs cannot he fully or finally determined until after divorce at some possibly uncertain date.
There are those who have good reason to wait because important imponderables have not been clarified. For example, the outcome of a financial settlement can, quite often, depend on an expected inheritance, the attitude of a pension fund or even—dare I say it in these days?—the crystallisation of substantial Lloyd's losses. It is my suggestion that that sort of provision should enable parties to proceed to a divorce if they can satisfy the court that there is a good reason to wait.
Amendment No. 85 is designed with a different purpose in mind. As the Bill stands, the requirements in Clause 9(2) involve the possibility that "one of the parties" may declare to the court that he or she has "no significant assets" and that,
"the party making the declaration does not intend to make an application for financial provision and believes that the other party does not intend to; and [that]
there are therefore no financial arrangements to be made".
The amendment seeks to question whether it is appropriate to proceed on the unilateral declaration of one party. I suggest that the declaration should be something that is made by each of the parties to the marriage.
As drafted, the provision that a divorce may be granted on the declaration of one party that there are "no significant assets", that he does not intend to make an application for financial provision and that he believes that the other party does not, is a potential gift to the unscrupulous. At the very least, the court should have a duty to investigate the bare assertion by one party that there are no significant assets and that he believes that the other party does not intend to make a claim. Otherwise, the unscrupulous husband could simply tell the court that he thinks that there are no assets of any significance and that he does not believe that his wife (whom he may have bamboozled in some way) intends to make a claim. He can then proceed to obtain a divorce. Surely the declaration in Clause 9 is of such importance in these sorts of cases that it should be a declaration of each of the parties to that effect.
I am conscious of the fact that the noble and learned Lord the Lord Chancellor has his own amendment, Amendment No. 87, which includes a provision that,
"no objection has been notified to the court by the other party."
I suggest with respect that even that is rather too weak to prevent misuse of Clause 9 by the unscrupulous.
Baroness Young: The grouping contains at least three amendments to which my name is attached. It may be helpful to address them now. However, if my noble and learned friend would rather reply to the amendment of the noble Lord, Lord Meston, first, I am happy to speak later. I understand he is happy for me to continue.

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I believe that Amendment No. 92 should not be included in this group of amendments. I would prefer to speak to it separately. It may he helpful, however, if I speak to Amendments Nos. 93 and 190.
Although the amendments are grouped together, my amendments have quite the opposite effect of those proposed by the noble Lord, Lord Meston, which widen the provisions whereby a divorce can he granted against the wishes of one of the parties. As this seems to me in principle undesirable, my amendments operate in exactly the opposite direction. I may have misunderstood the noble Lord's proposals but as far as I can see he is not only extending the scope of Schedule I but adding another provision under that schedule which makes a further exemption regarding children who are—I believe he said this—subject to care proceedings. That simply widens the number of exemptions in which the Bill gives power to the court to make a divorce order at the request of one party even if no financial agreement has been reached at the end of the one-year waiting period.
I am unhappy about Schedule 1. The purpose of Amendment No. 93 is to prevent the court making a divorce order under this provision in the case of hardship as defined in Clause 10. A further amendment in my name, Amendment No. 115, seeks to insert a new subsection which substantially widens the definition of hardship. Cardinal Hume contributed a remarkable article to The Tablet last week. The cardinal made a point about hardship and stated that safeguards to prevent it should be strengthened. I have amendments down to that part of the Bill. However, in the part of the Bill we are now discussing I feel it important to recognise that the Bill contains powers for the courts to impose a divorce against the wishes of one party to the marriage. I recognise, of course, that there can be vexatious and difficult people. Sometimes people who are being divorced against their will and who have the misfortune still to be in love with their partner do become unreasonable and do not want the divorce to happen. It seems to me that their needs might at least be considered. We need to think of that kind of case.
As I understand the Bill—I am not a lawyer and I may not be correct—there are no effective powers for the court to bar a divorce. I believe that we shall discuss the hardship question later. I shall be interested to hear what my noble and learned friend has to say. It seems to me there are various dangers. It will be possible for one party to be divorced against the wishes of the other where the discussion on financial matters can effectively be guillotined. That could lead to hasty and unfair arrangements and could allow arrangements to be made in the absence of one spouse. There are further difficulties under Schedule 2 which, on my reading of it, is in parts loosely worded. For example, paragraph 23B(1)(b) states:
"Where the court is not satisfied that there are special circumstances making it appropriate for the order to take effect at an earlier date".
The term "special circumstances" seems rather loose. I do not know what it means; perhaps we shall have that explained to us as the Bill proceeds. As I indicated,
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these are not amendments which I wish to press today but they open up a whole area where we need more clarification and debate as regards what we are proposing under the Bill for a divorce where one party to it is unwilling.
Lord Meston: I hesitate to interrupt but the noble Baroness is perhaps wrong on one, or possibly two, points. However, we are not as far apart as she may have suggested. The exemption I seek to introduce in Amendment No. 196 would only operate if both parties decided that there was a good reason to proceed to a divorce without having finalised their financial arrangements. In other words, it is an agreement of both parties which does not, and indeed could not, depend upon a unilateral action. Amendment No. 85 is designed to remove the possibility of one party proceeding by a unilateral declaration that there are no significant assets and persuading the court to provide a divorce on that basis. It requires that both parties are agreed that that is the situation, so that there is no abuse of the provision unilaterally.
The Lord Chancellor: I shall deal with the amendments of the noble Lord, Lord Meston, first. I accept the view that it is necessary for the view of the other party to be taken into account in connection with the suggestion that there are no assets and the like. The noble Lord does not care for my amendment. I am perfectly content to review that in the light of his amendment because I think we are agreed. As regards the amendments which introduce new exemptions, I have more difficulty.
As regards the new fourth exemption, I believe that the court, when considering whether the requirements of Section 41 of the 1973 Act have been met, will consider if the child is in care, and, if so, will not bar a divorce simply for that reason, assuming that no order or no further order is needed under the Children Act. Therefore I do not think that another exemption is required because that is a situation with which the court could deal.
The new fifth exemption deals with the possibility of change. I believe I picked up the examples of expected inheritance and possibly the opposite of an expected inheritance—the quantification of a particular type of loss. I should have thought that it would not necessarily he wise to postpone the arrangements completely on that basis. It should be possible to deal with the arrangements. If an expected inheritance is to be taken into account, who knows how long that might affect the situation? I find it difficult to accept that we should regard that as a reason for not making arrangements so far as they can he made. There may be aspects of the arrangements which cannot be fully finalised, but that is taken care of. I do not believe that it is satisfactory to say that that should be an exemption from making the arrangements as a precondition of obtaining a divorce.
As regards the amendments of my noble friend Lady Young, I am concerned that the arrangements should be as tight as possible. I believe that the arrangements contained in the schedule are as tight as is reasonable. Amendment No. 92 seems to go in the opposite direction, and I would find it difficult to accept it.

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My noble friend explained Amendment No. 93 as a matter which will arise in connection with the hardship bar. I entirely agree with her that the hardship bar is a very important aspect of the proposals. Obviously the precise terms in which it is expressed require consideration. My noble friend referred to Cardinal Hume's article in The Tablet, which was also published in an edited version in The Times on Saturday. I found it extremely helpful. It focuses on the hardship bar as a matter which requires further consideration. I believe that that is right, particularly in relation to children, but there are also other aspects which are brought forward in later amendments.
I believe that the arrangements requiring people to face up to their responsibilities are as tight as they reasonably can be. I believe that they are correct in principle. I believe that my noble friend agrees that there should be a requirement for those responsibilities to be faced before a divorce is granted. So far I have not been persuaded that we need to enlarge the exemptions, which are dictated only by the practicalities of the situation.
6.30 p.m.
Baroness Young: Before my noble and learned friend sits down, perhaps I may ask him a question for clarification. My concern about this particular group of amendments and this part of the Bill is how far the court can go against the wishes of the spouse who does not wish to have a divorce. If I understand correctly what my noble and learned friend said, he feels that he cannot go further than what he has already said. However, there could be circumstances in which it could be unjust for someone to face a divorce before they are convinced about the financial and other circumstances being settled necessarily within the year.
The Lord Chancellor: It is a misunderstanding of the provisions of the Bill to suggest that the settlement of the financial matters could in any way reduce the period for consideration and reflection. Under the terms of the Bill, the year is a minimum. The need to settle financial matters may well extend that period. That is why I say that a year is the minimum. The need to settle financial matters and other matters, including most importantly of all the arrangements for the children, is a requirement which may well mean that the divorce is postponed for longer than a year, depending on how the arrangements are made. Therefore, the mere fact that a settlement has taken place, if it takes place, in the sense of agreeing what the future should hold, within a year does not mean that the divorce will be granted within a year.
I am not sure whether I have answered my noble friend's question, but I hope that I have.
Baroness Young: I am grateful to my noble and learned friend the Lord Chancellor. I shall certainly read carefully in Hansard what he said because this is an important point. He now says that the divorce cannot he granted in certain circumstances until after a year or until agreed arrangements are made in respect of finance and the children.
We shall return to this matter when we consider the hardship bar, which is relevant to the amendment. In the meantime, I shall not move my amendment.
Baroness Hamwee: I realise that with this somewhat awkward grouping of amendments in the absence of my noble friend Lord Russell I should perhaps have referred to his amendment—Amendment No. 1 93—which seeks further to extend one of the exemptions. However, perhaps that is a matter to which we can return at another stage, although the noble and learned Lord may wish to comment briefly.
In Amendment No. 193 my noble friend seeks to add to the second exemption the words:
"where there is continuing violence, to the applicant, other party or child of the family".
The noble and learned Lord the Lord Chancellor may say that the reference to injury in paragraph 2(c)(i) extends to violence. It may be helpful if he cares to comment on that point now.
The Lord Chancellor: Briefly, the circumstances between the parties for interim arrangements and so on are matters that will have to be dealt with under, for example, the provisions in Part III relating to domestic violence and the family home. I do not believe that it is wise to allow the facing up to responsibility to be damaged further by considerations of that kind.
Baroness Hamwee: I am grateful to the noble and learned Lord. It may be helpful to review this matter together with the hardship bar and the comments that may be made in that context, even though they are different issues, as the noble Baroness, Lady Young, suggested, although the noble Baroness and I have rather different perspectives on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
Lord Meston Lord Meston moved Amendment No. 13:
Page 2, line 8, at end insert ("or before the second anniversary of the marriage").
The noble Lord said: Perhaps I may speak briefly to Amendment No. 13 and also to Amendment No. 53, which proposes the omission of Clause 7(4). I hasten to say that I am sorry that Amendment No. 53 may have been misunderstood. What I am about to say should not in any way inhibit the noble Baroness, Lady Young, and the noble Lord, Lord Jakobovits, who support Amendment No. 53, from taking an entirely different point of view. They have their own reasons for seeking the omission of Clause 7(4).
What I propose is purely a drafting simplification. Clause 2(3)(c) refers to Clause 7(4), which re-enacts the provision that proceedings for a divorce may not he commenced within a year of the marriage. I do not propose to debate whether that provision has any value. It is the existing law and it is preserved by this Bill. In the context of this Bill there might be something to be said for an earlier intervention if a marriage, sadly, is in difficulties in its first year. However, if the bar is to remain I suggest that it may he clearer to state it in Clause 2(3), as proposed in Amendment No. 13, by simply referring to,
"the second anniversary of the marriage".
I emphasise that it is a drafting matter. I hope that it is an endeavour to add clarification to the Bill. I beg to move.
Lord Simon of Glaisdale: I believe that Amendments Nos. 14 and 16 are grouped with this amendment. Is that not right?
Noble Lords: Yes.
Lord Simon of Glaisdale: I shall deal, first, with Amendment No. 16 because it takes up the point with which the noble Lord has dealt. Amendment No. 16 arises out of some confusion which I am sure was my fault. It arose on an earlier amendment, I believe Amendment No. 2. My noble and learned friend dealt with the timings and resumed the point later. I wanted to be quite sure that I understood. It is for that reason that my amendment proposes to leave out,
"until after that anniversary".
Perhaps I may put this situation to my noble and learned friend: there is some very great fault within the first few months of the marriage. At an earlier stage I gave as an example the communication of a venereal disease by, say, the husband to the wife. The wife is clearly entitled to withdraw from cohabitation. As I understood my noble and learned friend's second answer, let us say that she withdraws within a month and at the end of the month she is entitled to move for a separation order. The first question, therefore, is: what about her maintenance during the currency of consideration of her application for a separation order? That cannot take effect—my noble and learned friend will correct me if I am wrong—until after a year. In other words, that is 13 months after the marriage in the situation that I postulated. How is the wife to be maintained during that time? When the ecclesiastical courts had jurisdiction in those circumstances they awarded alimony pending suit. That was subsequently taken over by the civil courts. Is that provision still available? If so, will my noble and learned friend remind me of it?
At the end of that 13 months, or perhaps at the end of 12 months, the wife can move for a divorce order. Is there another year after she moves for a divorce order? If so, does the period come to an end 24 months or 25 months after the marriage? Again, I ask about her maintenance during that period. That is the point on which I wish to have my mind clear.
Amendment No. 14 leaves out subsection (3) of Clause 2 which states:
"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".
In the example that I outlined as regards the later amendment, the wife is applying for both orders—first, for a separation order, and then a divorce order. However, it might be the husband, at the end of the 12 month period after the marriage, who applies for a divorce order. If that happens, the court is enjoined to give priority to his application for a divorce order.
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I draw attention to that because it is, again, an aspect of the predilection of this Bill towards divorce rather than separation. We saw it earlier as regards an amendment by the noble Lord, Lord Meston. We shall see it later in the Motion that Clause 18 shall not stand part to be moved by the noble and learned Lord, Lord Archer, and myself. Why is there this predilection for divorce rather than separation?
I do not know whether I should formally move those two amendments. The noble Baroness stays silent.
6.45 p.m.
Baroness Trumpington: No, never silent. The noble and learned Lord is speaking to the first amendment which has been moved. The other amendments can be spoken to but not moved until it is their turn. That is my understanding.
Lord Simon of Glaisdale: I am much obliged to the noble Baroness. It is quite clear.
The Lord Chancellor: My understanding is that Amendments Nos. 13 and 53 are drafting amendments intended to simplify the provisions of the Bill. However, they would allow a statement of marital breakdown made in the first year of the marriage to be effective for the purpose of eventually applying for a divorce order after the second anniversary of the marriage. I believe that to be the effect of the amendments. If I have understood them correctly, that is not the policy on which the Bill is drafted.
Under the current provisions of the Bill, a statement made in the first year is effective only for a separation order which can then be converted into a divorce order after the second anniversary of the marriage. While the actual period of time of obtaining a divorce in both those circumstances is the same, the reason behind the policy was to maintain the one year ban under the current system on petitioning for divorce. In other words, couples would not be able to initiate proceedings with a view to divorce in the first year of their marriage.
Amendment No. 14 is in the nature of a probing amendment, but it is perhaps worth while my indicating how I see it. Its effect would be to leave the court to decide with which application it should proceed in cases where it had applications before it for both divorce and separation orders in respect of the same marriage.
In order to keep the parties' options open for as long as possible, and in order not to commit parties to applying for a dissolution of the marriage at the outset of the period of reflection and consideration, it is intended that only at the end of the period will either party, or both parties jointly, need to choose for which remedy they need to apply.
It is also intended that, with the exception of the hardship bar, the same conditions as apply to divorce should apply to separation orders. Marriage breakdown has the same serious consequences for the parties and their children whether the parties decide to apply to the court for divorce or separation orders; so the process which leads to a court order being made in relation to

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the marriage, and therefore to important orders relating to children, should be as demanding as that for a divorce.
Not many parties use judicial separation under the present system. However, it is right that a separation order should be available as an alternative to divorce, particularly for those who have, as I said on the last occasion when this point was raised, a religious or conscientious objection to divorce. The reality is, however, that generally judicial separation cases involve irretrievable breakdown; and in practice, when dealing with children and financial matters, the courts treat judicial separation as if it represented a final breakdown.
Adopting the same ground for judicial separation as for divorce would not act as a deterrent to reconciliation. Reconciliation can still occur during the 12-month period for reflection and consideration, just as it does under the present system, and indeed at any time after a separation order is made.
Where, however, at the end of the period one party applies for a divorce and the other spouse applies for a separation order, the court should make a divorce order, provided that the marriage has broken down irretrievably and other requirements relating to attendance at information sessions and decisions about future arrangements have been met, unless an order preventing divorce has been made and subject to the statement not having been made in the first year of marriage. So the important difference is the availability of the hardship bar and the order preventing divorce from being made.
Once a marriage has irretrievably broken down and parties have decided on arrangements for a life apart, there is no benefit for either party or their children in keeping the empty shell of a marriage in existence, unless of course the dissolution of that marriage would result in grave financial or other hardship for the spouse who wants a separation rather than a divorce.
Amendment No. 16 would have the effect of leaving the court to decide whether it should proceed with an application before it in respect of divorce or separation. As I said, in order to keep the parties' options open, we have provided for this.
Financial provisions during the period between the making of a statement and obtaining a separation order can include interim and final periodical payment orders, so that in the case that my noble and learned friend postulated there is the possibility of the court making an order for interim periodical payments during the currency of the litigation. That could be made into a final order for periodical payments—
Lord Simon of Glaisdale: I am very much obliged to my noble and learned friend for giving way. Might not the provision in this part necessitate the investigation of hardship? Let us suppose that the wife says, "I am withdrawing because I have had a venereal disease communicated to me", and the husband says, "That's not true. My wife is withdrawing purely because she has decided she does not like the marriage".
The Lord Chancellor: The basis on which an interim periodical payment should be made would be a
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consideration of the whole circumstances and whether or not in the circumstances the court thought it right that such an order should be made—
Lord Simon of Glaisdale: I think my noble and learned friend's answer is yes, is it not?
The Lord Chancellor: I am always a little cautious in case I have not fully understood my noble and learned friend's question. I have never suggested that there is any limitation on the particular facts that would be required in order to justify an order for interim periodical payment.
Regarding the rest of his question, as I understand it, if the application was made within the first year, a month after the marriage, the divorce order could not be made until 24 months after the marriage. But during the whole of that time the court would have the power to make interim orders to deal with the justice of the situation.
I heard my noble and learned friend refer to, as it were, a predisposition in favour of divorce over separation. The explanation is that that has to be the structure, subject to the hardship bar. 'The question of hardship might arise in circumstances other than in an application for an order based on the bar, and I am not conscious of ever having said anything to the contrary. But it is quite clear that interim orders would require to be justified on the same basis substantially as exists at present.
Lord Meston: Amendment No. 13 was purely a drafting amendment, intended to simplify the provisions of the Bill to the ordinary reader. The noble and learned Lord the Lord Chancellor suggested that it may have gone too far in producing an effect, which certainly I did not intend, of facilitating a statement with a view to a divorce being made within the first year of the marriage. It is a matter that I wish to examine a little more closely and perhaps return to at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Clause 2 agreed to.
Baroness Trumpington: I beg to move that the House be now resumed. I suggest that the Committee stage begin again at two minutes before 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Education (Northern Ireland) Order 1995
6.59 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield)The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield) rose to move, That the draft order laid before the House on 21st November be approved.
The noble Baroness said: My Lords, this order has been the subject of consultation with a range of educational interests in Northern Ireland. All of their

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comments were carefully considered and a number of changes have been made to the draft order as a result of their constructive and largely supportive responses.
The order introduces new provisions relating to the education of children with special educational needs; empowers boards of governors to decide whether pupils should transfer to secondary education a year early or later than normal; redefines the four key stages of the curriculum; and fulfils the Citizen's Charter commitment to provide lay involvement in school inspection teams. It also makes a number of amendments to existing legislation relating to administrative procedures. I believe that it will be helpful to the House if I say a few words abut the main provisions of the order.
The largest single element in the order consists of provisions relating to special educational needs which mirror those introduced in England and Wales by the Education Act 1993. Specifically, the order will introduce new rights of appeal for parents and will establish an independent tribunal to determine all appeals; it will enable parents of children with statements of special educational need to take the initiative and express a preference for a particular grant-aided school; it will require the Northern Ireland education and library boards and schools to draw up special educational needs policies; it will provide powers for a code of practice to be introduced and for the time taken by boards to assess and statement children to be regulated; and it will restate the duty to integrate statemented pupils with their peers in mainstream schools, so long as that is consistent with parental wishes, with the needs of all the children concerned and with the efficient use of resources.
A number of provisions are not given direct effect by the order itself but will be the subject of further full public consultation before being introduced in detailed form. Among these is a code of practice which will establish workable guidelines for schools, boards and others in relation to the identification of children with special needs, the process of assessment, the making of provisions to meet their needs and the procedures for making statements. Regulations will also be drawn up under this order for establishing rules and procedures for the new appeal tribunal.
The appeal tribunal will determine appeals by parents against decisions by education and library boards and will assume the role at present exercised by the Department of Education. This will ensure that appeals are heard independently of government. The tribunal will have a legally qualified chairman sitting with two other people selected from a panel of lay members, and its decisions will be binding on all parties.
The remainder of the order contains a number of miscellaneous provisions, the most significant of which are new arrangements for children transferring to secondary education a year early or a year later than the normal age for transfer. Each year a number of children are considered to have the ability to benefit from early transfer to secondary education, while others benefit by remaining an extra year in primary school. Currently the Department of Education is required to give a direction
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in each case. The order provides that a child may transfer to secondary education a year early or a year later provided the board of governors of the school consider it to be in the child's best interests and the parent agrees. Parents will have a right of appeal to an independent tribunal if they believe that the board of governors did not reasonably comply with the department's guidance.
Articles 40 and 41 provide for a limited incorporation of schools and colleges of further education respectively. These articles will ensure that members of boards of governors will not be held personally liable for actions arising from the responsibilities of the boards.
This order implements the Government's commitment to develop the lay principle in all inspectorates, including the Department of Education Schools Inspectorate. This will bring Northern Ireland into line with England and Wales. The primary intention is to enable persons outside the education establishment to assist, on a voluntary basis, the department's inspectorate in the inspection of schools. Lay members will not be involved in matters of professional teaching. Rather they will bring a fresh but common-sense approach to the inspection, for example, of a school's organisation and financial and personnel management.
These are the main provisions of the order. We believe that they will bring significant improvement to the education of children in Northern Ireland, in particular those with special educational needs. It is a very worthwhile order. I beg to move.
Moved, That the draft order laid before the House on 21st November be approved—(Baroness Denton of Wakefield.)
Lord Williams of Mostyn: My Lords, yet again I am most grateful for the courtesy and clarity with which the Minister introduced this order. Once again, unfortunately, one finds that the people of Northern Ireland are dealt with after a delay which many may find regrettable when one thinks that the Education Act 1993 is, as the Minister said, the essential base model for this order.
One welcomes the general thrust of the order, in particular in respect of the provision for children with special educational needs. I am happy to pay tribute to teachers and head teachers who have to deal with such children, whose education is often an extremely delicate art. Is the Minister able to indicate the kind of level of financial resource that will be available for such children? In particular can she say whether or not on an annual basis there will he careful auditing to establish whether the funds intended to he spent on children with special educational needs have been put to their intended object?
Perhaps I may ask the Minister to cast her eye over Article 3(3) of the order on page 6. I am happy to say how grateful we are that:
"A child is not to be taken as having a learning difficulty solely because the language … in which he is … taught is different from a language … spoken in his home".

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Had it not been for that clear indication of government policy, the formidable Lord, the noble Lord, Lord Cledwyn, would be here and the revered and respected Lord, the noble Lord, Lord Prys-Davies, would be here, as well as me, to complain bitterly about the suggestion that someone who came from a Welsh-speaking home was a child who had special educational needs rather than one who has infinite educational advantage and benefit over the monoglots we know.
Perhaps, a little more seriously, I may suggest that Articles 17 and 22 need quite careful attention. It is good that there is a tribunal (Article 17, at page 17) which is available to a child's parent. Article 22 sets out essentially the method of selection and the composition of the tribunal of appeal. As the Minister has said, subject to a case stated to the High Court, the decisions will be binding on all.
I have noticed increasingly lately in Northern Ireland, across a wide spectrum of view, a very great feeling, which is sometimes a feeling of anger, about the inexorable growth of quangos and quasi-judicial tribunals. This will be yet another. I ask the Minister whether she can give an undertaking—if not, I can well understand—or at least transmit—the feeling that when the personnel to be appointed to such tribunals by the noble and learned Lord the Lord Chancellor and his department are being considered, there ought to be the minimum requirement of consultation with the president of the Law Society of Northern Ireland and the chairman of the Bar, Mr. Eugene Grant. It seems to many people that there is legitimate concern that appointments are being made to public bodies of great importance and power (and consequence in this particular context) without a feeling that those who might have some useful input have been fully consulted.
We know that there are substantial delays in England and Wales in the operation of similar tribunals. Can the Minister tell us that she is satisfied that there will be enough personnel to avoid delays? After all, a delay of six months, nine months or a year in the context of a child's education is a very significant delay indeed. Once those months have passed, they can never be recovered, in the sense that the child's education can be restored fully to what it ought to have been.
My only other question relates to Article 32 and corporal punishment. Article 32 (page 32) still entitles a member of staff or someone on behalf of a member of staff to assault a child in his care, though such punishment cannot be justified if it is inhuman or degrading. Whether it is inhuman or degrading depends on the circumstances of the case, including various different criteria. Why is it, in 1996, that a child who goes to a state school is not allowed to be hit, assaulted or beaten, even if the parents wish it, whereas a child whose parents pay for private education is likely to be hit, assaulted or beaten? Is it not time the Government attended to such recent reports as the Gulbenkian Report, which seriously questioned whether a child should any longer be struck simply on the artificial distinction of whether or not the parents have paid for the child to be hit?
I have no further questions. I believe that the last time we met I wished the Minister a happy Christmas. I wish her a happy new year and God bless Tiny Tim.
Lord Holme of Cheltenham: My Lords, among the tiny band of us who pursue the affairs of Northern Ireland in this House there is always a welcome level of mutual courtesy which the noble Lord, Lord Williams, reinforces each time he stands up. Perhaps I can do my hit by thanking the noble Baroness for the way in which she presented the order. She is busy, but always has time for us and is clear and helpful in her presentation.
An order of such importance underlines the need for progress on the political track of the peace process. It is not acceptable that matters of this importance to the people of Northern Ireland should be dealt with by a handful of Members in this House. How much better it would be if Northern Ireland legislators debated key Northern Ireland proposals like this in a proper devolved body of their own. In that context, though it is a long way removed from the order, perhaps I can take the opportunity to wish good fortune to Senator Mitchell and his colleagues in the last days of their deliberations. A lot depends on their progress and we look forward to their report.
I welcome the wide-ranging consultation done by the Government. It has been extremely useful. On the whole, it means that the order is a sound order, though I have several anxieties and points that should like to raise with the Minister.
First, in relation to Articles 36 and 37, the noble Baroness knows my enthusiasm for the cause of integrated education in Northern Ireland. There is steady progress. There are now 28 integrated schools in Northern Ireland, including nine secondary schools. However, only 2 per cent. of pupils are taught in integrated schools; but there is growth of two or three schools a year. I believe I am right in saying that currently three schools, Rathenran Primary in Antrim, the Hilden Primary in Lisburn and the Kircubbin Secondary in County Down, are awaiting ministerial approval. I hope that that comes through. The order allows boards of governors to have only one positive resolution, rather than two, before the issue of integrated status can be put to the parents in a ballot, which makes it slightly easier for a school to achieve integrated status.
I take this opportunity of pressing the noble Baroness on the question of funding for integrated schools. The transitional costs of becoming integrated, of increasing the number of governors to make them more representative in providing a balanced school make-up, and so forth, are not always minor matters and need to be considered. I hope that the helpful change in Articles 36 and 37 can be taken as a development whereby the Government are moving from being neutral towards the schools to being actively in favour of them. However, I suspect that is not the case. The noble Baroness may like to comment on that in her reply.
The most important part of the order is the question of special needs, about which the noble Lord, Lord Williams, spoke. He is right to pay tribute to those involved in special educational needs. Special needs require special dedication from both teachers and parents. I welcome the recognition in Article 8 that it is better for pupils with special educational needs to be educated with other pupils rather than to he set aside

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or segregated. However, like the noble Lord, Lord Williams, I am somewhat suspicious of the funding for special needs education.
Article 8(2)(c) says that special needs funding must be compatible with the efficient use of resources. I am certainly in favour of efficiency, but that sounds suspiciously like a Treasury insert into the Bill. I hope that in supporting the order we are not supporting staff cuts where fewer teachers teach more pupils or fewer books serve more students. I agree with the noble Lord, Lord Williams, that we need regular auditing and review to be sure where the money is spent. If there is any doubt about that, we should consider the ring-fencing of special needs education which, from these Benches, we support in England and Wales.
We welcome the special needs tribunals and particularly the assurance from the Minister of State that it will be conducted "with the minimum formality" and that legal aid will be available. Quangos have a habit of persisting; it is easier to set them up than it is to get rid of them. The Minister went on to say that the tribunals would establish a number of precedents and then, at some point in the future, will be used far less. We need to keep such a system under review. If the tribunals become redundant we shall need to think again. If they establish a set of precedents we shall need to consider those as well. I suggest that we review the working of the tribunals after two years.
Perhaps I can also press the Minister on the question of special needs and the issue of consultation with parents. Article 5(2) gives the Department of Education in Northern Ireland discretionary power to consult such persons as it thinks relevant. I hope that the Minister can reassure us that that includes, crucially, parents.
I agree with everything said by the noble Lord, Lord Williams, in relation to corporal punishment. Throughout Europe the practice of corporal punishment in schools is rightly seen as brutal and medieval. Can we not take the violence out of education as we encourage others to take the violence out of politics?
Finally, on the question of the history syllabus, Schedule 3 sets out the need for history to be taught at key stages 2 and 3. What progress, if any, is being made towards at least an element of common history syllabus for Northern Ireland? It must be true that until the two communities in Northern Ireland—the two main communities—can begin to accept each other's history and therefore a history they share, the prospects for a lasting settlement are not good. That mutual understanding—reciprocal acceptance of each other's history—should start at school. When the noble Baroness replies perhaps she can say whether she sees that as a desirable aim and what the Government arc doing to promote it.
With the exception of those questions, from these Benches we have pleasure in supporting the order.
7.15 p.m.
Baroness Denton of Wakefield: My Lords, I thank noble Lords for their input and, as has been rightly said, their courtesy. Of one thing I can be certain: I have
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always spent considerable time pointing out to people, in relation to Clause 4 and opportunities for women, that it is always the quality that counts and not the quantity. The same can be said about our Northern Ireland representation in the House of Lords.
I am constantly delighted by the commitment and the concern shown for the Province from the Benches opposite. That is something that is also respected and welcomed by Members from Northern Ireland. We seem to look at the overall as well as the individual legislation under review. Of course, we would like to see movement towards an opportunity for the people of Northern Ireland to be involved in the legislation to a greater degree.
I thank the noble Lord, Lord Holme, for the good wishes he sends to Senator Mitchell's commission. Anything we hope to achieve in Northern Ireland will be better achieved in an absolutely solid, peaceful atmosphere. In working towards a political solution, we bring benefit to the community as a whole. I shall take back to my honourable friend with responsibility for education those items on which noble Lords have expressed concern and where they would like to see further activity. I am sure that their views will he taken into account as we work forward.
Before I go into detail, perhaps I may say that one of the greatest treasures in Northern Ireland is the high level of education, which has benefited many. But at the same time as it benefits many, we have to be certain that we protect the individual who has less advantage. In bringing forward legislation on special needs, we are doing that.
The noble Lord, Lord Williams, commented on the delay in bringing forward the provisions of the Education Act 1993. It is important that in Northern Ireland we have full and proper consultation. We have had that. It was extensive. I should not like to bring before the House Northern Ireland legislation on which we had not consulted. The noble Lord asked us to ensure that we consulted on the appointment of people to the tribunals. It is important that we listen. Changes have already been announced in appointments to public bodies in Northern Ireland. We have the advantage that it is easier in a Province of 1.6 million to talk to people quickly and to meet them quickly. The appointment of special educational needs tribunal chairmen and members will follow consultation with the Lord Chancellor and the chairman of the Bar. I shall pass on the noble Lord's comments to my honourable friend the Member for Devizes in another place.
The noble Lord referred to resources for special educational needs and asked how they are administered. Special education has recently substantially benefited from additional recurrent allocations of £2 million in 1994–95 and £3 million in 1995–96, plus additional teaching staff to the tune of £1.6 million. Among other things, that has funded a significant number of additional educational psychologists' posts, which is where it is estimated the greatest pressures currently lie. We increasingly have the benefit in Northern Ireland that people who would not have contemplated coming to the Province to take up a professional post are now

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able to recognise the quality of life. That also helps with the ability to fill posts. In the LMS funding arrangements allowance is made for pupils with special educational needs. That means that schools receive additional funding for such pupils. Under the financial delegation arrangements it is a matter for each school to decide how it makes use of these funds. The schools arc accountable to parents at the annual parents' meeting. It is important that parents take responsibility. We encourage that. The provision made for pupils with special educational needs is looked at by the education and training inspectorate in the regular conduct of school inspections. Again I would stress that there is the benefit of closeness which allows us to be well aware of what is happening.
The education allowance under the public expenditure survey was good. The settlement for education gives an uplift of 3.5 per cent. and is still in real terms a plus of 0.7 per cent. Resources for schools are up almost 2 per cent. in real terms. The sooner we can take the costs of fighting terrorism totally off the agenda the more we can spend on the important matters of education, health and training. In the education and training areas we are already spending funds that were released from security forces' overtime. We should like to see it possible to take much more out of the security area to invest in the future of our people.
The noble Lord, Lord Williams, asked about the volume of appeals we would expect in Northern Ireland. The record is extremely low compared with the number of appeals in England and Wales. For example, last year there were only four such appeals and the maximum number in any recent year has been 15. That compares with more than 1,000 appeals registered during the first year of operation of the tribunal for England and Wales. Our most generous estimate is that the appeal number in Northern Ireland may increase to some 50 a year under the new legislation because it rightly draws attention to rights which are available to parents. We believe that no problems are likely to arise in funding the tribunal at this level of operation. I assure the noble Lord that it is something of which we have been conscious. In bringing forward legislation later we can learn from practice here. We will be well able to protect the need to deal with them.
The noble Lord, Lord Holme, asked about individual appeals and precedents. The essential purpose of the special educational needs tribunal is to determine individual appeals made by parents, not to establish precedents for use by boards. However, boards will take account of the tribunal's decisions in so far as these may affect and inform future decisions in similar cases. I shall ensure that my honourable friend takes note of the noble Lord's remarks. The consultation process required by Article 5(2) of the order will include all bodies, groups and individuals with an interest in special educational needs in Northern Ireland. We would find it difficult not to take those needs into account.
Lord Holme of Cheltenham: My Lords, I thank the noble Baroness for giving way. The reassurance I was specifically seeking was that the Government intended under Article 5(2) to consult parents.
Baroness Denton of Wakefield: My Lords, I can safely say that this Government have a commitment to consult and inform parents on all our education legislation. However, I shall come back to the noble Lord in writing on this matter in order to give him absolute reassurance.
Both noble Lords expressed concern on the issue of corporal punishment. The purpose of the article in this order is to bring Northern Ireland into line with the relevant legislation in Great Britain. The article provides that corporal punishment in an independent school should not contravene Article 3 of the European Convention on Human Rights which outlawed treatment or punishment which is inhuman or degrading. It would not he appropriate to go further than that in terms of actually prohibiting corporal punishment at independent schools in Northern Ireland, where it is a matter of parental choice that pupils should attend such schools. The independent schools sector is extremely small. There are only about 20 small independent schools attended by under 1,000 pupils, and there is ample alternative provision for those pupils in the grant-aided sector should parents so wish.
The noble Lord, Lord Holme, asked about religious education. It is important that we should look at history and religion in order to allow people to understand different views and arguments. Not only are we required to adhere to the statutory core syllabus for religious education, but parents have a right to make a formal complaint if they are unhappy about the way religious education is being taught or to withdraw their child from religious education and collective worship in exercise of their conscience. We are very aware of the different views. In history, which is also communities building up an understanding of each other, Key Stages 1 to 4 are currently being revised and updated. The new programme will be operated from September 1996. One hopes that future generations will benefit from opportunities met.
We have all learnt lessons from the past in Northern Ireland. I assure the noble Lord that the Government are not neutral on integrated education whether for new schools or the transformation of existing ones. The Department of Education for Northern Ireland has a statutory responsibility to encourage and facilitate the development of integrated education. Immediately the integrated schools have satisfied the department as to their potential by ability, they receive 100 per cent. recurrent funding.
As the noble Lord pointed out, we see growth in this area. It is steady, but there is evidence that it is successful. We have made our financial commitment very visible. Spending on grant-maintained integrated schools has risen from £6.7 million in 1993–94 to £12.7 million in 1995–96.
I shall read Hansard carefully and if there are any points that I have missed in my reply I shall write to the noble Lord. This order is introducing changes to the education system in Northern Ireland which will be for the good of the education service as a whole and will ensure that the children and young people of the Province continue to receive a high standard of

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education of which parents, children and the Government are rightly proud. We are grateful to the people who nurture the youngsters in the Province and who give them the right to look forward to a bright future. We all work constantly towards that. I commend this order to your Lordships.
Lord Williams of Mostyn: My Lords, before the Minister sits down, may I coax her on two matters which both the noble Lord, Lord Holme of Cheltenham, and I have raised? Does she not agree that a parents' meeting cannot do the job of an audit, and neither can the inspectors? Our concerns remain unsatisfied on the question of audit. I would welcome a firm commitment, even in writing.
Can the Minister offer in a sentence or two the intellectual, moral, social or educational justification for the distinction between a parent who pays and who has his child hit and a parent who does not pay and whose child is not hit?
Baroness Denton of Wakefield: My Lords, I shall deal with the second question first. I was not suggesting that there was a distinction between them. I was suggesting that there was provision in grant-maintained schools for parents who choose specifically not to have their child subject to corporal punishment. In the independent schools, which are not supported by government, there is a choice for the parent. I was saying that and not that the Government were saying that there was a right to pay or not to pay. As regards an audit, I shall consult my colleague and write to the noble Lord.
Lord Williams of Mostyn: My Lords, as always, I am most grateful to the Minister.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until two minutes before eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.32 to 7.58 p.m.]

Family Law Bill [H.L.]
House again in Committee.
Clause 3 [Conversion of separation order into divorce order]:
[Amendments Nos. 16 and 17 not moved.]
Clause 3 agreed to.
Clause 4 [Marital breakdown]:
The Deputy Chairman of Committees (Lord Strabolgi): Before I call Amendment No. 18, I must inform the Committee that if Amendment No. 18 is agreed to, I cannot then call Amendments Nos. 18A to 20.
[Amendment No. 18 not moved.]
8 p.m.
Baroness Young Baroness Young moved Amendment No. 18A:
Page 2, line 31, leave out ("one (or both)") and insert ("both").
The noble Baroness said: I am moving Amendment No. 18A on behalf of my noble friend Lord Ashbourne who, unfortunately, is unable to be here today. The purpose of the amendment is to consider cases where divorce is permitted only where both parties consent to it. I raise this point because one of the issues that has been exercising the minds of many of us is that under the terms of the Bill, unlike the 1969 Act where divorce is available without the consent of one spouse after five years, divorce will become available against the wishes of a spouse at the end of a year, which is a very short time.
It seems to me that in our discussions there has been broad agreement that where both parties agree to a divorce, particularly where no children are involved, it is a relatively straightforward matter. However, when it comes to a divorce in which children are involved, bearing in mind the great concern expressed by noble Lords of all parties in earlier debates, the amendment is helpful. It is not an amendment I wish to press, but I have received much correspondence expressing great concern about divorce being available after a year against the wishes of one party.
It was said at Second Reading that we have the highest divorce rate in the European Union. I have no doubt that the statistic is correct although I have not had an opportunity to check. Of course, divorce could be more difficult to obtain in other European Union countries which is why their divorce rates are not as high as ours. I do not know whether that is the case.
I know of a case in Switzerland which, I recognise, is not in the European Union. One party could not divorce without the consent of the other. It was very many years before the divorce finally came through on the death of one of the parties. There is clearly a great variation in legislation. If we are worried about the increase in divorce and the easiness of divorce, the matter should be considered.
It may help the Committee if I speak also to Amendments Nos. 19, 29, 165 and 166 which deal with a completely separate point. Amendment No. 19 replaces the concept of marriage breakdown with the concept of a state of failure. That is more than a semantic point. I recognise that the concept of the irretrievable breakdown of marriage has existed in law for a very long time. But it is a completely fatalistic philosophy. I thought that Christians believed no human situation to be irretrievable; perhaps I am wrong.
In real life, couples can be reconciled even after periods of difficulty in their marriage relationship. The language of marriage breakdown also removes responsibility from the couple itself. The marriage, rather than individuals, is held to be at fault. I recognise that it is dangerous to use the word "fault", but that is how it is interpreted. As we know, every year there are some 20,000 to 30,000 more petitions for divorce than there are divorces. That at least suggests that many people come to the edge, then consider the whole thing and withdraw at the last moment.
Under the Bill, one or both parties to the marriage must make a statement of marriage breakdown. Under Clause 4, that act alone is sufficient to prove irretrievable breakdown of marriage. The only proviso is, of course, the waiting period of one year under Clause 7. The White Paper states:
"At least some divorce petitions, possibly many, represent a 'cry for help', which may not reflect a seriously thought out decision to end the marriage".
That is something with which I am sure we would all agree.
I have tabled Amendment No. 19 and the consequential Amendments Nos. 29, 165 and 166 because I think that the fatalistic language of the Bill could be improved by indicating that in difficult situations we should encourage people, wherever possible, to consider reconciliation and not to see everything as immediately at an end. I beg to move.
Lord Elton: Will my noble friend say whether Amendment No. 21 fell with Amendment No. 18 or whether it remains in the group? If so, is she addressing that amendment also?
Baroness Young: I am speaking to Amendments Nos. 18A, 19, 20 and 21.
Lord Simon of Glaisdale: I did not catch what the noble Baroness said. Is she speaking also to Amendment No. 29?
Baroness Young: I have spoken to Amendments Nos. 19, 29, 165 and 166. My noble friend Lord Elton asked whether I was speaking also to Amendment No. 21. The answer is yes.
Baroness Elles: I support my noble friend Lady Young, especially on Amendment No. 18A which she introduced on behalf of our noble friend Lord Ashbourne. There is enormous concern about the way the Bill is drafted. Perhaps my noble and learned friend the Lord Chancellor will explain and elaborate on the issue. At the moment it is a unilateral demand for divorce. Where just one person makes a statement of irretrievable breakdown of the marriage, or believes that the marriage has failed, the other party has no say in the matter. As I understand it, under the Bill—perhaps my noble and learned friend will elaborate—there is no obligation on the other party to go through the process of mediation. Only under a later clause—perhaps Clause 10—could the non-agreeing party claim a hardship of one kind or another and try to stop the divorce.
As my noble and learned friend, as a great connoisseur of human nature will know, and as most Members of the. Committee will know, there are cases where people have a quarrel and think they are going to divorce. Time then somehow heals the situation and people change their minds. In the way the Bill is conceived, if someone says, "The marriage has broken down. I have made a statement," the other party will have great difficulty in ever trying to restore the situation. Where both agree, that is one situation which is being proposed. But it does not cure the defect in the
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case of one party who wants a divorce against another party who does not. That does not solve the issue; it creates a new situation where both parties want a divorce. That happens and it is understandable. It would he a reasonable amendment in that particular case but other amendments would be required to deal with the other situation. Where both partners for various reasons want a divorce, and where there are no children and no problems about the division of assets, the Bill is in a reasonable state. However, it does not solve the case in which one partner wants to stay married.
There is no amendment covering the situation in which the person making a statement must have undertaken some form of reconciliation with both parties present. I do not know whether my noble and learned friend can answer my concern about the form of obligation on the person who makes the statement to notify the other party that the statement has been made. I do not know whether my noble and learned friend will be issuing regulations on the way in which the procedure is carried out. There is nothing in the Bill to enable one to say that, if X goes to a court or to a registry office and makes a statement, the other party will know even if he or she is abroad, or ill or looking after children or a member of the family somewhere else. That is a minor point but it is of considerable concern to people in that situation. I should be glad if, in answering my noble friend Lady Young, my noble and learned friend could address those points.
Baroness Faithfull: The noble Lord, Lord Northbourne, is in India and was unable to table his amendments. He asked me to table amendments for him in my name. I am speaking to Amendment No. 25. The noble Lord, Lord Northbourne, wanted both partners to sign the statement. My noble and learned friend the Lord Chancellor kindly saw me and explained why that was not possible. Perhaps I may raise the matter now because it refers to a point made by the noble Baroness.
Lord Coleraine: We have a mixed bag of amendments and I am speaking to Amendment No. 20 standing in my name, which provides that the statement being made will be a statement that the maker believes that the marriage may have broken down and not that the marriage has broken down. That is in line with Amendment No. 19, to which my noble friend Lady Young has spoken.
What I wish to know from my noble and learned friend is the same as was requested by my noble friend Lady Elles. What will happen to the statement when it gets to court? Will it be seen by the other side, the spouse who is to be divorced, assuming that the statement is made by only one spouse? Whether or not it is seen by the other side, the other side will know that the spouse who has made the statement has stated that the marriage has broken down and the spouse making the statement knows that he is making a statement that the marriage has broken down. In my view, it would be less confrontational and more liable to keep the peace between the parties if the statement were not made in the form in the Bill but in the form of my amendment.
8.15 p.m.
Lord Simon of Glaisdale: Perhaps I may make two points. First, we are suffering from over-generous grouping. In respect of an earlier amendment tabled by the noble Lord, Lord Meston, to which I listened platonically, I found it extraordinarily difficult to follow all the various points. They seemed to be disparate amendments that were grouped together. That was again the case in respect of the amendment moved by the noble Baroness, Lady Young.
Secondly, I wish to comment on the noble Baroness's Amendment No. 29. For the reasons that I explained earlier, I do not like the word "irretrievable". The noble Baroness indicated that her amendments were exploratory. I agree that the point is more than a semantic one in this sensitive area. I wish to suggest for her consideration and that of my noble and learned friend that the better word is "crisis". It can be stated that the marriage has come to a crisis. It has not necessarily failed nor necessarily broken down and certainly it may not be irretrievable. The hope of my noble and learned friend's arguments today is that the marriage may be retrieved in the course of mediation, conciliation and reconciliation at an early or late stage. Under those circumstances, it would be a better message, indeed a better test, to say that the marriage has come to a crisis.
Irretrievable breakdown is a recent intellectual phrase. Practically nothing was heard of it until the Royal Commission on marriage and divorce reported in the mid-1950s. Then only one of the 20 members, Sheriff Walker, suggested that irretrievable breakdown was preferable to the views of both majorities which were divided, I believe, 10 and nine. Once he had suggested irretrievable breakdown it was taken up enthusiastically by the extreme divorce reformers, who had little love for family and marriage. The whole issue of the modern law review was devoted to advocating Sheriff Walker's view. That was where the phrase came from.
The then Lord Bishop of Exeter, in Putting Asunder, took up the phrase and, following Sheriff Walker's recommendation, provided that it should not be mixed up with allegations of fault. Everybody told him immediately that it was quite impossible to investigate irretrievable breakdown judicially without having regard to evidence supporting it. He then rapidly agreed with the Law Commission the mixed test that was in the 1969 Act.
Even though it contradicted what his committee had recommended in Putting Asunder, he nevertheless was one of the Tellers in your Lordships' House in favour of the 1969 Bill. Another right reverend Prelate voted against the Bill and a leading matrimonial lawyer, Lord Hodson, and a leading proponent of women's rights—in particular married women's interests—Lady Summerskill, were the Tellers against the Bill. That was the line-up. With the prelacy divided and the Lord Bishop of Exeter telling in favour of a Bill which contradicted his committee, no wonder we are in a state of confusion at the moment.
The Lord Bishop of Liverpool: We are talking about a bunch of quite different amendments. I wish to pick
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out one or two pieces of language used by the noble Lord, Lord Coleraine, as regards Amendment No. 20. It strikes me that if somebody says, "My marriage may have broken down", that is the right moment at which to go to a marriage guidance counsellor. That is not the right moment to he talking about divorce. I would hope that if that is what somebody feels is true about his marriage, he would always be encouraged or advised to go to a counsellor. The same applies to a marriage in crisis. The noble Baroness, Lady Young, spoke of Christians believing that there can be redemption. Thank God. I know story after story of marriages in crisis but the faults have been faced. The people involved have gone for help and have strengthened and rebuilt their marriage.
But alas, the law must deal with the occasions when the marriage has broken down. I pick out the word "failure" in Amendments Nos. 19 and 29. Yes, of course, there is an immense sense of failure in the people I know who have been through the pain of divorce. They feel a failure of the central commitment of marriage which is to build, cherish and sustain a trusting and loving partnership. That failure or fault is at the heart of what is meant by a broken marriage.
But how would it help us to use that failure? My experience of those going into a second marriage is that they often have an over-pronounced sense of failure and an acute nervousness as regards not being able to build where they have failed before. I feel that it would be breaking the bruised reed if we rub in that failure.
The word "fault" has almost inevitably come back into matters. I want to say very little about that. Those great faults of unfaithfulness and cruelty are very serious matters but they do not of themselves break a marriage. As I said, thank God there are wonderful stories of people being forgiven and healed and of marriages being rebuilt. But it is the arriving at a decision that a marriage has irretrievably broken down which brings the marriage to an end. There are many difficulties and I have total sympathy with the wish to protect the partner who does not wish the marriage to come to an end. Marriage is a union of consenting partners. If one partner firmly and irrevocably withdraws that consent, the marriage will not go forward from that place. There can be bitter motives on both sides. There can be bitter motives in the one who leaves; there can be bitter punitive motives in the one who has, with the law as it is, refused to give someone their freedom, as they say, until five years have passed.
Does waiting for that period of five years really help? We all know that fault and faults are part of the story. The question about law is whether law can correctly unearth and apportion fault. Surely the experience of us all is that the law has proved an exceedingly clumsy instrument which has frequently apportioned fault unequally and unjustly.
Lord Simon of Glaisdale: Does the right reverend Prelate agree that the Church courts apportioned fault without any real difficulty for some 1,500 years?
The Lord Bishop of Liverpool: It may not have found any difficulty but I guess that, in particular, many of the women concerned found a good deal of difficulty in what the Church courts would have found in those years.

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Before we leave the word "fault" it is worth saying that it was the 1969 fault-based law which opened the floodgates with which we are concerned today. When I have known a couple closely through the pain of divorce, I have realised that there has been fault on both sides. Even if I knew people many times better than any court could, it would be very difficult to apportion the blame fairly. It seems to me that there is a Christian view of fault and that is that I should be more concerned with my own part in the fault than in trying to establish my partner's part.
The question which we must ask, which I believe the noble and learned Lord the Lord Chancellor has asked very carefully, is whether there is a better chance of fault being examined properly, including one's own fault, in the adversarial context of a law court or in the more relaxed atmosphere that we hope will exist for mediation.
One of the most tragic figures about divorce is the number of divorces of second marriages. The point has been made already today that people sometimes rush on from the breakdown of a first marriage without seeing their part in it. One of the great reasons for divorce over time in this way is that people will he given the opportunity to reflect on their part in the breakdown of a marriage before they are free to go forward to another marriage.
I believe that irretrievable breakdown is not a fatalism. Couples know they have failed but I do not believe that we need to exaggerate that profound sense of failure which so many people feel.
Lord Stoddart of Swindon: I should like to say a few words on Amendment No. 18A moved by the noble Baroness, Lady Young. I come back to the messages that we are sending out. I am sorry to be repetitive about that but I believe that that is really the crux of the matter.
What are we saying? Two people solemnly enter either a Church or a civil contract to establish a relationship not on a day-to-day basis but on a supposedly permanent basis. It is not one person who agrees to do that; it is two people. There are two people involved in making a contract of marriage—and we do call it a contract of marriage, whether it is made in heaven or in the registry office. It is a contract. But here, against all the laws of contract, we are saying that the contract can be unilaterally abrogated. We are saying that a contract made by two people can be set aside by one of the people who is party to that contract; and, even worse, that can be done without giving any reason.
There is no need to give a reason for the breakdown between the two who made the contract because, as we have just heard from the right reverend Prelate, fault has gone. The Government want to do away with fault. Therefore, all one party has to do to break the contract which was entered into solemnly is to say that it has irretrievably broken down. There is nothing in the Bill to say that there must be justification for that. Unless there are certain other conditions involving children or hardship and so on, the other party will have to put up with that. That is not a very equal contract.
As I said, that sends out the wrong message to people who are about to marry because at the back of their minds when they are marrying now they say, "Well,
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if we want to put it asunder, there are certain things which must be done and we may be blamed by society". They may feel that there will be a bit of a stigma if the contract is ended unilaterally. Indeed, one of them may feel sorry for the other partner and may feel that he or she is "wronging" that person. It is not so much a case of it being a social stigma: there are social reasons why people do not embark upon such action.
However, what we are now telling people when they are about to get married is that they do not really have to think very much about it because, after two years, one of them can simply go to court and say that the marriage has irretrievably broken down. That means that they will, perhaps, not think too seriously about their marriage vows. That is the last thing we want. We want them to think more seriously about such vows. But the Bill sends them the message that they do not have to think too seriously because, if they are not getting on after a couple a years, one party can say, "I've had enough of this; the marriage is irretrievably broken down. No matter what my partner thinks and no matter what my fellow contractee has said, I can end this unilaterally". I believe that we are sending the wrong message. I believe it most sincerely, despite the remarks of the right reverend Prelate. We must reflect on the matter. That is why I believe we should give serious consideration to this group of amendments.
8.30 p.m.
Lord Elton: I believe that my noble and learned friend can help to resolve a couple of anxieties which are felt by a wider group of people than perhaps have attached their names to amendments. The first anxiety relates to Amendment No. 29 and the debate about words. I accept that it is not a debate about semantics.
The right reverend Prelate said that it was not a question of crisis. That is when you start trying to save a marriage and not when you start initiating a divorce. However, the noble and learned Lord, Lord Simon of Glaisdale, described a sequence which many of us thought we had detected in the Bill; namely, a process which starts with making a statement followed by compulsory mediation during which conciliation is offered and mediation can be put on one side and concluding in reconciliation or, if that fails, in divorce. So crisis would be the right word for the beginning of the process but the wrong word for the beginning of something which presumably could only end in divorce.
Perhaps my noble and learned friend can say more about the relationship between mediation and conciliation. I know that it belongs in Clause 5, but it is relevant to this group of amendments. The key amendment is Amendment No. 18A which lays down that there can only be divorce between consenting partners. That amendment is itself amended, as it were, by Amendments Nos. 21 and 23 which suggest an alternative route where there is no consent and which returns to the issue of fault.
I do not wish to return to the issue of fault. However, many of us are disturbed by the way in which it is possible to describe the Bill as providing a contract of marriage which can be abrogated unilaterally after a short time. There are cases where one of the parties does

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not actually despair of the marriage and where in fact hope is justified, as my noble friend said when speaking to one of her earlier amendments.
It would be helpful if my noble and learned friend could explain the position of the other party. Indeed, any party, whether consenting or not, needs to know that such a statement has been made. As my noble friend Lady Elles, I believe, pointed out, it would seem quite possible under the Bill for a statement to be made without the knowledge of the other party. But where the other party actually wishes to continue to try to salvage the marriage then, a fortiori, we would like to know what the arrangements would be.
Lord Coleraine: I agree with the noble and learned Lord, Lord Simon of Glaisdale, about the size of the groupings of amendments. I suspect that the intention is benevolent; namely, that we should have large, general debates in which all the issues involved on any particular broad group of subjects can be discussed. However, my own feeling is that the discussions tend to get sidetracked and are not conclusive. All we are doing is building up trouble for the Report stage. Indeed, we shall end up with very long Report stage debates on matters not properly discussed at this point.
Baroness Trumpington: I understand—and I hope that the noble Lord, Lord Graham of Edmonton, will agree—that groupings are set down by arrangement between the usual channels. If anyone objects to anything, he or she is perfectly at liberty to degroup an amendment. Equally, that does not stop someone moving the amendment when we come to the relevant point. I hope that I am correct in my assumption.
Lord Graham of Edmonton: I can only speak on behalf of the official Opposition. We are invited to agree to the groupings proposed. Indeed, my noble friend Lord Irvine wishes to raise a particular matter in a short while. The problem is that unless everyone whose amendments are put into a group is consulted—Members of the Committee can see by the size of the groups how difficult, if not impossible, it was in this case—then he or she is entitled to make the kind of comments that have just been made.
Lord Coleraine: I am most grateful but I should like to continue. It is correct to say that one can change the grouping and degroup. However, there were special difficulties today in that when one telephoned the Whips' Office one got a continual ringing sound because the telephone was not working. Moreover, the groupings list was available only shortly before the Committee sat. I find that amendments which were in one group 10 days ago now turn up in another. Indeed, one paving amendment has been detached and put into an altogether different group. Although such large debates are clearly designed to achieve a good effect, I doubt very much whether they do so in the long term.
The right reverend Prelate referred to Amendment No. 20. I am certainly aware that if one puts in the statement the fact that the marriage may have broken down it runs the risk of starting proceedings prematurely and that in
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such a case it is possibly better if the divorce does not start at that point. However, the amendment we are discussing is largely an amendment of benevolent semantics. Whatever happens the party considering making the statement will make such a statement as and when he or she has decided that the marriage has broken down and a divorce is required. I do not believe that that should necessarily prevent the statement containing the words "may have broken down" as opposed to "has broken down".
Lord Meston: I cannot help but suspect that one of the concerns raised by the amendments is an anxiety about how far one party can go down the path to a divorce without the other party knowing about it, let alone consenting to it. I believe that some confusion has crept into our discussions.
I have assumed that all the various documents which must be put before the court—in particular, the initial statement—will have to he served promptly upon the other party. I suspect that that is not perhaps as clear as it might be on the face of the Bill. However, I presume that that would be covered by the rules to be implemented under Clause 11 whereby the Lord Chancellor,
"may make rules … requiring the parties to be given, in such manner as may be specified, copes of such statements and other documents as may be specified".
I have to say that earlier today I was especially concerned about the provision for a declaration under Clause 9 by one of the parties that the family has "no significant assets", and so on.
However, I return to the point of the amendments. Whatever the legal mechanism which happens to be in operation at the time, the reality is that the parties to a marriage will probably have different views as to whether or not the marriage is at an end, at least at the beginning of the process.
This Bill has been criticised as allowing for unilateral repudiation of marriage. However, I invite the Committee to consider what is the present state of the law. As the law stands, divorce in reality quite often represents a unilateral repudiation of the marriage by one party which is only reluctantly and eventually accepted by the other party. The other party—the reluctant party—may not have the resolve or the funds to fight a divorce and cannot therefore stop the process, and indeed by trying to stop the process merely emphasises to the court the fact that the marriage has in reality hopelessly broken down.
The defect, as it seems to me, of the existing system, as the noble Baroness, Lady Elles, put it, is that there is no time given for the marriage to heal, if it is possible to heal the marriage. It seems to me that the virtue of this Bill is that it provides a mandatory period of a year to enable such healing to take place if it is at all possible. However, I suggest that consideration might be given to an indication at this stage as to how the rules under Clause 11 for service of documents on the other side arc to take shape in reality.
Lord Irvine of Lairg: I desire to say a word or two in support of what the noble Lord, Lord Coleraine, said about the groupings. I have to say for myself that I find the groupings far too heavy, each incorporating a series

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of unrelated issues. Therefore they are monstrously muddled. I hope that we can do much better in the later stages of this Committee. I do not know how many draft versions of the groupings—I think it was about three—I looked at in the half hour between 2 p.m. and 2.30. The noble Baroness, Lady Trumpington, says that this has to be agreed between the usual channels. That should indeed be the case, but the previous Committee day was on llth January; we are now at 22nd January and these draft groupings were only being circulated about half an hour before the Committee sat. In my submission, that does not begin to be good enough.
I agree with the noble Lord, Lord Coleraine, that what overladen groupings of this kind entail is an invitation to a series of Second Reading debates and speeches on a broad range of issues. There is a loss of focus on specific amendments and therefore denial of an effective Committee stage. I hope that we can do much better at later stages in this Committee and that there will be longer notice through the usual channels.
8.45 p.m.
The Lord Chancellor: I find the particular groupings that have been attempted quite difficult. On the other hand some form of grouping is required. If we can all do better, I shall be very happy. I shall try to deal with the grouping that we have, which starts with Amendment No. 18A. The principle behind this amendment is based on consent and it alters the period, or allows the period to operate, by virtue of consent. I think that this is a point that arises under the present law. It is worth remembering what the present law is. I believe that this particular part of the present law continues to be reflected in Amendment No. 23 of my noble friend Lady Young.
The point is that the various aspects of the ground for divorce under the present law affect the time it takes to obtain a divorce. The noble Lord, Lord Stoddart, says we must consider the messages that our law sends out. The message the present law sends out, and the message Amendment No. 18A, with Amendment No. 23, would send out is that if parties are agreed that they may get rid of their marriage, that can happen comparatively quickly. If one of the parties is at fault, that may also lead to an early divorce. However, if no fault is alleged against either party, neither of them can remarry for a period of five years. That does not appear to me to send out a signal of disapproval of fault, because the person at fault is apparently free to remarry much earlier than the person who is not at fault.
I come to the second point. My noble friend Lady Young says that the proposals I have are in a sense fatalistic and that it is important to consider the situation of the spouse who does not want the divorce to go ahead. I do not agree that the structure that the Government are proposing is fatalistic in that sense. What the Government are proposing is, first, the information session if the marriage is in crisis. One might hope that people would seek help before it reached that stage. However, if they are at the stage of thinking about a process in court, they have the information session which is intended to help them to deal with the situation as it then exists.
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At that stage the position is that they need not do anything more if they can get help and can resolve the crisis. One has to measure these crises:, they are all in a sense crises. The next stage is where one of the parties considers that the marriage has broken down. This is, of course, the matter that is focused primarily by the later amendments in this group, Amendments Nos. 29, 165 and 166. My noble and learned friend Lord Simon of Glaisdale has criticised the phrase "irretrievable breakdown" as having originated from a Scottish sheriff. However, I believe it has the merit—there may be other phrases available—of referring to stages of crisis. The crisis of breakdown is the one that triggers the process, and then a period has to elapse before one reaches the next stage of irretrievable breakdown.
The trouble with "failure", I believe, is that it is difficult to establish in degrees. I believe that "breakdown" is a word that one can accommodate in degrees whereas "failure" appears to me to be complete. If one starts off considering that a marriage has failed, it is difficult to see how one can, as it were, progress to some more definite conclusion about it. I would respectfully suggest to the Committee that to start off suggesting that a marriage has failed is more fatalistic than the way we have sought to go about it.
In Amendment No. 18A my noble friend Lady Young has put a requirement at the centre of Clause 4 that both parties should take the view that the divorce should go ahead. I regard consent as a somewhat dangerous basis on which alone to allow divorce to go ahead because, as has already been said, the relationship is one that depends on the active support of both parties.
I have already dealt with the point about failure in Amendment No. 19 and later amendments.
Amendment No. 20 in the name of my noble friend Lord Coleraine makes the first declaration more provisional. I would regard it as undesirable to make it easier than we have made it to make the first statement. In other words, one ought not to seek to initiate a divorce process unless one is of the view that the marriage is in the state of crisis which involves breakdown. If it is less than that I would hope that the help that is mentioned, and about which information will be available at the information session, will help people to take other steps than to go forward to the divorce process.
Amendment No. 21 is an introduction to Amendment No. 23. I shall return to that amendment, but in the meantime there is my amendment, Amendment No. 22. That is no more than a drafting amendment to make clear what is intended in Clause 6. I propose to amend the Bill by removing Clause 6 and replacing it with Amendment No. 22 as an improvement.
As Clause 6 currently stands, if a statement were made jointly but only one party wanted to make an application for a divorce order the other party could effectively prevent the divorce by refusing to make the appropriate declaration. The declaration should only be made by the party or parties who make the application, with no reference back to who made the original statement. The effect of Amendment No. 22 is to make that clear.

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Amendment No. 23 requires allegations to he made. Those are set out in paragraphs (a), (b) and (c). My noble and learned friend Lord Simon of Glaisdale referred to the judgments in the ecclesiastical courts over the years. I believe that the grounds that were before the ecclesiastical courts were a good deal less ample than the grounds contained in paragraphs (a), (b) and (c), particularly in relation to paragraph (b). I believe that the ground for divorce set out in that paragraph—namely, that,
"the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent"
—enables divorce to be obtained on that basis with comparative ease.
In any event, that amendment, with its paragraphs (a), (b) and (c), points sharply to the message that if there is grievous fault such as adultery one may be allowed to remarry very quickly, but if one has not been responsible for any fault in a marriage except living apart one may have to wait for at least five years. That is a problem with a law which is based on fault.
Before I leave that amendment I should like to say that the suggestion that the Government are trying to make out that there is no such thing as fault is not a justified criticism of the Bill. The Government are trying to secure a framework for divorce law which makes it as easy as possible to keep marriages going and to restore those where there is any hope of restoration. However, in my submission it is not realistic to think that in the situation with which we are faced it is possible to improve on that situation. The best that we can do is to provide a framework in which those marriages are restored if at all possible.
Amendment No. 24 is consequential. Amendment No. 25 would require the applicant for the divorce in its final form to be the same person who made the original statement. One of the purposes of this structure is to leave it as open as possible for the marriage to be restored. I believe that it is therefore important that where the process is initiated it should be possible for either party to take steps under the process equally.
I was asked about the way in which the provisions that we are dealing with at this stage would operate. The intention is that any document put before a court shall he properly served on those who arc interested. That is normally a matter dealt with under rules of court or regulation. The powers contained in Clause 11 are ample to secure that. I give the Committee every assurance that where it is possible to serve such a statement it will be served. It is only in the case of somebody who has completely disappeared or something of that kind when no service would be required. That applies to all the documentation, including the type of document that the noble Lord, Lord Meston, mentioned.
I wish to make a second point in this connection in answer to what was said by my noble friend Lady Elles on this aspect. The arrangements between the parties are intended to reflect what has happened between them. One of the provisions dealing with these matters is that where conduct is of such a nature that it would be
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inequitable to disregard it, it is to be taken into account in connection with dispositions of property. Therefore, the nature of the conduct as between the parties will have to be faced where it is important in connection with the arrangements that are made between them and the way in which they face up to the responsibilities which this Bill requires them to face. Therefore, the nature of their conduct is not left out of account. It is accepted that it requires two to make a continuing marriage. If one has demonstrated by as long as a year's refusal to take the marriage forward then it is clear that the marriage has irretrievably broken down. The consequences of that are to be reflected in the arrangements that are made between the parties in so far as it is appropriate and equitable for that to be required.
9 p.m.
Lord Stoddart of Swindon: The noble and learned Lord puts forward a serious and interesting proposal. Is he saying that, despite what has been said, there will remain fault in marriage, and that that will be punished by depriving the person who is at fault of a given amount, say, of money or property in any marriage settlement? That seems to be something new. I had not quite understood that.
The Lord Chancellor: It is not something new. It may be new to express it in quite the way that the noble Lord does. However, what I am directing attention to is that the conduct of the parties, where it would be inequitable to ignore it, is taken into account in the financial arrangements between them.
Lord Stoddart of Swindon: So they will be punished for it.
The Lord Chancellor: I do not use that language. But it is right that where the conduct is of such a character that it would be inequitable to ignore it, it is taken into account if the court has to adjust property rights between the parties.
Lord Stallard: We do not take that into account in the irretrievable break-up of the marriage. It is a no fault situation when it applies to the marriage, but it is a fault when it comes to the settlement.
The Lord Chancellor: These things are not entirely separate. One of the proposals in the Bill—we debated it earlier and I wish to emphasise it—is that before a divorce is granted under these proposals the parties will have to face up to the responsibilities flowing from their marriage. The way in which that is done includes the provision to which I have referred; namely, that if the conduct of a party is of such a character that it would he inequitable to disregard it in these arrangements, then the court will take it into account. In the proposals the Government have put before Parliament that factor is available for consideration.
My noble friend Lord Elton raised the question also in connection with the abrogation unilaterally after a short time. How short? In my submission to the Committee, a year is quite a substantial time in the context of this situation. The important factor is that it

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is a year with a purpose; namely, of consideration and reflection. The Bill seeks to put into the law, so far as the law can, a purpose for that period. It is not just an aimless delay; it is not done for no purpose, but to enable the parties to consider carefully in the light of all the help they can gain, and as regards the whole view of the future, what the future holds for them. The logical consequence of that is that if there is hope for the marriage to be saved, that is what will happen.
I believe that I have dealt with all the matters that arise under these grouped amendments. In due course I shall move my Amendment No. 22 and indicate then that I do not propose that Clause 6 stand part of the Bill. At Report stage your Lordships will have the Bill as the Government consider it should be on this aspect.
Lord Stoddart of Swindon: Before the noble and learned Lord sits down, I am sorry to delay the Committee but I have to have this clear. Earlier on the noble and learned Lord said that under the present arrangements the party to the marriage who is at fault is able to remarry sooner than the party not at fault. Is that correct? Did I understand that correctly?
The Lord Chancellor: Not quite. If you have a situation such as is contemplated in these amendments. a party who is at fault in a marriage will obtain a quick divorce—in less than five years—and therefore will be able to remarry more quickly than a party to a marriage who is not said to be at fault who has to wait at least five years for that. That is the point I seek to make. It is a very important point. It is a very profound message; and it is a message which in my view the law should not send. In my view, far from frowning, as it were, on these breaches it rather suggests that the breaches will be rewarded in a great number of cases by a rather rapid licence to remarry.
Lord Coleraine: Before my noble and learned friend leaves that point, is that not the situation under the present law as envisaged in 1969: that the issue was going to be fault based, and if you committed adultery you could be divorced but, otherwise, if the parties were not agreed upon a divorce, you had to wait for five years, separated during that period? Surely the positions are analogous one to another.
The Lord Chancellor: That is right. That is what I think is so wrong with the message that the present law sends out. Far from penalising that kind of fault, far from saying that the law disapproves of it, the message appears to be that the law commends it by the rapidity with which it will be blessed by a licence to remarry. I am sure that that is not what many of us would like to see, but that is the logic of the present position. It is one of the reasons that I feel that it is extremely difficult to have a sensible law which makes a distinction between a divorce based on fault and a divorce that is not based on fault unless the same timescale applies. In that case, having the fault base makes no real difference.
Lord Simon of Glaisdale: In answer to the noble Lord, Lord Stoddart, my noble and learned friend said that under the existing law a party who is at fault can obtain a quickie divorce—he did not use these words
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but I think that it is what he was referring to—and therefore can marry sooner than a party who has to wait five years who he assumes is not at fault. But the party who has to wait for five years may or may not be at fault himself. Indeed, he is more likely to be at fault than not at fault in actual situations.
My noble and learned friend dwelt much, as did the White Paper, on the imperfections of the present law. But in my respectful submission it is wrong to credit the critics of this Bill either with responsibility or with any affection for the 1969 Act. On the contrary, those who are critical of this Bill stand in place of, and are successors of, those who were critical in 1969. Many of the supporters of this Bill are the successors of those who supported the 1969 Act.
The Lord Chancellor: My noble and learned friend just pointed out that the five-year separation does not imply that a person is or is not at fault—which in a sense makes the point about the present law: it may or may not involve fault. My point is that if fault is alleged against a person, under the existing law the divorce can be much quicker than if no fault is alleged.
Regarding support for the 1969 Act, I am not concerned to say who is responsible for that. I am simply concerned to answer questions about messages. One takes the law as it is and says that this is the message it sends out. I do not want to say that opponents of the present Bill have any responsibility for that. All I am saying is that these are inevitable consequences of a particular position. That is what we have to examine.
Baroness Young: First, I thank my noble and learned friend the Lord Chancellor for his very detailed reply to these amendments. I shall read it with very great care. There are two issues to which we shall unquestionably return and in relation to which one cannot be entirely happy.
I am sorry to raise the question of fault once again. But as I understood my noble friend, he argued consistently that it is the fault provisions under the 1969 Act that have led to quick divorces. To take the divorce rate for the United Kingdom, I understand that it is only in England and Wales that this uniquely quick situation exists whereby divorces can take place, as some 30 per cent. do, in under six months.
In Northern Ireland, the corresponding figure for divorces that take place on the basis of two to five years is some 73.4 per cent. I understand that in Northern Ireland the statute law is identical to that which applies in England and Wales; the main difference is that there is no special procedure, introduced here in 1973, which I understand allows divorce by post, whereas in Northern Ireland a court appearance is required.
For reasons that I do not fully understand (I am not an expert in this field) we not only had the provisions of the 1969 Act but, in order to speed them all up a little, we made the process easier.
Presumably, the statutory instrument under which the special procedure operates could simply he repealed. Then we could have fault without the process happening so quickly. I do not quite understand why it should

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apply in one part of the United Kingdom and not in another. But there it is. There is still a lot of question in relation to fault.
Baroness Seear: I am sorry to interrupt the noble Baroness. Is it not possible that there is a difference in Northern Ireland because there is a much higher proportion of Roman Catholics?
Baroness Young: I cannot possibly say whether it is a result of the composition of the population. In Scotland, for reasons I do not fully understand, a much higher proportion of divorces take place after two to five years. There may be all sorts of reasons for that; I do not know what they are. But we might examine the situation within the United Kingdom. Whether, under the statutory instrument, the special procedure that was designed to speed the process up and save money (perhaps that is a good thing; it could be said that quicker divorce is cheaper for the Government) really contributes to the good of society and to an ultimate saving of public money is another question. This argument could continue.
I am bound to say that I was very disappointed in the remarks of the right reverend Prelate the Bishop of Liverpool. He says that, on the one hand, he believes in redemption but, on the other, one has to accept that a marriage has broken down. He is adopting a completely fatalistic approach on that point.
On the whole question of the wording, there is a good philosophical discussion as to whether "breakdown" is susceptible to the degrees of description that my noble and learned friend the Lord Chancellor gave to it and whether "failure" is. It is not a matter with which I intend to trouble the Committee at length at this stage of the evening. But the issue here is the message that we are sending out on these matters. "Irretrievable breakdown" has a very fatalistic sound to it: it suggests that that is the end.
I feel that this has been a valuable debate. It opened up a number of questions about which we have some concern. We are concerned particularly in Amendment No. 18A that there can be unilateral divorce, one party against the other, after a year. I believe that that should concern us all. It is a very serious point.
Amendments Nos. 99, 109 and 106 refer to provisions for a court to make an order barring divorce for two years where one spouse objects to the divorce. In practice that would prevent divorce for possibly four years. It is a way of extending the time—not punishing anyone—and giving people the opportunity to consider further whether they have a chance of getting back together again.
The question of conduct came up at the end of the discussion and my Amendment No. 108 refers to that. There will be a number of issues which need to be raised over the hardship clause, to which I shall certainly return at a later stage in the Committee's proceedings. I do not intend to raise them at this time. I shall read very carefully what my noble and learned friend has said on these matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
9.15 p.m.
Baroness Young Baroness Young moved Amendment No. 21A:
Page 2, line 34, at end insert—
("( ) the period for reconciliation fixed by section (Period for reconciliation) has ended; and").
The noble Baroness said: In moving this amendment and speaking to those grouped with it I come to a completely separate issue which concerns reconciliation. Amendments Nos. 21A, 21B, 21C, 32A, 33A, 35B, 38A, 38B and 39A incorporate a one-year period for reconciliation before a year for mediation.
There has been a great deal of discussion at both Second Reading and Committee on the importance of reconciliation. I accept that these amendments may not be properly drafted, but I hope very much that my noble and learned friend the Lord Chancellor will look very seriously at incorporating into this whole process a period of reconciliation. He said today in Committee that he hopes that during the period of mediation couples will come together. There has been much debate about what mediation can do, and no doubt we shall discuss the matter further. But, as I understand the Bill, there will be a statement of the intention to divorce and then mediation will begin to operate, but not until the couple have reached that stage. Therefore, it is concerned much more with dividing up the assets. One hopes that there will be a more amicable settlement. One cannot imagine that it can be made compulsory. I do not believe that anyone would necessarily go if he or she did not want to do so. Be all that as it may, I do not argue against mediation. I submit that we want something more than mediation. We want reconciliation.
I believe that that is perfectly possible. The noble Lord, Lord Irvine, at the last Committee stage made that very point about the importance of reconciliation. I believe that many people quite wrongly may see divorce as a solution to their marital difficulties. In fact, divorce can be a cry for help. Indeed, the White Paper, as I said before, admits that some, possibly many, divorce petitions represent a cry for help which may not reflect a seriously thought-out decision to end the marriage. It seems to me that if we are left with a no-fault provision in the law, the provision for reconciliation becomes even more important. It becomes important to the Chancellor of the Exchequer because the cost of family breakdown is at least some £3 billion every year.
I understand that the Bill envisages one year for mediation during which a couple, having faced up to the realities of what life will be like after divorce, may have second thoughts. I hope that they will do so. Certainly I am not against that. It will be easy, under mediation in the Bill, for the couple to talk immediately about splitting their assets; then, where no financial agreement is reached at the end of one year, under Clause 9 a spouse can apply to the court to end the discussion and make a divorce order.
That matter was referred to in an earlier debate and I shall read again what my noble and learned friend said on that point. The Bill appears to remove a number of obstacles to divorce and does little to encourage people

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to think again. Mediation and reconciliation will be difficult to carry out at the same time because they do not serve quite the same purpose.
I hope that in this series of amendments we can consider including these measures in the process, perhaps when the marriage is in crisis or when concern is expressed, as my noble and learned friend Lord Simon said. That is when one wants reconciliation—before one ever reaches the stage of statements or mediation.
I do not know what the answer is, but there is a great deal of feeling in the Committee that we ought to write into the Bill some provisions on reconciliation. That was a point made by Cardinal Hume in his article; he was concerned about this. I believe everybody is concerned to improve these arrangements. If we are to strengthen marriage and help those in difficulty, this is what we need.
I shall he the first to admit that none of the amendments may be quite appropriate. The ideal would be for my noble and learned friend the Lord Chancellor to come back at Report stage with an amendment of his own that meets our worries. However, at this time of the night I do not intend to take up the time of the Committee by repeating the arguments in relation to the buttressing of marriage. We dealt with those on the first amendment and said, when we agreed generally on the importance of that amendment, that other amendments should be judged against it.
The first point of the first amendment was to buttress marriage. A provision incorporating reconciliation would do that. That is something that is not only wanted in your Lordships' Chamber but, judging from the correspondence that I received and the people to whom I have spoken, it is one of the issues about which a great many people feel very strongly. I beg to move.
Baroness Faithfull: I agree with my noble friend Lady Young that we must concentrate on reconciliation. However, does she not agree that there are some powerful organisations already in this country which deal with reconciliation? For instance, Relate receives core funding from the Home Office and covers the whole country. We have a Roman Catholic marriage guidance council, a Jewish marriage guidance council and many other councils doing reconciliation work.
As my noble and learned friend will be aware, in Scotland the reconciliation and mediation services share the same office. A person goes to the reconciliation department before going to mediation. Perhaps taking into account what my noble friend Lady Young said, we can build on what we already have.
Lord Hylton: The noble Baroness, Lady Young, raised important points in the amendments and more will arise when we come to Clause 7.
I feel strongly that reconciliation is important. But if that is what we want on a national scale, far more resources will be required than are presently available. The noble Baroness, Lady Faithfull, mentioned some of the organisations. In theory they provide a national service, but what percentage of the separating or divorcing couples do they actually reach? It seems to me that far more trained marriage counsellors will be
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required and far more money to pay for them. That is one of the points which Cardinal Hume was attempting to make in his article.
Lord Irvine of Lairg: The noble Baroness, Lady Young, moved the amendment most modestly because she acknowledged that she may not have got the balance right, while at the same time correctly drawing the attention of the Committee to the need to get a correct balance between mediation and attempts at reconciliation.
I do not desire to anticipate—it would not be right to do so—the argument and discussion there will be on Amendments Nos. 40 and 55 which stand in my name and that of my noble and learned friend Lord Archer of Sandwell. At that stage I shall attempt some suggestions as to what the correct relationship should be. If the noble Baroness will forgive me for saying so, in relation to her amendments, I do not think that a mandatory year for reconciliation is the right way through. On the other hand, we have to bear in mind that mediation is not as such about reconciliation. That is what the mediators are always telling us. The mediator is not a reconciliator. He is a mediator of solutions for parties who have reached the stage of having agreed that they must part and he is the mediator of solutions for them to try to agree, if they are able.
However, in considering the important relationship between mediation and attempts at reconciliation, we shall have to consider whether mediators should be put by Parliament under some kind of duty to encourage the parties to consider attempting reconciliation. That would not be a duty to be put on the mediator to engage in a process of trying to persuade the parties to become reconciled. It would merely be a duty to say to them, "Do consider attempting reconciliation. It is an option that is still there although you have embarked on mediation". If the answer was no, the mediator would have to accept that answer without demur and get on with his job, which is mediating. If the answer was, "Yes, we would like to think about reconciliation", the mediator should refer the parties for counselling if that is acceptable to them both.
With respect to the noble Baroness, Lady Young, what I think lies at the root of her concern in this area is to avoid legislating in such a way that mediation acquires a momentum of its own so that once embarked upon it excludes attempts at reconciliation. However, I do not think that a mandatory period for reconciliation, whether of a year or any other period, is the right way forward because one cannot compel people to attempt reconciliation. They have to want to attempt it. If in the view of both the marriage has broken down and neither wants to attempt reconciliation, that is the state of affairs in the hard world in which one simply must engage and then the mandatory period of a year for reconciliation would be a period of delay and would be, in my view, to no sensible purpose.
9.30 p.m.
The Earl of Perth: This amendment is of tremendous importance in our discussions on the Bill. It seems to me that in fact there is a certain amount of loose

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thinking reflected in the Bill as it stands. Perhaps I may go back a little. A couple decide that they want to get married for one of many reasons. We have heard from the right reverend Prelate that if they are to be married in the Church of England there is time for very serious instruction. I am all for that. I am equally clear that it happens in the Roman Catholic Church and in others. The parties are told what marriage is all about. They come to a judgment—I am forgetting about the civil registration—and get married. They have been told all about it. They live together for a period of time, then things begin to go wrong. If one is not careful, they go wrong rather quickly.
Under this Bill, as I read it, there is no real provision made for knowing anything about that or, if one does, of being able to help. There is no specific mention or allotment for counselling and reconciliation. I shall read what the noble and learned Lord, The Lord Chancellor said. He said that in the course of mediation the parties may get counselling. I am all for that, but counselling has to be recognised in the Bill and is on its own. The Government must face up to the fact that it is not enough to have all these bodies that the noble Baroness, Lady Faithfull, mentioned, to do voluntary work, although I am all for them.
I do not believe that that provision is in the Bill. I want the Government to put aside money for counselling, reconciliation, call it what one will, before one gets to the stage of mediation. This is one of the very critical issues about this Bill, because that provision is not clear. The noble Lord, Lord Irvine of Lairg, referred to the length of time. That is a very difficult subject. If one believes that this is a very important matter for everyone concerned, then a year or two years—I put my name to a two-year period—is not too long because it affects not only the whole life of the couple but, more importantly perhaps, it concerns the children and their well being.
Even if the marriage is a failure or has broken down—whatever the word is that everyone uses, because it is very difficult to distinguish between them—I return to the one matter: one must try to make the marriage work. Having taken vows or even having been in a register office, one really has to try, so the period of time is very important. I repeat: as I now read the Bill there is no real provision for counselling, reconciliation, call it what one will. For that reason, I wholly support the various amendments tabled by the noble Baroness, Lady Young, on this matter.
Lord Meston: The groupings suggest that my Amendments Nos. 54, 56, 58 and 60 should be debated now, but having heard the noble Lord, Lord Irvine of Lairg, as regards his Amendment No. 40, I believe that it would be more appropriate for what I want to say about Clause 7 to be debated with his Amendment No. 40. In so doing, I simply indicate that perhaps the point of Amendment No. 54 is really to draw attention to the fact that the only specific provision in the Bill for attempted reconciliation and for such an attempt to stop the clock, depends on a notice being lodged with the court. I question whether it is appropriate to require the
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parties—or one of them—to lodge a notice with the court at the time of an attempted reconciliation if they wish to stop the clock running. However, I shall return to that point.
The Lord Bishop of Oxford: The groupings are a little confusing, but I hope that it is in order for me to say something briefly about the two amendments which stand in my name and which are part of this grouping as it stands. I refer to Amendments Nos. 123 and 125. I hope that they are uncontroversial because they are designed to add precision to this debate and in particular to the relationships between reconciliation, marriage counselling and mediation.
Clause 11(2) states:
"The Lord Chancellor may make rules requiring a person who is or has been the legal representative of a party to a marriage".
to inform that person of various points; the first being:
"(a) whether he has discussed with that party— (i) the possibility of a reconciliation".
We firmly support the retention of the reference to "reconciliation" at that point.
However, we have worries about sub-paragraphs (ii) and (iii) which appear at the top of page 7. I refer particularly to the reference to "counselling facilities". We believe that that should be a clear reference to "marriage counselling facilities". Many amendments relate to marriage counselling. Some are designed to make clear what is meant by "marriage counselling" and who might be approved by the Lord Chancellor as a proper body to carry out marriage counselling. Therefore, we think it important to have a reference to "marriage counselling" at this point in the Bill rather than simply to "counselling" generally.
We should also like the order of the provisions to be reversed so that,
"the availability to the parties of any counselling facilities",
would come before,
"the opportunities for the parties to take part in mediation".
Clause 11(2)(c) states:
"whether he has given that party names and addresses of persons qualified to help".
We should like to reduce the following three references to two, simply because where it states,
"names and addresses of persons qualified to help— (i) to effect a reconciliation",
which is to be distinguished from the provisions which relate to the
"names and addresses of persons qualified to help … (iii) by counselling",
we think that that is muddling. We should like there to be one clear reference to, "people who are qualified-to give marriage counselling". Marriage counsellors are concerned with reconciliation. They are the properly approved bodies and we feel that it is muddling at that point to have three references rather than two. I very much hope that the noble and learned Lord the Lord Chancellor will be sympathetic to those attempts to make the Bill more precise on that point.
The Lord Bishop of Liverpool: Before the noble and learned Lord replies, perhaps I may say how strongly we support what the noble Baroness, Lady Young, said. I refer particularly to Amendment No. 32A which relates to the statement to be made by a party.
Clause 5(2) states,
"it must also state that that party— (a) is aware of the purpose of the period for reflection and consideration".
The noble Baroness suggests that we should leave out the words "reflection and consideration" and insert instead "reconciliation and mediation". The noble Baroness was modest about the wording but I am sure that the Government will want to take the amendment away and think about it. I believe that the phrase "reconciliation and mediation" is better than the phrase "reflection and consideration" which appears in the Bill because "reflection and consideration" is very broad whereas in the context of the Bill both "reconciliation" and "mediation" have particular meanings. I believe that there is firm support for that on all sides of the Committee.
Of course, there would be some cost implications if marriage counselling and counselling with a view to reconciliation were to appear on the face of the Bill, but the noble Baroness was right to remind us of the huge cost of divorce and of the fact that putting some money into prevention would save a great deal.
Lord Irvine of Laing: I am grateful to the noble Lord, Lord Meston, for indicating that he will postpone discussion of his Amendment No. 54 until I am called upon to move Amendments Nos. 40 and 55. It is just one out of the many bizarre features of the groupings with which we are faced that his Amendment No. 54, which covers the same subject matter as my Amendments Nos. 40 and 55, should have been grouped with the amendments we are currently considering and not with Amendments Nos. 40 and 55. I am grateful to him for leaving discussion of his Amendment No. 54 until later.
Lord Simon of Glaisdale: There has been a good deal of confusion about the terminology of the matters with which we have been concerned. That has not been the fault of the principal speakers in Committee, who have been completely clear, not least the noble Lord, Lord Irvine of Lairg, in his speech on this amendment.
I am inclined to think that it would be better if the terms we use here were statutorily defined because some are overlapping. Conciliation is an overlapping concept. Counselling to some extent is an overlapping concept. What I believe all Members of the Committee wish to see is an opportunity for reconciliation—a process of mediation. I agree that our discussion would be better if postponed.
Although reconciliation must be entirely voluntary, I differ from some Members of the Committee in not holding the same view about mediation. Reconciliation is the first concept. We all desire to see that in the sense of helping the parties to restore their relationship, one to another, and therefore also to their children.
As for mediation, I understand that to be an alternative, or preparatory, to adjudication, rather than, as the noble Baroness put it on an earlier occasion, the
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parties engaging adversarially in conflict before the judge. The mediator can help them resolve their differences. It is the unresolved differences which would go to the judge.
The third concept is counselling. Although it is an overlapping concept, we should bear in mind that counselling may be needed independently to reconcile the parties to the predicament in which they find themselves with the crisis in their marriage and possibly its termination. Parties can suffer severely, and traumatically, when they come to consider the fall-out of a divorce, or indeed of a separation; the effect on the children; and the financial effect. Counselling can help particularly at that stage. That is a late stage.
The noble Baroness, Lady Faithfull, mentioned that in Scotland the reconciliation agent shares an office with the mediator. That is very important. When we were envisaging the family court, we had in mind that it would be in two parts, a welfare division and a judicial division, rather like the Conseil d'Etat in France. The welfare division would have agents to help in reconciliation, in mediation and in counselling, all sharing the same outer office. The difference would be that counselling and reconciliation, I entirely agree, must be voluntary.
I happen to think that mediation need not be, indeed should not be, because it is an alternative to adjudication. However, I wish to follow the advice of the noble Lord, Lord Irvine, and postpone my arguments on that to a more appropriate occasion. I believe that we need to have the terms defined, otherwise not ourselves but many outside will continue to confuse mediation with reconciliation, conciliation and, indeed, counselling.
9.45 p.m.
The Lord Chancellor: Perhaps I may say to the noble Earl, Lord Perth, that, although in the Bill as originally proposed the matter of marriage support services was not directly addressed, I explained that, with the agreement of colleagues, I had set up an inter-departmental working party to look at it. One of the results has been that I have proposed Amendment No. 162, which is intended to enable the Lord Chancellor, with the approval of the Treasury, to make grants in connection with the provision of what we have called marriage support services, research into the causes of marital breakdown and research into ways of preventing that. That is intended to apply outside the ordinary matter of divorce.
I agree with the noble Earl, Lord Perth, that the sooner help can be asked for the better. However, that depends on the parties asking for it. It would not be right for anyone to go around asking people whether their marriages were in crisis. People need to come for help and we are investigating the spread of that help, the extent to which it is known about and what can be done to make it better known.
As regards the principle of the amendment moved by my noble friend Lady Young, I am entirely in support of the view that everything we can do to assist reconciliation should be done. One of the problems that

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I have is that I believe it is difficult and unwise to separate out the period into lengths of time for reconciliation and for other things. I have attempted not to include mediation in the Bill on that basis either, but to talk about a period for reflection and consideration.
It is suggested that those words can be improved upon, but it is important that there is one period. I believe that an effective aid to reconciliation is the kind of consideration that arises out of mediation when people are facing the future. Perhaps I may make that point good. The situation is made clear in Amendment No. 46, standing in the name of my noble friend Lady Young and the noble Earl, Lord Perth. It states:

"(a) first a period of 6 months to reflect on whether the marriage can be saved; and if it cannot,

(b) a subsequent period of 12 months to consider what arrangements should be made for the future".

My point about that, is that in a sense, it suggests that at an earlier stage the conclusion has been reached that the marriage cannot be saved. I am contemplating a later stage at which that point would be reached, rather than concluding that it cannot be saved, I wish to leave that point open for as long as possible. That is the problem about separating out the two aspects.
It is extremely important that both should be in contemplation for the whole period, because sometimes at the very last minute, when the reality of the future is seen, reconciliation might take place. Therefore, I am very much in favour of emphasising reconciliation as an important part of that period but I think that it is unwise to separate out the period as though there were a period for reconciliation and then, if that does not work, a period for mediation.
My view is that mediation requires to be by consent. It may be that my noble and learned friend will wish to return to that later. But at least the sort of mediation that I have in mind is not backed by compulsion. If there is an element of compulsion, then it is the court that I have in mind for that.
Lord Elton: Before my noble and learned friend leaves the point of mediation versus conciliation, perhaps he will tell us whether there will be, either in orders or in some corner of the Bill which has escaped me, any obligation on the mediator to put before the parties encouragement to enter into conciliation?
The Lord Chancellor: Of course, the purpose of the information session right at the beginning, before any process is embarked upon at all, is to give full information about reconciliation and the aids to reconciliation in the form of counselling.
The right reverend Prelate said that he would like that to be emphatically marriage counselling. We shall hear more about that later. Obviously marriage guidance counselling is included but there may be other types of counselling, more specific counselling which may be relevant. For example, a bereavement may require counselling. Many Members of the Committee may know of a situation where a tragic bereavement of a child has caused a great difficulty in the marriage. In such a case, it is not specifically marriage guidance
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but guidance as to how the parties can cope with the bereavement which may assist the marriage to carry on. But that is a minor point.
But such provision arises in the information session. There are later amendments, not in this group—and that is saying something because it is quite a large group—which deal with the question of whether a code of practice should be enacted.
I am not in the business of trying to regulate the professions. I believe that on the whole, professions should be self-regulated except, of course, where matters affecting other interests are concerned. It is right that the mediation profession should develop its own methods and standards. But the principal provisions in relation to mediation in the Bill are concerned with its funding by the Legal Aid Board. Subject to what may be said later, I believe that it is possible to have indications in a code as regards what we should expect of mediation before the Legal Aid Board could fund a particular type of mediation service. It would require to attain certain standards. That would be consistent with the view that the professions should not be regulated in detail by the Government.
Baroness Seear: The noble and learned Lord has said that he is very much in favour of conciliation, but of course it does not come cheap. Will the money be available to help people have access to such conciliation? That point is not very clear in the Bill.
The Lord Chancellor: So far as concerns money, I have pointed to a clause which I am seeking to insert in the Bill by way of amendment which would allow me to make grants in support of the provision of marriage support services. The precise amount of such grants will obviously be determined from time to time by reference to the effectiveness of the services. As has been said, if marriages can be saved, that is likely to he effective although it may not be immediately apparent. However, that is a matter to be considered. Obviously, the precise level of funding that will be required is a matter which will need to be considered from year to year in the light of the special situation.
In Amendment No. 162, I am asking Members of the Committee to insert in the Bill a clause which would authorise the Lord Chancellor to fund such services by grant, with the approval of the Treasury. As my noble friend mentioned, it was once a matter for the Home Office but it is now the responsibility of the Lord Chancellor. Whether that is an improvement is a matter for debate. I see that my noble friend wishes to intervene. I give way.
Lord Elton: I was waiting to interrupt but, as the opportunity has now arisen, perhaps I may ask my noble and learned friend a question. When he is considering the issue before the next stage, will my noble and learned friend recall the number of occasions upon which he and other people have said that, during mediation, people will discover what the future may hold and may wish to draw back from it? Surely that is the point at which conciliation ought to come into effect. I believe that the mediator ought to have a duty to point

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that out at the earliest stage. He can see the fracture in the ice floe first and, therefore, would be able to encourage the parties to remove it.
The Lord Chancellor: That is what I was seeking to say. If it is right to have a code—and that is something which we will have to discuss later—then that is a provision which could he included. I do not believe that that is the kind of thing that one would put on the face of the legislation.
As I was saying, the Home Office did fund marriage guidance through Relate and the other organisations which have been mentioned. That responsibility was transferred to the Lord Chancellor's Department at about the time that the White Paper was issued but no statutory power to that effect was granted. That remains the case unless and until something along the lines of Amendment No. 162 becomes part of the law.
What I have said deals, I believe, with Amendments. Nos. 21A to 21C, 32A, 33A, 35B, 37A, 38A, 38B, 39 and 39A. Amendment No. 46 is the one I particularly referred to, but the principle runs through the earlier amendments. Amendment No. 54 has been postponed until later; Amendment No. 55A is again to the same effect.
There is an amendment in the grouping tabled under the name of the noble Earl, Lord Russell, which speaks of domestic violence. I am not sure that any special mention needs to be made in that respect. Then there are several consequential amendments. I shall move Amendment No. 59 later. It proposes to insert the phrase "received by the court" instead of the word "made", thus making it clear that the document is to be lodged.
The noble Baroness, Lady Hamwee, also has an amendment which she is not following up. That brings me to the amendments of the right reverend Prelate the Bishop of Oxford, to which he referred. The precise order in which these matters are put forward is a matter of some importance. I am interested in the way in which the right reverend Prelate has supported these amendments. In passing I have already asked whether it is right to restrict this matter to marriage counselling in the strict sense, because I can see that other types of counselling might, in some rather special circumstances, be relevant. Therefore I wish to ensure that all those who may be qualified to help effect a reconciliation could be covered under this clause. Marriage support services or something of that kind may be possible.
I am happy to consider the matter further and perhaps the right reverend Prelate will bear in mind the special types of counselling that I mentioned and consider whether he thinks that some further changes are required in that area. I should be happy to discuss that kind of matter without taking up the time of the Committee, because I think we are probably fairly well agreed as regards what it might cover. I might therefore be able to come forward with a better amendment at Report stage than if I were left to my own devices.
I have already spoken briefly to Amendment No. 128. I believe that the information session is extremely important in this connection. If the information has been given effectively, I would hope that the parties would
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not forget it as they discussed the matters that arose between them, and that the scope for reconciliation would continue.
10 p.m.
Baroness Young: Once again I thank my noble and learned friend for his detailed reply. I am bound to say that at first I found it disappointing because I felt that he had not really taken on board what has been a major concern on all sides of the Chamber as regards the importance of reconciliation. If I have understood him correctly, he is against the separation of periods of mediation and reconciliation and feels—so far as I can understand it—that there ought not to be time limits on either. However, if that is his view, it adds materially to the strength of the argument for extending the period of a year; otherwise everything will have to be dealt with within a short period of time. After all, we are now at 22nd January. If that is when the clock starts, it will stop on 22nd January 1997. That is a short period in anyone's life for all these things to be considered. We need to think about that.
I hope that, when we reach the next stage of the Bill, my noble and learned friend will have filled out his thoughts to a much greater extent on a number of these issues, because, if I may say so, we are being asked to take on trust an enormous number of matters. I regret to say that experience of parliamentary life has taught me one thing; namely, that if one does not see the small print at the time one lives to regret that considerably afterwards. Nothing could be truer as regards this particular Bill.
My noble and learned friend has already said that he will conduct some pilot schemes on the information session. That is extremely important. We do not really know anything about who will conduct these sessions or what will emerge out of them. We do not really know anything much about the whole process of mediation except that one cannot make people go to mediation if they do not want it. We are being invited to take all these matters on trust. We need to see more detail. I am, of course, entirely in favour of the subsequent amendment, Amendment No. 162, of my noble and learned friend, which concerns research into marriage breakdown and grants to organisations to support marriage.
The right reverend Prelate the Bishop of Oxford will be pleased to know that I support his amendments, which I believe are valuable. Again, we need to know who is to do the counselling and what they will say when they give the counselling. I have supported what appeared to be sensible actions but which in the end did not square with what anybody expected. Therefore, it will be interesting to have more detail on that aspect.
The question of the code of practice on mediation seems to have arisen this evening for the first time. I have no objections in principle to such a code of practice, but it would be nice to know what it will contain.
I have two serious points to make. There is a need for reconciliation. I am flattered that anyone should think that I am being modest about the amendments. I am not

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a lawyer. I said to my noble and learned friend at the start of the proceedings that I would put down a number of amendments covering the same point because I hoped that one of them might be acceptable to him, or that if none of them were he would come forward with an amendment of his own. That would have been ideal.
I shall not argue about whether there should be a separate period for reconciliation and whether it should come first or later. We want to know how it will work. I am still very unclear about how mediation suddenly becomes reconciliation, which seems to be the view in the Bill. We shall need a great deal more information before the next stage of the Bill.
One point which emerges from this discussion is that if there is not to be a separate period for reconciliation, which is what I should like to see, that adds weight to the argument for extending the period of a year. I believe that most people are agreed that it ought to be extended. My noble friend Lord Perth made that point clearly, as others did earlier.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21B and 21C not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 22:
Page 2, line 37, leave out ("the appropriate declaration") and insert—
("a declaration by the party making the application that—

(i) having reflected on the breakdown, and

(ii) having considered the requirements of this Part as to the parties' arrangements for the future,

the applicant believes that the marriage cannot be saved.").
The noble and learned Lord said: I spoke to Amendment No. 22 with Amendment No. 18A. It makes clear what I wish this provision to state. The amendment is coupled with the fact that I have given notice that I do not wish Clause 6 to stand part of the Bill because I have altered Clause 4 to take account of that provision. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 23 to 25 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 26:
Page 2, line 44, leave out from ("statement") to end of line 7 on page 3.
The noble and learned Lord said: I say at the outset that this is a probing amendment, moved in a spirit of genuine curiosity, although the Committee may observe that a probe can sometimes be an instrument of excision.
Our curiosity centres on the relationship between the statement and the application for an order of divorce. Clause 4(3)(a) provides that a statement may not be the basis for an application for divorce if the parties have jointly given notice withdrawing it. That is understandable. If each party has agreed not to rely on that statement then neither party should be permitted to say, "I didn't really give up my right to rely on the statement, I had my fingers crossed". That does not disturb us.
The subsection then goes on to say in paragraph (b) that even if the parties have given no such joint notice, the statement may not be the basis of an application if more than six months have passed since the earliest time when an application could have been made. I observe, first, that there have been those who say that that appears to admit of some ambiguity. Does it mean that the statement cannot be made the basis for an application more than 18 months after it was first made—that is, when it could have been made had there not been some impediment? Alternatively, does it mean that it cannot be made the basis for an application more than six months after all the requirements of Clause 2 have been satisfied? For my part, the natural, literal meaning seems to be the latter. I assume that what the provision means is that a party wishing to proceed to divorce will have been able to do so and there will have been nothing to compel them to wait for the further six months.
I understood what the noble and learned Lord the Lord Chancellor said in an earlier debate as to the need, where possible, to finalise the situation. Reflection cannot go on for ever, and uncertainty is not in the interests of anyone, least of all the children. But let us suppose that both parties need just a little more time for reflection, either in order to reflect on the arrangements for the future or to consider whether they want a divorce at all. They would have breathing down their necks the constraint that if they deferred their application a day beyond the statutory limit, they would need to file a further statement and to wait a further period of 12 months. It is not difficult to imagine circumstances which might cause them to wish for a little more time in order for some relevant situation to crystallise.
In an earlier debate, the noble Lord, Lord Meston, gave some examples. The arrangements may depend upon whether a child of the marriage obtains a particular employment requiring the family to stay in a specific area or obtains admission to a specific school or university.
The provision imposes what may he a severe sanction. If the purpose is to encourage finality, if it is clear that no reconciliation is possible and the purpose is, for example, to protect the children from further uncertainty, then it may achieve precisely the opposite effect. The very child whose needs are in question could be visited with another year of uncertainty. As was observed in an earlier debate, when you are a child 12 months can seem a very long time.
It would be helpful if the noble and learned Lord the Lord Chancellor could tell us the reasoning behind the provision. Members of the Committee may then be able to judge whether the purpose is so important that it is worth the undoubted disadvantages of so rigid a provision. I beg to move.
Lord Meston: It may be almost churlish to suggest that, rather than over-grouping, there has been a little under-grouping. I believe that I can usefully say what I need to say about Amendment No. 27, which concerns the same provisions in Clause 4 as the noble and learned Lord, Lord Archer, has just addressed.

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Clause 4(3) provides that:
"An application may not be made under section 2 … if … a period of more than six months has passed since the earliest time when an application for a divorce order could have been made by reference to the statement".
It is hard to understand the justification for this blanket prohibition. As the noble and learned Lord suggested, it may not be easy to define in some cases exactly what is the earliest time that an application for a divorce order could have been made. If the parties have not yet managed to reach agreement but are still trying to do so, or the applicant is relying on the other spouse's obstructive behaviour as a reason why financial arrangements have not been made, does the 12 months run from the date of the application, or only when agreement is reached, or when the applicant decides to give up trying to reach agreement? The issue of when exactly a written agreement was reached is likely to be a very fruitful source of litigation.
While it is obviously undesirable that an application should be made years after it could have been—particularly if there has been a reconciliation or attempted reconciliation—it is hard to see why a couple who have not reconciled and have sorted everything out, but who fail through some inadvertence or apathy to go on to issue the application for a divorce, should go through the hollow charade of a further 12 months' reflection and consideration. Therefore Amendment No. 27 would provide that the period should he 12 months from the date when the period of reflection ended, with the court having a discretion to make an order after that date if it is satisfied, on a joint statement by the parties, that,
"there has been no reconciliation … [that] each accept … the arrangement, which they made at the time … or those arrangements are the subject of a subsisting court order",
and that they should continue to regulate their future under those provisions. It is also necessary that there should have been no relevant child born and there has been no other significant change of circumstances that would make it inappropriate for the divorce to be ordered by reference to the original statement. This is a matter for further thought and clarification, as the noble and learned Lord, Lord Archer of Sandwell, suggested.
10.15 p.m.
The Lord Chancellor: As to the meaning of this clause, the earliest time an application for a divorce order can be made is provided for by Clause 7(1); namely, when the "period for reflection" has passed. Clause 7(1) defines that phrase precisely. It states:
"Where a statement has been made, a period for the parties … to reflect … to consider … must pass before an application for a divorce order or for a separation order may be made by reference to that statement".
That is the phrase that is intended to be picked up in Clause 4(3)(b):
"the earliest time when an application for a divorce order could have been made by reference tc the statement".
That is the intention of the clause. Now to turn to the reality—
Lord Archer of Sandwell: I am most grateful to the nohle and learned Lord for giving way. It seems that my
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construction was wrong. I had assumed that the earliest date when an application could be made was when all the requirements of Clause 2 had been satisfied. Presumably, even if some of the requirements have not been satisfied, the six-month period runs.
The Lord Chancellor: Yes, that is the intention. It is reasonably plain, with all respect to the noble and learned Lord; the phrase is exactly the same one. But in a sense it makes more difficult the justification of the period on that basis.
The justification for "a period" is that it is important that proceedings are not allowed to drag on interminably, causing uncertainty for spouses and their children. The notice that says the marriage has broken down is intended to be an important one, and to be under consideration. It would not be right to allow that to drag on interminably. Nor would it be right that one party could hold, as it were, a Sword of Damocles over the other for an indefinite period just to enable one of the parties to rush for a quick divorce in the future, having laid the ground work, as it were, way back in the past and left the matter open to rush forward on the basis of such a statement as this without a time limit.
On the other hand, precisely what the time limit should be is a matter that requires consideration. That is the idea behind Amendment No. 27, tabled by the noble Lord, Lord Meston, and also the amendment in this grouping by my noble friend Lady Young, Amendment No. 27A which reads:
"leave out ("six") and insert ("eighteen")".
It may well be that the period that we put forward, a total of 18 months, is too short. Certainly, so far as I am concerned, I believe that there could be some intermediate position. Amendment No. 27A goes for 18 months and we suggested six months. Amendment No. 27 from the noble Lord, Lord Meston, goes for 12 months. That seems to me to be an intermediate, and therefore possibly attractive, period on which to settle.
The principle of requiring some period is, I feel, reasonable. I also put in the Bill the power to extend the period in the light of experience. It has been suggested that that should be done by instrument in a slightly different form from the one that I proposed and I do not object to that suggestion. But, in the light of the considerations which I have received since the Bill was published, I believe that a period in the order of 12 months is appropriate here. If noble Lords allow me, I shall certainly consider bringing forward a government amendment to give effect to that at Report stage.
Lord Archer of Sandwell: The noble and learned Lord cannot say fairer than that. Perhaps I may say one word about the construction of this provision. I understand that it follows the wording of Clause 7(1). I should have thought that at least a possible construction of the words:
"the earliest time when an application … could have been made",
means the earliest time when all the necessary conditions have been fulfilled. Indeed, that was how I did construe the words. It may be that I was more than usually confused when I read the passage but it is a confusion shared with other members of the legal

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profession. It may be that the noble and learned Lord would like to reconsider this point before a great deal of time and money has been spent on litigating about it.
The Lord Chancellor: Most certainly. The noble and learned Lord said that he had read the passage in that way and I certainly wish to keep the proceedings as free from litigation as I can. As the noble and learned Lord knows well, it is not possible to be categorical about that but I shall certainly do my best.
Lord Archer of Sandwell: I am most grateful for that response. As to the merits of what we seek to achieve, I accept that there has to be some limit on the period before the application is made. One could not allow a statement to drag on for years and find years later someone waking up and saying, "I think I shall make an application for a divorce order." If the noble and learned Lord were minded to accept the suggestion of the noble Lord, Lord Meston, certainly I should not seek to dissuade him. This is clearly a matter on which we might all reflect further. I am most grateful for what the noble and learned Lord said. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Baroness Young Baroness Young moved Amendment No. 27A:
Page 3, line 1, leave out ("six") and insert ("eighteen").
The noble Baroness said: In moving this amendment, I just want to ask a question for clarification. I recognise that my noble and learned friend suggested that in consideration of Amendments Nos. 26 and 27 he could possibly extend the time from 6 months to 12 months. I hope that I am correct about that. I beg to move.
The Lord Chancellor: Yes, indeed.
Baroness Young: In fact, my amendment, which suggests 18 months, would have the effect of extending to 30 months the maximum time to obtain a divorce based on one statement. I hope that I have the arithmetic right and that by suggesting 12 months instead of six, the period would be reduced to 24 months. So we are talking about a period of two years. I hope that I have understood that correctly.
The Lord Chancellor: Indeed.
Baroness Young: I thank my noble and learned friend. It is quite late at night. In following all those figures, I wanted to make sure, as they refer to more than one clause, that we had got them straight. I am pleased that the period of time has been extended. To that extent I welcome the indication. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 28:
Page 3, line 7, at end insert—
("( ) Any statement made under this section shall specify whether the maker or makers of the statement wish to apply for a divorce order or a separation order.").
The noble and learned Lord said: Amendment No. 28 raises a simple point but one which occasions some anxiety to practitioners. Indeed, it caused the Law Society to express some concern. As the Bill is drafted, the statement does not need to specify whether the maker envisages a divorce or a separation. That is a matter to which your Lordships adverted in an earlier debate. Indeed, the noble Lord, Lord Meston, pointed out that the Bill does not seem to make clear the precise effect of a separation order. In the days when I practised under the old divorce jurisdiction—admittedly long ago—it used to be said that the effect of a separation order was that the parties could live apart without either being guilty of desertion. However, the concept of desertion is passing into history. As the noble and learned Lord, Lord Simon, indicated, the precise effect of a separation order may be the subject of a debate on Clause 18.
Amendment No. 28 is directed to a rather different question. The statement really initiates the proceedings as in the past a petition did or, in other contexts, a writ may. Presumably an important part of its function is to give notice to the other partner that the proceedings are about to begin and that that is what the maker of the statement intends to say to the court. In response to the noble Baroness, Lady Elles, in an earlier debate, the noble and learned Lord the Lord Chancellor explained that there were to be provisions for ensuring that it reached the other partner and that that was indeed part of its function.
An important piece of information necessary to enable the other party to act appropriately is the remedy that is being sought. Without knowing what remedy the other partner has in mind, it is not easy to see how a party can decide whether to oppose the application, how to reflect on arrangements for the future, or how to react at all. The amendment does not permanently foreclose the options.
Clearly, the Bill envisages that a separation order may be converted into a divorce order. It may even be appropriate, though the Bill does not actually mention it, to permit of some flexibility by amending the statement if the court considers it just and convenient to permit it. That may well be what is in the mind of the noble and learned Lord in relation to the regulations. Surely any document initiating legal proceedings ought to make clear what relief is at present in contemplation. That is the purpose behind the amendment. I beg to move.
The Lord Chancellor: The intention behind the Bill was to leave open the options to the parties for as long as possible. We are attempting to produce a situation in which every possible option remains open to the parties in the hope that, instead of going ahead to any order, they may be able to repair their marriage. For that reason we do not require them to specify in the original document what it is that ultimately they may want. As I said, the fervent hope is that they may not want anything at all and that the follow-up will not occur.
In moving the amendment, the noble and learned Lord indicated that, if the amendment is accepted, there may need to be scope for allowing an amendment to the

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original statement. If the philosophy behind the amendment is accepted, that would not be required: the matter would be left open. If that was so, the parties would know that either a divorce order or a separation order would be competent in the end, if matters went that far, but that they may not. So far as concerns the consequences in relation to the parties, they would have to decide that certainly by the time they came to apply for a final order. But this matter might well be raised in discussions between them in the period in question. That is the reasoning on which we have not required that they should specify which of the two ultimate orders they might seek.
10.30 p.m.
Lord Archer of Sandwell: I am grateful for that guidance from the noble and learned Lord. I cannot say that I am wholly persuaded. One can envisage a situation where, if the party filing the statement says,"I am asking for a judicial separation", the other party may say, "I agree that there has been irretrievable breakdown. I won't put any unnecessary obstacles in the way"; whereas if there were a possibility that there might be an application for divorce, that partner might take a very different view.
The Lord Chancellor: It occurred to me as the noble and learned Lord was speaking that we might be able to have a middle course in which it was open to the parties to specify. At the moment it is not intended that they should specify at all. It may be that it would be right to leave it open to them to specify without requiring them to do so. That option might be worth considering.
Baroness Elles: I am very interested in what the noble and learned Lord, Lord Archer of Sandwell, said and in what my noble and learned friend has now said. Surely it would be quite useful to have some kind of middle way—for instance, in the case of those who are Catholic who do not have divorce but would want a separation—so that there is the possibility of one or the other being inserted in the Bill in order to open up one or two of these matters which could cause a difficulty for the acceptance of such a statement.
The Lord Chancellor: For my part, I am rather attracted to that as a possibility. Certainly, if a person were forced to say in advance, it might be that it would be difficult for them. On the other hand, if a difficulty of this kind is envisaged, one of the parties might be quite willing to try to assuage that difficulty by indicating from the outset he or she was interested only in a separation. That is certainly a possible middle way which the noble and learned Lord might contemplate.
I do not have very strong views about this. The general philosophy I have tried to follow is to keep every possible option open for as long as possible in the hope that ultimately none of them would be taken up.
Lord Archer of Sandwell: I am grateful for both of those interventions. I can see the merits in the middle way and it might be something on which we could all reflect. I do not think this is the occasion to be dogmatic in any of these matters. If there really is a prospect that
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by keeping open the options the party filing the statement may ultimately decide not to take up any of them, that must clearly be a bonus. In that state of the argument, and for the purpose of further reflection, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4, as amended, agreed to.
Clause 5 [Statement of marital breakdown]:
[Amendment No. 29 not moved.]
Lord Meston Lord Meston moved Amendment No. 30:
Page 3, line 11, leave out ("If') and insert ("Whether").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 31, 32 and 33. It is also grouped with Amendment No. 34 in the name of the noble and learned Lord, Lord Simon of Glaisdale, and with three further amendments of mine, Amendments Nos. 36, 37 and 38, although I hasten to say that I recognise that the last three are almost certainly otiose if Clause 6 is not to stand part of the Bill. In any event, the point is the same as the one I seek to make in Amendments Nos. 30, 31, 32 and 33.
I should also mention that there is a mistake in Amendment No. 30. The word I seek to insert is "Where" rather than "Whether". I do not know where the mistake crept in. I suspect that it was my fault, for which I must apologise.
I should also indicate very simply that these are simply drafting amendments and an attempt to dispense with subsection(3) of Clause 5 by combining the two subsections together. As it stands, there is a provision in Clause 5(2) for the way in which the statement made by one party is to be constituted. In subsection (3) there is a provision dealing with a statement made by both parties. I wonder why that is necessary. I suggest that it would be simpler to combine the provisions into one subsection as my amendments seek to achieve. The result would be that the first line of Clause 5(2) would read:
"Where a statement is made by one or both parties it must state that that party or each of them",
and so on. I hope in that way to do away with the necessity for Clause 5(3) altogether. I beg to move.
Lord Simon of Glaisdale: I believe that Amendment No. 34 is grouped with this amendment. In speaking to it I venture first to protest as strongly as I can that on a Bill of this kind the Committee should be kept sitting well past half-past ten. This is probably the most important Bill of the Session, if not the most important of this Parliament. When we debated the Rippon Report on the sittings of the House, we were promised that we would not be kept very late at night. It is really a parliamentary indecency to be discussing a Bill of this sort at this hour. There is nobody on the Back Benches of the official Opposition and as far as I can see there is nobody on the Back Benches of the Liberal Democrats. Although there is a sprinkling of noble Lords on the Conservative Benches, the House is by no means representative. We have only one right reverend Prelate still present.
Amendment No. 34 is in two parts. It says:

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"A statement must also state— (a) the ages and relevant circumstances of any child of the family".
Paragraph (b) is no longer relevant. It refers to an earlier amendment which I moved and did not press to a Division. It seems to me that a statement should contain information about the children. I should have thought that that would be needed by anybody attempting reconciliation, certainly by a mediator, and by the court if the matter has to go to adjudication. After I have heard my noble and learned friend and Amendment No. 34 is called I shall consider whether to move the amendment formally.
The Lord Chancellor: There are some government amendments in this group. As we received it, the drafting amendment appeared to have a different effect from that which the noble Lord intended. It might therefore be a waste of time for me to say what we thought about it as we understood it.
Turning to paragraph (a) of the amendment in the name of my noble and learned friend Lord Simon, I would expect the rules to contain a requirement in relation to the relevant children and possibly more detail about their circumstances than would be appropriate on the face of the Bill. I hope that my noble and learned friend will accept my assurance that the regulations about the form of statement will include such information, with possibly more detail about the relevant circumstances than is normal on the face of a Bill.
This group contains the Motion relating to my intention to oppose Clause 6. I have already spoken to that in relation to Amendment No. 22.
I speak now to Amendments Nos. 160 and 161 which seek to clarify the drafting. The word "or" at the end of Clause 17(3)(a) should not be there, while the provision to the effect that marital proceedings are both divorce proceedings and separation proceedings at a time when no application for an order has been made was not
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included, although it appeared in the earlier printing. There was an error on the final print, which is why I need to correct it now.
I believe that I have covered all the amendments that have been spoken to in this group. I shall move my amendments when we reach them in due course.
Lord Meston: I am glad not to have been told what the noble and learned Lord the Lord Chancellor thought of my amendment in its mistaken form on the Marshalled List. It was designed only to achieve a form of drafting conciseness which I suggest is lacking on the face of the Bill, but now is not the time to develop that point.
The amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, enabled the noble and learned Lord the Lord Chancellor to make the point that, as under the existing procedure, a statement of arrangements for the child or children will be lodged with the court. Under the existing procedure, that is still an important document but it is a separate document from the originating process. With that, I beg leave to withdraw Amendment No. 30.
Lord Simon of Glaisdale: Before the amendment is withdrawn, perhaps I may say that I am very well content with the assurance given by my noble and learned friend, who has said that he will make a rule covering the substance of my proposed amendment. That seems entirely appropriate and I express my thanks to him.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 34 not moved.]
Clause 5 agreed to.
Baroness Trumpington: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at a quarter before eleven o'clock.