Lords Sitting of 23 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.

Drivers' Eyesight Tests
Lord Strathcarron Lord Strathcarron asked Her Majesty's Government:
Whether, in the interests of road safety, they have plans to introduce eyesight tests for drivers.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, all new drivers already have to take an eyesight test. Car drivers must take the number plate test as part of the driving test; lorry and bus drivers must, in addition, pass an eye test before obtaining or renewing their licence. We have no plans to introduce additional mandatory tests.
Lord Strathcarron: My Lords, I thank my noble friend the Minister for his reply. It was not unexpected. Is he aware that a recent survey showed that 3½ million drivers would fail the legal eyesight test and others have blinkered vision and cannot see at night? Does he agree that perhaps more people may be killed or injured on the roads by people who cannot see than by people who are over the limit? Because bad eyesight is respectable and being over the limit is not, the Government do not appear to wish to do anything about it. It is totally irrelevant so far as I am concerned whether I am run over by someone who cannot see or by someone who is over the limit.
Viscount Goschen: My Lords, of course, it would be entirely relevant to the House if my noble friend were run over, particularly on the occasion of his birthday. We are aware of the recent survey. We have asked for further information so that we can conduct our own assessment of it. It goes against the results that we had from earlier research by the Transport Research Laboratory, which suggested that the problem was not so widespread as the survey suggests. It is extremely difficult to make comparisons between drink driving and possible eye disorders. Drink driving is a very serious situation indeed and we have taken many strict measures to address that problem. We simply do not have the information that my noble friend would like on the degree to which eye conditions affect accidents.
Lord Clinton-Davis: My Lords, can the Minister say whether the survey to which he referred will give us any additional useful information in that direction? What is the timescale for the survey? When does the Minister expect to receive its results? Perhaps we on this side of the House may join in the felicitous birthday greetings that the Minister offered.
Viscount Goschen: My Lords, the survey has already been carried out. The results have already been made
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public, but we are awaiting the detailed bulk of the research so that we can make our own independent assessment of that. If that leads us to any new conclusions, we shall make them public.
Baroness Macleod of Borve: My Lords, is my noble friend the Minister aware that the older one gets, the more one's eyesight is likely to fail and that those knowledgeable about eyesight say that over the age of 30 people's eyesight gets measurably worse every five years?
Viscount Goschen: Yes, my Lords, I understand that the experts say that there is a strong correlation between age and eyesight problems. That is 'why it is very important for all drivers who feel that they might have a problem to have their eyes tested on a regular basis and to take the appropriate action.
Lord Mottistone: My Lords, is my noble friend aware that some 10 years ago I had a Bill before Parliament which invited the Government and the House to agree that there should be tests every five years from the age of about 50 onwards? Is he further aware that the Transport Research Laboratory has continually resisted having a more up-to-date form of test than the 30-yard test because it says that nobody can prove that it is not good enough? Does he agree that there is a lot of evidence that we have not collected? Will my noble friend take this point very seriously and not be put off by scientists who do not have enough time to do the other things that they want to do?
Viscount Goschen: My Lords, we take this issue extremely seriously indeed. With some 30 million drivers, the burdens of setting and continuing regular mandatory tests and of enforcement would be very substantial indeed in the absence of firm evidence that there would be a corresponding increase in road safety. As for the test that is given to car drivers, the Royal College of Ophthalmologists considers that the test, which requires the ability to read a number plate in good daylight from 67 feet, with glasses if worn, is an appropriate measure of eyesight and gives a good indication of whether one's eyesight is sufficient for driving purposes.
Lord Bruce of Donington: My Lords, as one who is quite capable, even in advanced years., of passing the existing eyesight test, I ask the Minister whether he is aware that it would be of very great assistance to all drivers, including those who have perfect sight, if the police were to enforce the law in regard to carrying lights at night by cyclists? If they have no lights, they are very difficult to detect when one is driving, however good one's sight.
Viscount Goschen: My Lords, making sure that bicycles are properly lit and that cyclists behave responsibly is an important issue. All road safety matters are taken seriously by the police. But the issue is slightly different from that of visual ability.
Lord Stoddart of Swindon: My Lords, did the Minister see the article by Christopher Booker one week

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ago last Sunday in which he stated that the new eye test being proposed by a European directive will put many lorry drivers off the roads and thus affect their livelihoods? Can the Minister comment on that?
Viscount Goschen: My Lords, it is true that, with the coming of a second EC driving directive, there will be changes. But the comment in the press—I am not necessarily referring to the specific article mentioned by the noble Lord—has been extraordinary and has over-egged the situation. The main difference from the present requirement is that those drivers will have to meet a minimum standard of vision equivalent to reading the top letter on an optician's chart from three metres away without their glasses, in both eyes rather than one. That would affect very few commercial drivers in percentage terms.
Lord Brougham and Vaux: My Lords, is my noble friend aware that in Spain, where my mother used to live, people over the age of 65 not only have to have their eyes tested but also have to simulate a driving test? Do we have any plans to go down that route?
Viscount Goschen: My Lords, no, we do not. Over the age of 70 a declaration is required that one's faculties are in order and are suitable for driving. However, we do not have a specific test at that age.

Prayer Book: 450th Anniversary
2.45 p.m.
Lord Sudeley Lord Sudeley asked Her Majesty's Government:
What plans they have to commemorate the 450th anniversary of the first Prayer Book in 1549 and, in particular, whether they will encourage the Post Office to issue a commemorative stamp.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, I have passed on to the Post Office my noble friend's request for a commemorative stamp. The special stamp programme is an operational matter for the Post Office and it will make the final decision. The Government have no special plans to commemorate this anniversary.
Lord Sudeley: My Lords, I thank the Minister for that reply. On the matter of the 450th anniversary of the first Prayer Book, will Her Majesty's Government encourage the naming of a railway locomotive after the Archbishop of Canterbury? What consultations will the Government initiate with the Museums & Galleries Commission? Mindful of the way in which, in times past, the Book of Common Prayer has been embraced by Anglican Churches worldwide, what are the plans of both the Department of National Heritage and the British Tourist Authority?
Lord Fraser of Carmyllie: My Lords, in the same way as commemorative stamps are a matter for the Post Office, the naming of a locomotive is one for those engaged in the privatised railways rather than for
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government. As I indicated, we have no special plans to celebrate the anniversary. However, my noble friend may recall that as far back as April 1981 my noble friend the Leader of the House was fervent in his protection of the Book of Common Prayer and my noble friend may wish to engage in conversation with him.
Lord Kirkford: My Lords, will the Minister make a further approach to the Post Office and ask that the commemorative stamp should contain a prayer that the Post Office should not be privatised?
Lord Fraser of Carmyllie: My Lords, as one Presbyterian Scot to another, perhaps I can say that the noble Lord will be interested to know that, if there is to be a prayer for the Post Office, the Church of England is in the process of liturgical reform and the noble Lord may wish to address his observations in that direction.
Lord Renfrew of Kaimsthorn: My Lords, is my noble and learned friend aware that this is the quincentenary year of the College of Thomas Cranmer, the principal author of the Prayer Book? Is he further aware that Her Majesty the Queen will be opening the quincentenary library of Jesus College Cambridge, of which I have the honour to be Master? If there is a possibility of a commemorative stamp in relation to the Prayer Book, will my noble and learned friend pass on to the Post Office the suggestion that an image of the Great Gate of Jesus College might be suitable decoration?
Lord Fraser of Carmyllie: My Lords, my noble friend spelt out his case so eloquently that it is unnecessary for me to pass it on. I have no doubt that his comments will be noted. From time to time stamps commemorate religious themes and noble Lords may be interested to know that next year there are to be commemorative stamps for St. Augustine and St. Columba, but nothing to commemorate the Book of Common Prayer.
Lord Gainford: My Lords, as the Book of Common Prayer seems unfortunately to be eclipsed by "alternative" series, will the Minister note that 1999 is also the first year since 1927 when there will be a total eclipse of the sun visible in Great Britain?
Lord Fraser of Carmyllie: My Lords, my noble friend clearly draws conclusions from the movements in the heavens, although I do not believe that necessarily all of us would reach the same conclusions, but it is certainly to be noted. As I said, my noble friend the Leader of the House may be able to offer some comfort given the protection that he would wish to afford to the Book of Common Prayer.
Lord Peston: My Lords, perhaps I may bring this matter down to earth. Of course the Minister is entirely, right in that this is an operational matter for the Post Office. However, can he tell your Lordships how the Post Office makes this kind of decision? Is the issue of commemorative stamps decided on a commercial basis—namely, what kind of stamp may appeal to collectors—or does the Post Office have a concern, and

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indeed an obligation, to consider what are the important national events that might be commemorated, which relate, of course, to the locus of the Government?
Lord Fraser of Carmyllie: My Lords, yes indeed. Since 1969 the arrangement has been that the decision on the issue of a commemorative stamp is for the Post Office. Indeed, criteria have been established. They are to commemorate important anniversaries; to celebrate events of national and international importance; to reflect the British contribution to world affairs; to reflect the various aspects of Britain and the British way of life; to extend public patronage to the arts and also to fit in with the Royal Mail's commercial targets for philately. The Government are given an opportunity to comment on what is proposed and can certainly, as it were, veto an issue if the particular stamp proposed is considered unacceptable on political grounds.

Mileometers: Illegal Alteration
2.51 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress is being made in reducing the illegal alteration of mileometers in motor vehicles, commonly known as "clocking".
Viscount Goschen: My Lords, in 1992 the Government introduced a voluntary mileage recording scheme, administered by the Driver and Vehicle Licensing Agency, to address the problem of vehicle "clocking". We are currently reviewing the possibilities for improving the procedures in the light of the responses to a recent consultation paper.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for his reply. Did he notice the conviction in Scotland of a crook who admitted 47 offences, and was known to have committed many more, wiping altogether about 3 million miles off the "clocks"? Will the Government congratulate the trading standards departments concerned and the police on their painstaking work and success in detection and in obtaining a conviction in this particular case? Since these criminals are becoming even more cunning and devious, can the Government do any more to ensure that further efforts are made to stamp out the fraudulent deception of the public?
Viscount Goschen: My Lords, this is a very serious issue. My noble friend is quite right to highlight the enforcement effort made by trading standards officers. I understand that in the case to which my noble friend referred, the individual in question was found to have "clocked" about 47 cars. I understand that the figure of 3 million miles is roughly correct. Enforcement must form a major part of the strategy to address this major issue of vehicle "clocking".
Lord Ezra: My Lords, about three years ago I introduced a Bill to strengthen the law in this respect but unfortunately it never reached the statute book.
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Bearing in mind that at that time the Institute of Trading Standards Administration, of which I was president, estimated that the public, the purchaser of secondhand cars, had paid about £100 million more than they should have for vehicles that had been "clocked", can the noble Viscount indicate what the figure is now and whether, in the light of the developments to which the noble Lord, Lord Campbell of Croy, referred, the law might now be strengthened?
Viscount Goschen: My Lords, I do not believe that it is possible to put a precise figure to the question which the noble Lord has raised. The point is that it would be a guess at the very best of times. Suffice it to say that it is a very serious problem indeed and one on which we must make a three-stranded attack: first, to pursue our efforts to record more vehicle mileages at the time of sale; secondly, to make sure that the enforcement is up to scratch; and, thirdly, for manufacturers to continue their efforts to produce odometers which are more difficult to tamper with.
Lord Monson: My Lords, does the noble Viscount agree that one way to curb this crime is for guidelines to be set whereby a conviction would almost always result in a prison sentence, together with an order for substantial compensation to be paid to the victim?
Viscount Goschen: My Lords, it is fair to say that sentencing is an extremely complicated issue. We must have the proper penalties. We must put proper effort into catching the criminals in the first place. I believe that is possibly where the difficulties lie.
Baroness Fisher of Rednal: My Lords, does the noble Viscount agree that this is serious fraud and against the consumers' charter? Does he further agree that it is important that the Government pay greater attention to this matter? It is 12 months since there was a report that this problem was being studied and that action would be taken, but nothing seems to progress. Does the Minister agree that it is important to recognise that trading standards departments have the task of taking people to court, but that the departments are limited by the amount of funds from government? When the noble Viscount says that the authorities are doing all they can, that is very little.
Viscount Goschen: My Lords, that is not the case at all. We have introduced a new system which gathers information on a voluntary basis when vehicles change hands. That must be a major factor in addressing this situation. We must get correct information which can then be disseminated. That is a major plank in our attack on vehicle fraud. Not only is this matter a serious offence but it also contravenes the Trades Description Act. Where evidence is available, trading standards officers take action which results in convictions.
Lord Lucas of Chilworth: My Lords, does my noble friend agree that the potential purchaser can go a long way to protect himself against fraud by buying through a franchised dealer outlet and/or using the services of independent engineers and/or the motoring services to carry out an examination which would reveal such a fraud?
Viscount Goschen: My Lords, that would be one way for a potential customer to gain greater security. However, with private purchasers that is not always possible. We have tried to make more information available. We have pursued our attempts to make more drivers fill in a form, including the mileage, when they sell the vehicle so that that information can then be disseminated and people will have a much more reliable idea of the actual mileage covered. It is an important road safety issue.
Lord Monkswell: My Lords, are the Government aware that there is an annual record of the mileage of cars over three years of age taken at the time of the MoT test? What is the Government's estimate of the cost of recording those figures centrally—presumably at the DLVA—in such a way that that record can be interrogated by the prospective purchasers of vehicles?
Viscount Goschen: My Lords, I welcome back the noble Lord, Lord Monkswell, to the House after his enforced absence yesterday. He raises an important question about the MoT test. In the event that the test is computerised, that would provide a good avenue for the collection of this information. That might well be a useful tool at that stage.
The Countess of Mar: My Lords, can the noble Viscount say what is the position of a motorist whose car mileometer breaks and who has to purchase a new one which begins at nought? What obligation is there for him to record the mileage on the old mileometer and then to start again with the new one?
Viscount Goschen: My Lords, the offence is selling a car and making false representation about the mileage. If the speedometer cable breaks and one replaces the speedometer with a new one, the appropriate action would be to declare the total mileage of the vehicle.
Lord Clinton-Davis: My Lords, does the Minister agree that this fraudulent activity has become something of a national epidemic? In those circumstances, why do not the Government translate their voluntary advice into a compulsory and mandatory requirement? Would not that materially assist? Can the Minister say why the DVLA does not take this issue as seriously as it does tax dodging? Is it because there is no revenue in it?
Viscount Goschen: My Lords, the two matters are entirely different. As regards the noble Lord's first point about making the system mandatory, that would be one option, but it would not help in guaranteeing further the accuracy of the information and that is an important point. It would also put a very substantial regulatory burden on motorists. We shall pursue our voluntary approach and see whether in the course of time that produces the full results which we are looking for. The DVLA takes this issue seriously and that is why we have introduced a new scheme. The information is disseminated to companies, and the public will be able to inquire about vehicle histories.

Chechnya: Mediation Prospects
3 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
What is their opinion of the best means of achieving a permanent ceasefire and peace settlement in Chechnya, in view of the loss of life, suffering and economic damage already caused.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, a negotiated settlement is the only way to bring lasting peace to Chechnya. We call on the Russians and the Chechens to end the fighting and to return to the negotiating table. We believe that the OSCE, through Switzerland, its chairman in office, and through its presence on the ground in Chechnya, can play a crucial role in efforts to restore confidence and to bring the sides together.
Lord Hylton: My Lords, I thank the Minister for her Answer. Is it not the case that there is so much distrust between the parties to the conflict that it is not realistic to expect them to compose their differences? I welcome what the Minister said about the OSCE, but will it not require greater political will on the part of the members of that organisation to achieve demilitarisation and perhaps an interim international administration?
Baroness Chalker of Wallasey: My Lords, from our debate last week, the noble Lord knows well the complexity of this issue. It is true that there is deep distrust between the parties. We also know that the OSCE's assistance group working in Chechnya has been successful, as it was last year, in helping the parties to reach a military agreement. However, that broke down after the assassination attempt on Mr. Lobov at the end of September and the terrible action against Mr. Romanov in October. I believe that the chairman in office is absolutely committed to finding a way, on a confidential basis, to bring about mediation between the two parties. We must give our full support to his continued efforts.
Lord Rea: My Lords, if we admit Russia to the Council of Europe on Thursday in Strasbourg, will we not be giving Boris Yeltsin a signal that he can carry on with his disastrous and unsuccessful attempt to achieve a military solution, an attempt which has grossly violated the Geneva Convention of 1949 on the conduct of warfare and the universal United Nations Declaration of Human Rights?
Baroness Chalker of Wallasey: My Lords, it is by no means certain what the decision of the members of the Council of Europe will be. However, we believe that having Russia under the influence of the other members of the Council of Europe may be what is needed to bring, about a change in its attitude. Obviously it is a matter of great concern that this apparently internal armed conflict, which has now gone over a certain threshold, may well mean that the principles of the Geneva Convention are being broken. However, I do not see any easy way of resolving the matter because there is a

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degree of uncertainty. We need to bring the influence of all countries to bear on the Russians and Chechens because both sides are fully engaged in this terrible battle.
The Earl of Lauderdale: My Lords, can my noble friend tell the House what is the specific British interest in what she has just described as an essentially internal matter for the Russians?
Baroness Chalker of Wallasey: My Lords, it is beyond being an internal matter because the fighting in the area is obviously impeding economic progress in neighbouring areas and neighbouring countries. However, I do believe that it is an internal matter—and that is where there is a great deal of difficulty in relation to the Security Council, as my noble friend well knows. The principles of international humanitarian law seem to be being broken in this case and it may be a matter for the Security Council.
Lord Dean of Beswick: My Lords—
Lord Avebury: My Lords, the noble Baroness mentioned—
Noble Lords: Order!
The Lord Privy Seal (Viscount Cranborne): My Lords, I hesitate to intervene when we are running short of time, but if the House feels able to allow the noble Lord, Lord Dean, to ask his question first, I am sure that the noble Lord on the Liberal Benches will then be able to get in reasonably quickly.
Lord Dean of Beswick: My Lords, although one could criticise the actions of Russia in some respects, is it not to be deplored that once again we see innocent civilians being taken as hostages to try to force a conclusion to a military operation? Should we not always condemn that out of hand?
Baroness Chalker of Wallasey: My Lords, the noble Lord, Lord Dean, will know that in our debate last week I condemned the actions of both sides, as I did a few moments ago. The conflict is an absolute tragedy. It has claimed thousands of civilian lives. All those who use hostage-taking, wherever they are, are doing a real disservice even to their cause. There are some very real difficulties here, but I believe that having made clear to the Russian Government that the use of excessive force will not resolve this issue, we have to leave it to the OSCE and give it as much backing and assistance as possible.
Lord Avebury: My Lords, is it not difficult to see how one can save hostages' lives by raining thousands of tonnes of bombs on them? The Minister mentioned the role of the OSCE. What remedy is there within the OSCE's mechanisms for the repeated violations by the Russians of their obligations under the Budapest declaration not to use excessive military force in an internal security situation and to take due care not to harm civilians or their property? Does the noble Baroness have anything to say to the House about the meeting of the CIS Heads of State on the 19th of this
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month? Does she not consider that it is counterproductive for those heads of state to discuss internal security questions which are properly the concern of the OSCE?
Baroness Chalker of Wallasey: My Lords, having heard what I said to the noble Lord. Lord Dean, the noble Lord, Lord Avebury, will have noted that I spoke about the uselessness of excessive force in remedying the total situation. However, the Russian Government, who are clearly responsible for finding an effective way to enable the Chechen people to express their identity within the constitution of the Russian Federation, are not undertaking that responsibility. If that had been discussed by the CIS Heads of State it may have brought them a little nearer to deciding the path ahead. All that I can say to the noble Lord is that it does not help to take sides in this matter. That is why the efforts of the OSCE are so important.
Baroness Blackstone: My Lords, in replying to the Unstarred Question on Chechnya last week, the Minister suggested that the Tatarstan solution should be pursued. Can the noble Baroness tell the House what evidence there is that either the Russian or the Chechen sides would accept that? In the debate last week the noble Baroness also hinted that that might be used as a bargaining counter with respect to Russian membership of the Council of Europe. Is that in fact so?
Baroness Chalker of Wallasey: My Lords, I think that the noble Baroness has misinterpreted the HansardL record of the debate in respect of her second point. In respect of her first point, I suggested that that may be one of the options that might be investigated.

Family Law Bill [H.L.]
3.8 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.
[The CHAIRMAN OF COMMITTEES in the Chair.]
The Chairman of Committees: Clause 5, Amendment No. 35, the noble Baroness, Lady Faithfull.
Lord Simon of Glaisdale: Before the noble Baroness moves her amendment, perhaps I may raise a question on the grouping which, if it is right, shuts out, irrevocably at least one important amendment. The groupings list groups six amendments with Amendment No. 35 in the name of the noble Baroness, which has just been called. The list then goes on to say in the usual italics:
"35A-39A and CL 6 S/P already debated".

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On checking Hansard, I find that my recollection is correct. What happened late last night was that the noble Lord, Lord Meston, moved Amendment No. 30 with which several other amendments, including Amendment No. 34, were grouped. Amendment No. 34 was in my name, and I spoke to it. My noble and learned friend the Lord Chancellor then replied to the noble Lord, Lord Meston, and to myself. The noble Lord, Lord Meston, then withdrew Amendment No. 30. The following amendments up to Amendment No. 34, which was in my name, were not moved so that we never reached Clause 6.
The Chair put the Question, that Clause 5 stand part to which the Committee assented. The noble Baroness, Lady Trumpington, then, belatedly because it was a quarter to 11, moved that the House resume. So we never got beyond Clause 5. Amendment No. 35 in the name of the noble Baroness, Lady Faithfull, has been called, correctly, but Amendment No. 35A, which is in my name, has not been debated and has not been reached.
The noble Baroness, Lady Trumpington, is always a great expert on the groupings. I hope that she will be able to clear up my recollection.
Baroness Trumpington: Amendment No. 35A, which I believe is the one to which the noble and learned Lord is speaking, was included in the grouping with Amendment No. 6. However, as we have not reached Amendment No. 35A, even though it was grouped with Amendment No. 6, the noble and learned Lord is fully able to speak—very briefly of course—to it.
Baroness Faithfull Baroness Faithfull moved Amendment No. 35:
After Clause 5, insert the following new clause—
MARITAL BREAKDOWN: REGARD TO BE HAD TO VIEWS OF CHILD
(". Parties who—

(a) have made a statement of marital breakdown under the provisions of Part I of this Act; and

(b) are making any major decision which involves fulfilling a parental responsibility or exercising a parental right,

shall have regard so far as practicable to the views (if he wishes to express them) of any child for whom they have parental responsibility, taking account of the child's age and maturity.").
The noble Baroness said: The noble Baroness, Lady David, has her name to many amendments, but with great regret she is unable to be here this afternoon. Her son has flown over from America for one day, and this is the day. So, with the Committee's permission, I shall speak for myself and for the noble Baroness.
The Committee will know from the groupings list that the amendments relating to children specifically are Amendments Nos. 35, 52, 81, 90, 91, 118, 124 and 132. I shall speak briefly to all of them. As a preamble, I have to say that these eight amendments tabled by the noble Baroness, Lady David, and myself relate to children of divorced parents.
I know that all Members of the Committee will agree that divorce is a sad and damaging event in the life of any child. Children are on the no-win side. Parents
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sometimes do not realise the damage which is being done to children. If the parents stay together and yet have an uncompromising attitude of anger and distress towards each other, that is bad for children, as was stated by the noble Lord, Lord Irvine of Lairg, and the right revered Prelate the Bishop of Liverpool. If the children leave their parents, or the parents separate and the child stays with one of them, that is something which distresses children beyond words. It is something that remains with them for the rest of their lives.
I have often had to deal with children of divorced parents. They say to me, "Why were we never asked what we wanted?" Children are not asked what they want. I do not contend that children should demand and get what they want; but I believe that the courts and the parents should understand what it is that their children need and want. On many occasions what a court decides is just what the child does not want. The courts should know that. So Amendment No. 35 seeks to ensure, first, that parents talk to their children, possibly jointly, about what is happening. If that is not possible, or the parents say that they just could not do that, as things stand the mediation service cannot do that for the child unless the parents give permission.
In the amendment I am saying that a requirement should be laid down, either on the face of the Bill in a schedule or in guidance, that the children's views should be known. I am asking for no more than that. I hope that we shall be able to persuade parents themselves to talk to their children without acrimony or animosity so that the children know that they have at least been heard, even if the outcome is not what they want.
Amendment No. 81 is in the name of myself and the noble Baroness, Lady David. It is a new clause which provides that:
"(1) The Lord Chancellor may make regulations to provide for a special children's officer to be attached to the family court care centres.
(2) The regulations shall make provision for the special children's officer to make appropriate arrangements on behalf of children whose parents—

(a) have made a statement of marital breakdown under this Act, or

(b) have taken or are taking proceedings under Part II of the Children Act 1989".

This amendment is attached to the previous one because the noble Baroness, Lady David, recommends that there should be someone to find out what the children want if the parents have been unable to help them. Children have often written to the judge to tell him that what has happened is not what they want. This amendment, together with Amendment No. 35, is a plea to the Committee to ensure that somewhere in the Bill the children's views and feelings are taken into account when an order is made. I beg to move.
Baroness Elles: I support the helpful amendments which have been introduced by my noble friend Lady Faithfull and by the noble Baroness, Lady David, who we regret is not here today. When we were debating the position of children in the Bill yesterday, she had the kindness to agree, after I had spoken, that the position

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of children was not dealt with fully in the Bill. Therefore I support all the amendments proposed by my noble friend.
Baroness Macleod of Borve: I apologise to the Committee for not having taken part in the debate previously. I am trying to recover from 'flu but it is overwhelming me again. However, I feel most strongly about the two amendments under discussion. I have experience of dealing with marriages that have gone wrong and of dealing with small children in a court of law and I believe that the amendments are vitally important. I do not know what I should have done without a special children's mediator or helper. I found that with the best will in the world parents believe that they are communicating with their children. However, it often happens that they have not communicated and that children have held back. The only person that the children will talk to is a children's officer. With those few comments, I warmly support the two amendments.
Lord Simon of Glaisdale: It has been a criticism of the Bill that it pays insufficient attention to the welfare of children; that it is wrong to speak of a marriage having irretrievably broken down if there is a young child for whom the parents still have responsibilities; and that it is wrong to talk of the spouses being locked in a loveless marriage if there is a young child who can receive and reciprocate love. Throughout discussions on the Bill and the White Paper, and going back to 1969, attention has been focused on the parents and their wishes rather than on the child's. The Child Support Act was launched with a White Paper which stated that children come first. Quite obviously, they do not under this Bill. Therefore, it is of great importance that the noble Baroness, Lady Faithfull, has drawn attention to the fact that the courts should be cognisant and constantly vigilant as to the welfare of the child. The question is, how should that be done?
The noble Baroness wants the parents to speak to the child in question. In some circumstances that may be suitable but more often than not it is unsuitable because the parents try to influence the child in favour of their own interests, and ultimately, and generally disastrously, in favour of a new spouse who is put forward as a surrogate parent.
In my time, which is some time ago, the courts were most reluctant to see children embroiled in a divorce at all because it did far more harm than good. I shall be corrected by the noble Lord, Lord Meston, if the practice has changed but I do not believe that it has. My practice was that if the parents were agreed as to the arrangements for the child—the court had to be satisfied under Section 41 of the 1973 Act—and if the court was satisfied that the parents had agreed, it almost always considered that that was better than any solution which was imposed by the court contrary to the parents' wishes. Therefore, there was no reason to bring in a child in those circumstances and there were several reasons for not doing so.
On the other hand, I agree with the noble Baroness, Lady Faithfull, that it is necessary that the child's interests should be considered. Welfare officers,
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experienced probation officers, are attached to the court. They were recruited into a welfare office by my predecessor Lord Merriman. They act as mediators, and nowadays a great deal of voluntary mediation is offered. In Amendment No. 35A, I have suggested as an alternative that any child should be represented by the Official Solicitor who can report to the court. He is quite impartial and detached and very much used to representing the interests of children. It is one of his every-day jobs. Generally, an assistant official solicitor is exclusively occupied with that task. I believe that that course is preferable to the suggestion that a children's officer should be attached to every court, as suggested in one of the amendments. I cannot help believing that the Official Solicitor is the right person and can provide the right guidance to the mediator or, if it comes to it, to the adjudicating court. I shall be anxious to hear the views of my noble and learned friend on that matter because he has constant contact with the Official Solicitor.
Baroness Lockwood: I too support the amendments. Like other noble Lords, I believe that the interests of the child are absolutely vital and therefore should be given more prominence under the Bill. The first of the two amendments brings the views of the child to the attention of the court at an early stage in the proceedings. Under the Children Act 1989 the interests and the views of the child are ascertained at a later date in the proceedings. Surely it is better that the child's views are known at an earlier stage when one hopes that there will be moves towards a reconciliation or, if not, when conciliation is taking place.
I also support the second amendment, which provides for representation of the child if necessary by an officer. That is important because I too believe that there will be occasions when the child's views can best be represented by an independent person on behalf of the child, irrespective of the views of the parents.
A further important point is that the amendments meet the requirements of the European Convention on the Exercise of Children's Rights, which we have ratified. It requires that the views of children should be ascertained when important matters affecting the future of the children within the family are being decided.
3.30 p.m.
The Earl of Onslow: We are in danger of getting into a slight muddle. If two people are hell bent on divorce it does not matter whether little Tommy, aged seven, says, "I do not want my parents to get divorced". It seems to me that the road down which we ought to go is to say that the interests rather than the views of children should be taken care of. It would be totally wrong to say, "We cannot have Mr. and Mrs. Bloggins getting divorced because their little Tommy doesn't want them to". That seems to me to be very nearly where the amendment is leading.
What I think would be sensible and reasonable, however, would be to try to move mediation a hit further down the line of reconciliation or to take it into account, and then it might be possible for the conciliator to use the child's views in its own interests—because it must

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be in its own interests that its parents stay reasonably happily married—to help bring some form of conciliation into it. But it is honestly no good taking into account the views of a child whose parents are hell bent on bashing each other over the head with a milk bottle. That was brought out last week by the noble Earl, Lord Russell, when I believe he said—I shall certainly be happy to stand corrected if my memory is at fault—that when his parents were divorced he experienced almost a sense of relief because the fighting had stopped. I hope I have not stated the noble Earl's feelings wrongly in that. Am I right?
Earl Russell: It is a paraphrase, if I may say so. I agree with most of what the noble Earl said, but perhaps it applies rather more to yesterday's amendment of the noble and learned Lord, Lord Simon of Glaisdale, than it does to today's the amendment of the noble Baroness. I support the amendment of the noble Baroness.
Lord Murray of Epping Forest: I find myself rather more optimistic than the noble Earl, Lord Onslow. It is surely not impossible that if there is a clear and definite obligation laid by the Act on the need to take account not only of the interests but of the views of a child, and that is explicated and spelt out, it may be just possible that it could make the warring parents address themselves to this enormously important aspect of their marriage and pay just a little more attention to it. If, by putting this on the face of the Bill, we produced in only a handful of cases a balancing factor which perhaps tipped the couple away from divorce, then I believe that that in itself would totally justify the amendment, which I would very much support.
It is important, as the noble Baroness emphasised, for the court and the mediators not only to take into account the interests of a child but also its views. The child should be told what is happening and given support where necessary and also advice. The noble and learned Lord, Lord Simon, said that it is a matter of argument as to who can best provide the advice. I tend to think that specialised officers would be better than the Official Solicitor, but that is a matter for discussion.
We should recognise that this is not a divorce Bill. It is not just a matter of the divorce of the parents. This is a family law Bill. I would emphasise that the children themselves are at least as important as the warring parents and should have their proper place in the context of this Bill.
Lord Elton: Your Lordships have not so far looked at Amendment No. 118 which falls within this group. It requires a child protection agency to provide help and advice to children of divorced parents, who find themselves disadvantaged by the terms laid down by the court. I do not suppose that we are meant to crawl over that too closely and ask at what stage a child may find itself disadvantaged, but I think it would be proper to ask why we are treating children as all being the same. How is the agency to give advice to a child of, say, three or of three months and how will that differ between a child of 13 or 17? These are practical and important
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questions which need to be resolved. I take it, therefore, that this is only a probing amendment because clearly it would not serve as it now stands.
Coming back to the original Amendment No. 35, if the amendment really laid on the parents a duty—which clearly in moral law they already have—to consider the interests of the child there would be no harm in it at all and it would be very much a matter of apple pie and mother love as being something which one could not criticise. However, it does require the parents to have regard to the views of a child if it wishes to express them; and again, of course, the child may be of any age, even an infant. I hope that your Lordships will remember what the noble and learned Lord, Lord Simon of Glaisdale, said and the light thrown on this by my noble friend Lord Onslow. Many of us who support this Bill do so precisely because it gives a narrow avenue in which it is possible to some limited extent to protect children from the devastating effects of being mixed up in a divorce.
In that system the very hardest thing a loving parent has to do is to tell the child what is happening and get the child's view on it without involving the child in the battle, because inevitably a divorce represents a period of enormous strain and very often of powerful conflict. If we actually make an enactment which requires the child to be drawn into that conflict without any reference in it to any necessity to protect that child from the emotional damage which can result, without thinking through the role of any third party, I believe your Lordships would be acting irresponsibly. I hope that we can look at this with great care and certainly not rush ahead today.
Baroness Hamwee: I also support the noble Baroness's amendment. In doing so perhaps I might repeat some of the concern expressed by the noble Lord, Lord Elton, but perhaps in slightly different words. As I understand the noble Baroness, she is suggesting that it is not possible to have regard to the views of a child without supporting that child through the process and making certain that the real views are expressed, which may not necessarily come out in the first words that are used. It is more than simply asking one question and listening to one answer.
My concern is, taking up what the noble Lord, Lord Elton, said, the approach involving a welfare officer and whoever else it may be. This is so important and the balance is quite difficult to achieve, I suspect, between ascertaining the views of the child and avoiding the child feeling responsible for the outcome because of its expression of views. I am certain that the noble Baroness has that kind of concern very much in mind.
I am not sure whether the noble Baroness has spoken to the amendment relating to the Information Act, which comes later in this group, Amendment No. 91. I tend to the view that it is better not to put on the face of the Bill the precise mechanism that is required, if only for the reason that methods of providing information are changing very fast. There may be some children in the year 2000 who will only be able to deal with

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information if it comes in the form of a CD-ROM. In the space of 10 years things may have moved on a little further.
Lord Stoddart of Swindon: I should like fairly briefly to support this group of amendments because I think that so far we have not sufficiently taken into account the interests, and certainly not the views, of children. I think we have to bear in mind that once a child or children have arrived the marriage then does not simply belong to the husband and wife; it belongs to the family. Therefore, there is certainly an argument for taking the views of the children into account where possible and, indeed, for taking into account formally the interests of the children. I believe that the amendments direct our attention to that important aim.
I have to tell the noble Earl, Lord Onslow, that there is great deal of evidence to show that children would prefer a marriage to remain intact, even though that marriage may well have some conflict within it. I see that the noble Earl wishes to respond. I give way.
The Earl of Onslow: I am much obliged. I completely agree with that view. My parents were divorced. The one thing that I did not want them to do was to divorce. I am sure that that is what children think, but it may not always be in their interests. I am advocating the argument that it is their interests rather than their views which should be taken primarily into account.
Lord Stoddart of Swindon: Yes. I perfectly understand that argument. But, where possible, I believe that the views of children should be heard.
All too often, when parents decide to divorce, they do not even think about the views of the children; indeed, many of them believe that their children have no view at all. The proposed amendments would at least ensure that parents addressed the problems which their divorce might bring about, especially as regards their children.
Lord Annan: I very much hope that the amendment moved by the noble Baroness will be sympathetically considered. The noble Earl is right to say that the children's interests should come first. However, I believe that the noble Baroness made very clear in her speech that their views should be taken into account, but that the settlement might not be in accordance with those views.
I tend rather to agree with my noble and learned kinsman Lord Simon who suggested that the Official Solicitor was, perhaps, the right channel for communicating or obtaining such views. However, I very much hope that a sympathetic official from the Official Solicitor's office would be involved, as I have always imagined that the Official Solicitor somewhat resembled Dickens' Mr. Jaggers.
Lord Elton: Does the noble Lord envisage that avuncular figure addressing a child of two and, if so, how?
Lord Annan: The noble Lord is entitled to mock the amendment in that way. If the child is two years of age
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it would possibly have no view on the matter. But surely we accept that our officials do bring common sense into their judgments.
Lord Elton: I am in no way mocking the amendment. I regard this as something painfully close to experience. We have a great duty to do our best with it. I was trying to suggess—although, perhaps I did not spend long enough on it with just one sentence—that there should be some question of a guardian ad litem, or some other source, to interpose between an infant and the law.
Baroness Seear: If it is to be a guardian ad !item or the probation officer attached to the court—and it is very likely to be the latter—that underlines the importance of giving the right training to such officials. Indeed, it is important for those probation officers to receive the right kind of training, and not the kind of training with which we have been presented in recent Home Office programmes.
Baroness Faithfull: Perhaps I may make a few comments before my noble and learned friend responds. The intention behind the amendment is to ensure that there is a good relationship as regards the child, the mother and the father, whatever the circumstances may be. Mediators in the mediation service do not see the child by law, but they do bring to the notice of both parents the fact that each of them should try to have a relationship with the child and that they should be able to talk to the child in a way that is not acrimonious. That should help the child or children to understand that the fault is not theirs and enable them to build up a relationship with both parents.
3.45 p.m.
The Lord Chancellor: It is clear that the amendments to which my noble friend has spoken and which the noble Baroness, Lady David, with her great experience in the area, supports—although, sadly, she is not able to be with us today—draw our attention to an extremely important aspect of the matter. The need for considering the children's interests and also for having regard in appropriate circumstances to their views is quite fundamental.
By way of introduction, perhaps I should point out that we do have in place the Children Act 1989 which contains very clear legislation dealing with matters which relate to contact with and the residence of children. Indeed, there are provisions for guardians ad litem and for the Official Solicitor to be involved in some cases, and so on. Therefore, assuming that it reaches the statute book, the legislation will not stand by itself.
I believe that I am entitled to say the Children Act has proved to be extremely good as a basic structure for the law in this area. I believe that those who practise in the area universally agree with that view. Of course, there are questions about some other aspects of that Act which will be dealt with later in this legislation regarding regulation in respect of schools, and so on. However, the part of the Children Act that deals with the matters now under discussion has, I believe, proved to be very satisfactory.

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One of the most satisfactory aspects of the Act is that it has generated a great deal of interdisciplinary co-operation on matters affecting children; for example, psychiatrists, child psychiatrists, doctors and the like have been able to come together with lawyers in trying to promote the interests of the children. Of course there are difficulties involved, one of which is the unnecessary delay which sometimes occurs in such matters when a number of experts are involved. However, we are attempting to tackle that situation. I want to emphasise that the Children Act stands very much at the forefront of matters concerned with children.
I take the sense of the proposed amendments to be that the children affected by divorce should very much be kept in mind. I have said before that one of the principal reasons that I sought to bring the Bill before this Chamber is just so that the effect of divorce on children should be as minimal as is possible, thus enabling both parents to maintain a relationship with their children after they divorce. I believe that that is a most important consideration in the future development of the children after the sad event and trauma of divorce.
Of course, there are other questions to be considered. One of the most difficult is the issue of one parent or the other seeking to indoctrinate the children with views that are adverse to the other parent. Those Members of the Committee who have experience in dealing with such matters have, I believe, found it to be one of the most difficult situations to tackle. Once a child has been indoctrinated, let us say—and this is just an illustration, because it could obviously happen the other way around—by the mother against the father, it becomes very difficult to maintain satisfactory contact between the child and the father. Very often the child gets into a state when the contact starts, and the father has little opportunity to influence the child to try to change the situation.
Similarly, the court would have great difficulty in such a case because the mother may say, "It is terribly bad for the child; it is upsetting the child terribly. We can't handle this". Therefore, the contact would have to stop. However, the court may say, "You must allow it", and, ultimately the wife may say, "It is just doing the child a great deal of harm". Of course, the only real and ultimate enforcement is some kind of contempt proceedings, and the benefit of that to the child would be absolutely negative. Indeed, I have been in such a position as a judge. One feels powerless. Therefore, it is most important that we do what we can to prevent such a situation developing.
My submission to Members of the Committee is that the most likely avenue for help in that connection is the discussion that the mediator will set up. I believe that my noble friend really took up that point towards the end of her address.
There are two possibilities. First, there is the possibility where the mediator deems it right, in the circumstances of the particular family, that the children should be involved in the discussion if that is appropriate. If it is not appropriate, my noble friend
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Lady Faithfull has experience of the panel system in Scotland which is used for dealing with children who are suggested to be in need of compulsory measures of care. That is a kind of a round table discussion in which the panel members and the parents and child—and sometimes the child's headmaster or teacher, or some other official from the social work department—take part.
If the family situation was such that a reasonable discussion would be possible in that form, that would be a good way of ascertaining the views of the children and helping to protect their interests. If that was not possible, it may be that a separate meeting between the mediator, or an assistant to the mediator, and the children would be required. Then, informed by that meeting, the mediator may be able to advance matters.
As my noble and learned friend Lord Simon of Glaisdale said, I have responsibility for the Official Solicitor's Department. I am second to none in borrowing the expertise and care of the Official Solicitor, but I am most anxious that the expertise of the Official Solicitor is not used in cases where he does not have anything particular to contribute. The Children Act 1989 makes quite elaborate provisions to allow for guardians ad litem, and so on, depending on the circumstances of the case, if there needs to he legal discussion about what should happen to the children.
I do not find it easy to accept the detail of these amendments for a number of reasons which perhaps I should spend a little time to point out.
As to Amendment No. 35, there is the problem of parental responsibility. Parental responsibility does not always coincide with children who are children of the family, and it is really the children who are affected by the divorce that must be taken into account. For example, step-children are often involved in the family and would be affected by a breakdown of that family, even though there is no parental responsibility. I have already mentioned the difficulty of getting children to take sides, and so on.
As to Amendment No. 81, this matter is being developed in relation to the situation under the Children Act. The officer involved here would have a multiplicity of roles in providing information and advice, liaising with children's attendance or otherwise at court and advising on whether separate representation is required. These are rather different functions and it would be difficult for them to be performed by one person. Court staff are well used to dealing with queries from families, for example with respect to arrangements available for children to attend court. All care and family hearing centres have dedicated family sections whose staff have specific expertise in this area. Although of course they do not have advisory functions, they can give information.
The court service is currently considering a recommendation of the Children Act Advisory Committee—which is monitoring the way in which the Children Act is functioning in practise—that a liaison officer should be appointed to each court dealing with

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family matters so that primary responsibility for administrative issue concerning children is vested in one person. My noble friend and your Lordships know that the court may ask a welfare officer to prepare a welfare report. That welfare officer is a member of the probation service, but the welfare service has developed a considerable expertise and I believe and hope that that will continue.
The Bill contains provisions in relation to Section 41 of the Act which give power to the court, if it thinks that an order is required and that further delay is required, to postpone the granting of the divorce until these matters are satisfactorily dealt with.
I do not think my noble friend spoke particularly to the later amendments—if we get to them, a fairly detailed consideration will be required—but, on the principle of the matter, I would suggest that the best way of handling this is that it be a specific part of the remit of the mediators that these matters should be taken into account, with the court having the responsibility of being satisfied with the arrangements for the children of the marriage—which is already provided for in the Bill—and with the powers that flow from that, to which I have referred.
Baroness Faithfull: I am grateful to the noble and learned Lord. All the amendments on the list and in the Bill have been spoken to, and replied to by the noble and learned Lord. There is one outstanding amendment to which I would draw your Lordships' notice, and ask for the views of the noble and learned Lord. When the divorce proceedings are over the issue of access becomes a burning question, as does the issue of children growing up and changing their views. Has the noble and learned Lord considered in this Bill that there should be somebody a child can turn to?
I speak with very deep feeling because for two years I had to be in every Sunday evening when a father refused to return his children to their mother after an access visit. I had to go and fetch the children, quite rightly, because it was the court's order that they should be brought back.
It is very difficult because many parents—it might be the mother, it might be the father—make excuses that the child cannot go, that the child is ill, that the child has a football match to take part in, and access visits are not adhered to by the parents. Therefore, the child ought to have somebody that he can go to, to say, "I want to see my other parent but the parent that I live with does not let me." This is something that has not been covered and needs to be covered.
If a mother has custody of a child—particularly a boyar the boy gets older he has a feeling and a need to see his father much more, so the order could be varied. This is Amendment No. 118 to which I draw your Lordships' attention.
I have not spoken to all the amendments, but the subjects have been covered and answered—except for this one—by the noble and learned Lord, and therefore 1 beg leave to withdraw Amendment No. 35.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 35A:
After Clause 5, insert the following new clause—
REPRESENTATION OF MINOR BY OFFICIAL SOLICITOR
(" . In any proceedings under this Part any child of the family under the age of sixteen years shall be represented by the Official Solicitor, who shall submit a written report to any mediator or court considering the child, and who may (and shall if so requested by a mediator or a court) make oral representation.").
The noble and learned Lord said: I spoke about the substance of this amendment on Amendment No. 35, so I can deal with it very shortly. I strongly agree with what my noble and learned friend the Lord Chancellor said about the danger and prevalence of indoctrination. One was told all too often that everything possible had been done but the child had an invincible repugnance to seeing his mother or his father, as the case might be. That immediately set alarm bells ringing. For that reason it is better that the child should be kept as far as possible out of the situation which, as hypothesised, has reached the stage where one parent has filed a statement saying that he or she believes that the marriage has irretrievably broken down.
There will be some cases where the views of the child may profitably be entertained, but very few. Therefore, I tend to agree with the noble Earl, Lord Onslow, that it is far more important that the interests of the child rather than the view of the child should be represented. In the amendment I have suggested that that should be by the Official Solicitor, who is the normal mediator (and I use that term untechnically) between a child and a court.
I do not propose to move the amendment unless any Member of the Committee would like to speak to it.
[Amendment No. 35A not moved.]
[Amendment No. 35B not moved.]
4 p.m.
Clause 6 [Declaration to accompany application]:
[Amendments Nos. 36 to 38 not moved.]
On Question, Whether Clause 6 shall stand part of the Bill?
The Lord Chancellor: As I explained in relation to an earlier amendment, I have replaced the effect of Clause 6 in an earlier amendment. I believe that that improves matters. Therefore, I beg to move that Clause 6 do not stand part of the Bill.
Clause 6 negatived.
Clause 7 [Period for reflection and consideration]:
[Amendments Nos. 38A to 39A not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 40:
Page 4, line 14, at end insert ("during which the parties may attempt reconciliation for a period of three months, or periods in total aggregating three months, without prejudice to any of their rights under this Act and should be encouraged to consider attempting reconciliation by the mediator in any mediation which may take place under section 12 of this Act").
The noble Lord said: I rise to speak to Amendments Nos. 40 and 55, both of which stand in my name and the name of my noble and learned friend Lord Archer of Sandwell.
A disappointing feature of the Bill is that it does not clearly establish the relationships between mediation within the year for reflection and consideration, the concept of the year itself and attempts at reconciliation, either within that year or beyond that year. It is because we value the institution of marriage so highly that we wish the Bill to recognise in the clearest terms the public interest in promoting reconciliation and, as a result, the public interest in upholding the institution of marriage. My noble friend Lord Stallard called attention specifically to that feature of the Bill in his speech at Second Reading, which is reported at col. 746 of Hansard for 30th November 1995. I believe this to be of central importance to the Bill and shall therefore spend a little time on it.
The first step is to look at what the Bill expressly provides. Under Clause 7 the year for reflection and consideration must pass before an application for a divorce order may be made by reference to a statement under Clause 4 that the marriage has broken down irretrievably. Under Clause 7(3) the period for reflection and consideration is one year, beginning with the day on which the statement is received by the court.
I invite the Committee to give close attention to subsections (5) and (6) of Clause 7. Subsection (5) provides that:
"Subsection (6) applies if a notice requiring time to attempt reconciliation is given to the court by the parties (acting jointly) at any time during the period for reflection and consideration".
Subsection (6) states:
"Any time falling—

(a) on or after the day on which the notice is received by the court, and

(b) before the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful, is to be disregarded in calculating the period for reflection and consideration".

Finally, subsection (7) provides that:
"Where a continuous period of more than 18 months is to be disregarded under subsection (6), any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement made at any time after the end of the 18 months".
When I first read those provisions I thought that they operated as a disincentive to stepping back from the brink and attempting reconciliation. We are concerned with parties who start out in the belief that their marriage has broken down, who serve a statement to that effect and who want to be released but cannot be released until a year has elapsed. Yet there may be nagging doubts. At any stage in the mediation process the cold realities of the consequences of divorce may be brought home to the parties. They should be told by the mediator that attempting reconciliation remains an option but that option is not precluded by participation in mediation. Also, there should be no disincentives put in the way of attempting reconciliation during the year for reflection and conciliation.
My first thought was that that provision penalised an attempt at reconciliation when the attempt at reconciliation ends in failure because its effect is that the year for reflection and consideration ceases to run while reconciliation is being attempted. It was that thinking that lay behind the detail of Amendment No. 40. I thought that Clause 7(2), combined with Clause 7(5) and (6), amounted to a warning: beware if you attempt a reconciliation which fails because you will then delay your divorce by the length of the period of your attempt which has sadly failed. I now think that I was probably wrong and that is not the intention of the Bill. However, I still desire to say that the Bill is seriously lacking in clarity and should be strengthened.
The basic problem seems to be that it defines what is to happen if the parties give notice to the court that they require time to attempt reconciliation but does not provide what is to happen where parties attempt reconciliation during the year for reflection and consideration but give no notice to the court under Clause 7(5). That, I think, is a great deficiency.
Clause 7(5) deals with attempts at reconciliation which the parties notify to the court. It does not deal with attempts at reconciliation which take place during the year for reflection and consideration but which are not notified to the court. The parties could be forgiven for thinking, standing the appearance of the Bill, that that is not an option available to them.
I allowed myself to be misled into thinking—I hope that I was misled—that the only attempts at reconciliation which the Bill recognised were those of which the court was given notice by the parties. However, I hope and now think that I am wrong about that. As I now see it—the noble and learned Lord will correct me if I am wrong about the intention of the Bill—Clause 7(5) and (6) are intended to be beneficial. They provide that while the year for reflection and consideration is running—let us say, for example, that it has run for three months—the parties can give notice to the court of attempted reconciliation and as much as 18 months may elapse without extinguishing that part of the year which has already run. If at the end of the period of attempted reconciliation, which may be up to a maximum of 18 months, the attempt proves to have failed, the parties then have credit for the part of the year before their attempt. The year starts to run again and at the end of the year application for a divorce order can be made. If it is not immediately made, the parties then have a further period of six months within which they may apply for a divorce order under Clause 4(3)(b).
The Lord Chancellor: It may help to shorten the matter if I confirm that the intention of the Bill—I certainly would wish to consider whether it can he clarified—is to give parties the option of stopping the clock running so that the period of attempted reconciliation is additional to the year. If the parties go for, say, a year trying to reconcile, then that is not counted within the period.
My noble friend Lady Young talked yesterday about all that had to be done within the period, and spoke for a lengthening of the period. If the parties are able to try to effect a reconciliation, the period spent on that stops

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the clock. There is no question of that, as it were, being counted against them in the running of the period. The noble Lord is right in saying that that is the intention, and not what he originally thought that the intention was.
4.15 p.m.
Lord Irvine of Lairg: I am relieved to know that my second thoughts on this subject were correct in the view of the noble and learned Lord. An attempt may be made at conciliation up to a maximum of 18 months without that stopping the one year clock running; and that clock will resume running after the expiry of the failed period of reconciliation of 18 months or less. That I understand.
That allows me to come straight to the deficiency in the Bill as I see it. What is the position, not expressly dealt with in the Bill, if the parties attempt a reconciliation without giving any such notice? I think, but I am not sure, that the intention must be that the year for reflection and consideration continues to run concurrently with the attempt at reconciliation. If it fails, the period of their attempt counts towards the year and, as the parties are determined on divorce, application may be made within six months of expiry of the year under Clause 4(3)(b). In other words, if you invoke Clause 7(5)(6) and (7), in the language of the noble and learned Lord, you stop the clock running. But if you attempt a reconciliation without invoking those provisions, and without giving any notice to the court, as I understand it you do not stop the clock running.
I have to say that I see nothing wrong with that provided that I am right in my supposition that that is what the Bill intends and means although it does not address attempts at reconciliation not notified to the court. It appears to me that there is no inconsistency between the year for reflection and consideration being treated as continuing without suspension during a period of attempted reconciliation. I would say that by definition actually attempting reconciliation is the highest order of reflection and consideration of whether a marriage can be saved. The best way to reflect and consider is to try out the marriage again in a spirit of attempting reconciliation.
I am anxious to know whether the second part of my interpretation of the provisions—arrived at, I have to say, with a certain amount of difficulty—be correct. The noble and learned Lord has said that I am right about the intention of Clause 7(5),(6) and (7). I am relieved at that. However, I am concerned to know whether I am right in the second part of my understanding of what the Bill must intend. In my view, it is critical that the Bill expressly addresses attempts made at reconciliation not notified to the court during the period of a year for reflection and consideration.
Therefore I suggest to the Committee that the provisions must be looked at closely to ensure that they lay down a clear and unambiguous scheme for encouraging attempts at reconciliation.
It would be inappropriate to press Amendment No. 40 because, as the noble and learned Lord confirmed, I have now understood properly the intent of the
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provisions which are on the face of the Bill. However, I believe that clarity requires that at the end of Clause 7(2)—I invite the noble and learned Lord to give thought to this—after the words,
"That period is to be known as the period for reflection and consideration",
there should be added,
"and may include any period within that period during which the parties attempt reconciliation".
That makes it plain that the parties can attempt reconciliation within the year for reflection and consideration without having to follow a court-based procedure of giving a notice to the court.
I also suggest that the clause should make it express that attempts at reconciliation, not the subject of any notice to the court and therefore outside Clause 7(5) and (6), may take place during the year for reflection and consideration without prejudice to any of the parties' rights under the Act; and, separately—and, with respect, I suggest to the noble and learned Lord, importantly—there should be an additional subsection which provides that the parties should be encouraged by the mediator to consider attempting reconciliation.
As I observed in Committee yesterday, I well appreciate that mediation is not about reconciliation. The mediator is not a reconciliator. He is a mediator of solutions for the parties to try to agree once the one issue upon which they have agreed is that their marriage has broken down. I see no reason why the Committee should not put the mediators under a statutory duty to encourage the parties to consider attempting reconciliation. That does not mean, and it would be unwelcome to the mediators if it did mean, that the mediators are obliged to engage in a process of counselling, to try to persuade the parties to he reconciled. I entirely accept that that is not what mediation is about. However, what I am suggesting is that the mediators should be told that in the course of mediation they must say something to this effect: "Do consider attempting reconciliation. Although you have entered this mediation process, you should not think that that forecloses the option. That option remains". If the parties were to express an interest in pursuing the option, then the function of the mediator will be to refer them to counselling, with that in view.
Those are the proposals which I now think it right to put before the Committee for consideration: to ensure that the relationship between mediation and reconciliation is clearly established alongside a duty in the mediators to inform parties who come before them in the mediation process that mediation is not a process which has a momentum of its own and precludes the option of reconciliation. On the contrary, that option remains and should be followed by the parties, if they so desire. I beg to move.
The Earl of Onslow: I have listened carefully to the noble Lord, Lord Irvine. It seems to me that if peradventure there should be a change of government in the near future and if he should be sitting on the Woolsack, if he cannot now understand and makes heavy weather of the Bill, either he will be a rotten Labour Lord Chancellor or the Bill is not drafted clearly.

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With the greatest respect to him, I believe that the latter is more likely than the former. If that is the case, surely we should make the wording absolutely clear. If he has found it difficult to understand, I am sure that other people will find it just as difficult.
A further point struck me. It is that the clock ticks and there is a period of mediation and reconciliation. As the Committee knows, the route down which we ought to go is mediation and conciliation, if possible. However, if mediation fails, people must wait longer for a divorce, which will be a disincentive for the conciliation process to work. I suggest that the Bill is one of the most socially important which Members of the Committee will have before them. If we are to get the Bill right then we must achieve the careful balance between making a clean break, with the minimum upset, and making the maximum effort at mediation. We must get that balance right, and therefore it must be absolutely clear on the face of the Bill exactly what we mean. We ourselves must be equally clear. If the noble Lord, Lord Irvine, is to be anything other than a rotten Labour Lord Chancellor, I am sure that we ought to get the wording slightly clearer than he finds it.
Lord Marsh: It is important to draw a clear line between reconciliation and mediation. When the majority of couples reach the stage of the seriousness that we are considering, with the desire firmly reached by at least one party and frequently by both parties, there. is a great danger. If all goes well, the mediator has the ability to turn the discussions into a civilised arrangement, a civilised break-up, certainly to the benefit of the children. There is a danger, however, that at that stage the mediator may begin to recommend conciliation to people who, as the noble Lord said earlier, may well have had many weekends away together in the hope that things would all come right. They may have had a holiday together in that hope; they may have spent endless hours discussing the matter. At a point where they are trying to get together and make the best of the separation in everyone's interests, they may suddenly be told by the person seeking to achieve that: "Why don't you try reconciliation?" If I understood the noble Lord correctly—and that may not be the case—if that were to happen, it would devalue the role of the mediator which is practical and important.
Lord Coleraine: The noble Lord, Lord Irvine, referred to Clause 7 which I find comparatively straightforward and clear cut. It may be a fault on my part and I wish to test my understanding by asking the noble Lord to explain the exact significance of the words,
"without prejudice to any of their rights under this Act".
He proposes, under Amendment No. 40, to add those words to Clause 7. It seems to me that, during the period for reflection and consideration, whether they attempt to reconcile for periods of more or less than three months, there is nothing in the Bill to suggest that it would be
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prejudicial to any of their rights under the Act. That is where my difficulty lies. If the noble Lord could explain that, it would be helpful to me.
Baroness Hamwee: With other Members of the Committee, my noble friend Lord Meston has proposed amendments within this group. They are Amendments Nos. 54, 56, 58 and 60, which arise from the anxiety expressed in large part by the noble Lord, Lord Irvine, as to the precise meaning of Clause 7.
In Amendment No. 54, in relation to the need to give notice in order to stop the clock, my noble friend has provided an insertion that:
"no period during which the parties resumed living with each other shall count as part of the period of reflection and consideration".
I know that his anxiety is to deal with the underlying point rather than to press the detail of the amendment.
I turn to Amendment No. 56 which proposes to replace the expression "is to be disregarded" with the words "shall not count" as to that period. Presumably the noble and learned Lord the Lord Chancellor will confirm this, but my noble friend is worried about what is meant by the suggestion that the time between the two notices should not count. The wording could mean that the time between the two notices is not to affect or interrupt the 12-month period. My noble friend had difficulty in interpreting that phrase and I share his problems with exactly what is meant by "is to be disregarded". I understand that the words "shall not count" have been borrowed by my noble friend from Section 2(5) of the Matrimonial Causes Act 1973.
Finally, Amendments Nos. 58 and 60 have been proposed in order to question the period of 18 months. Perhaps the noble and learned Lord could say why that is thought to be the appropriate period. If 12 months is a sufficient period in which to establish that the marriage has irretrievably broken down, why is it not equally sufficient to require the parties to re-start the process if they want a divorce?
I should first have apologised to the Committee that my noble friend is unable to be present until a little later today.
Viscount Brentford: I believe that Clause 7 strikes a fair balance between the conflicting interests of mediation and reconciliation. I do not favour Amendment No. 40 in itself and perhaps the noble Lord, Lord Irvine, will not press it. However, I am quite attracted to the strength of reminding the mediator of the possibility of reconciliation. I accept that he is not there to carry out reconciliation.
I was most impressed by what my noble and learned friend the Lord Chancellor said yesterday. He said that at any time mediation might throw up a desire for reconciliation when the future was looked at by the couple in conflict. It is important that the mediator hears that point in mind. I do not believe that he has a statutory duty in that respect. It may well be that an amendment can be written in to remind him that he should have that duty at any time if reconciliation seems to be on the cards.

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The formality of serving notice appears to me to be important if the clock is to stop for that period. During the year of mediation undoubtedly there will be times when the couple will want to have a go at reconciliation. They may take a week or two and will not bother with formal notice, but the mediator will bear in mind the legal niceties in discussion with them. On the whole, I believe that Clause 7;strikes the right balance and I commend it as drafted, except for possibly writing in at some stage the legal requirement for the mediator to bear reconciliation in mind, although he is not himself the reconciliator.
4.30 p.m.
Lord Irvine of Lairg: Perhaps I should say the following in response to the noble Lord, Lord Coleraine. I would be the first to be relieved if I were worrying about nothing, but I do not think I am. I worry about the undoubted fact that on its face the Bill does not address the situation where during the year for reflection and consideration an attempt at reconciliation is made without any notice being given to the court.
I suggested on my feet that a way of dealing with it might be to add to Clause 7(2) the words, "and may include any period within that period during which the parties attempt reconciliation". My reason for doing so was to make clear that in such a circumstance the clock governing the year for reflection and consideration would continue to run. If it did not run and an attempt at reconciliation without notice to the court—I venture to suggest that that will happen much more than where' notice is given—did not count towards the mandatory year before a party could apply for a divorce, it would delay the availability of divorce and operate as a disincentive to an attempted reconciliation. That would be contrary to all of our intentions. I hope with that explanation the noble Lord, Lord Coleraine, will understand why I am concerned about this matter. It may be that my concern is about to he relieved by the noble and learned Lord, who did not intervene in my observations to say that I was right on this particular point. Perhaps I am worrying about nothing and that attempts at reconciliation not notified to the court do not prevent the year from running, and if they fail after the expiry of the year an application for a divorce may be made, just as it can be if an attempt at reconciliation has not been made.
The Lord Chancellor: The intention of Clause 7 is that the parties should reflect on whether or not the marriage can be saved. That is the keynote of the clause. The purpose of that is to enable them to consider in every possible way, including attempts at reconciliation, what can be done. As to the second part of the point raised by the noble Lord, Lord Irvine, the intention is that whatever consideration is given to these matters does not stop the clock running, except in the situation where subsections (5) and (6) apply. Put another way, if the parties agree to make a real attempt at reconciliation they can stop the clock running. If everything works the whole business is finished and they go on living together happily as a married couple would like to do. On the other hand, if they have been working at it for three
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months or so and the attempt fails, instead of the period expiring a year after the notice it will expire 15 months after the notice, because the three-month attempt at reconciliation will not be counted in the year. Surely we are all in favour of doing what we can to encourage reconciliation. Therefore, this gives additional time in which an attempt at reconciliation can be made, but it is a joint effort on the part of two people.
The current law has a somewhat different effect on attempts at reconciliation. Under the present law, if the reconciliation is for an aggregate period of six months or more after the discovery of the adultery complained of, or the final act of behaviour alleged takes place, there is prejudice to the parties in going ahead with a divorce based on that adultery or conduct. We want to do everything possible to facilitate and encourage reconciliation.
Earlier in these debates the Bill was described by an expert on these matters as being clearly drafted. I believe that this is reasonably clear. The noble Lord, Lord Meston, believes that the words "is to be disregarded" may be better replaced by the words "shall not count" or "does not count". I shall certainly take the advice of Parliamentary counsel on that point. When one knows what one wants and reads something it sounds plain, but sometimes when one tries to find out the meaning by reading the words it is not so plain. Therefore, I am at a slight disadvantage in judging the clarity of these provisions. However, I believe that they are reasonably plain on a full reading.
It is important to give consideration to the matter of encouraging the mediator. I believe that the best thing we can do is to see whether or not we can build on a later amendment about codes of practice for mediators. One of the problems to be borne in mind in this connection is that which is brought to me by those who practise in this area, particularly lawyers. The client arrives in the lawyer's office. The first thing the lawyer says, having learned a little bit about the problem, is that the client must think about reconciliation. Having been told what a terrible life the client has had, how awful the whole thing is and how he or she wants to get rid of it as quickly as possible, if the lawyer's first response is that reconciliation must be attempted the client will probably say, "I will have to go to another lawyer because you are not on my side". I am sure that others with experience of these matters will know about that. If the mediator begins by trying to press people to become reconciled a question may be raised as to just where he or she stands on the matter.
On the other hand, a wise mediator—I hope that they will all be wise—will know when there seems to be a crack or a hope. It is that kind of position that I have in mind. It is easier to be anecdotal about these matters and I have heard it said that where a person who has run away from his wife and set up with someone else goes to a lawyer and gets a description of what things will be like after a divorce, particularly financially, he starts to wonder whether he wants to go ahead with the divorce; if he is on his own, the chances are good, but if the other party of the illicit arrangement is there, perhaps the chances are not so good.

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Those are just aspects of human nature. That is the sort of opportunity that a skilled mediator would seize to say, "Yes, it is true; it will be bad. Why not think about what you have already? Wouldn't it be better to try again? Your wife is willing to have you back, to forgive you for what has happened and to start again. Wouldn't that be right?" These are quite delicate matters. I believe that they are best covered in a code of conduct that brings them to the attention of mediators but, ultimately, leaves them as matters for professional judgment.
Amendment No. 54 was mentioned by the noble Baroness, Lady Hamwee. It is supported by my noble friend Lady Young and the noble Lord, Lord Jakobovits. The principle behind it is very much the same as the principle behind subsections (5) and (6); namely, that if the couple can get together again, the clock should stop. There are problems about what "living together" means in this context. As we know, the law has developed to allow people to be separate even when they live under the same roof. So some clarification may be required in that connection. But the principle behind the amendment is the same principle behind what I sought to provide. If the parties are attempting to make a go of it together, then that should be intimated to the court and the clock should be stopped until that attempt has been thoroughly tried out.
Amendment No. 55 is a consequence of Amendment No. 40. Amendment No. 56 suggests that "is to be disregarded" should be replaced by "shall not count": As I said, I shall take advice about that.
I have tried to be practical about the period suggested in Amendments Nos. 58 and 60. We do not want at all to discourage reconciliation, but we do not want to use an original statement for too long. The original statement that initiates the procedure should not be allowed to function for too long. That is why I believe that we should give a reasonable time to encourage reconciliation but not allow the original statement to continue to be effective as a start to this matter for too long. I thought that 18 months was about right. To make the period as short as 12 months very much constrains the possible attempt at reconciliation. I shall certainly take advice on the drafting and look again at that matter.
With regard to encouraging mediators to keep reconciliation in mind, I feel that the best place to deal with that will be during consideration of the amendments about a code of conduct for mediators or something of that kind, to which we shall come later. I believe that the principles behind what we are discussing at this stage are reasonably clear and agreed among those who have spoken.
4.45 p.m.
Baroness Elles: Before the noble and learned Lord sits down, I wonder whether he will take into account a question which I adumbrated yesterday, concerning notification of the statement to the other party. At the moment the year starts from the day that the statement is made before the court. Clearly, there could be quite considerable delay in the notice reaching the other party.
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That would mean that it might be considerably less than 12 months if that party happened to be away, disabled or in an accident. My noble and learned friend will know the kinds of situation which could arise. I wonder whether some discretion could be taken into account in allowing the time to run over the year, if there is a certain reason for doing so.
The Lord Chancellor: Certainly I should wish to bear that in mind when considering the regulations to make. Obviously, it is desirable that such a notice should be served as soon as possible, but there could be circumstances in which that is not possible for a number of reasons. Certainly, I should want to take those into account. I shall certainly have in mind for the regulations the point made by my noble friend and, if clarification is required, for the Bill itself. I shall need to consider that point.
The Earl of Onslow: I am sorry to have to ask the noble and learned Lord again to address his mind to this point. If there is a situation in which the clock is stopped and the reconciliation does not work, then by extending the period, I suggest, it has been made more likely, in an obtuse way, that the divorce cannot be achieved as early as would possibly be in everyone's interest. A failed reconciliation is probably more likely to end in greater bitterness than even a non-reconciliation scenario.
The noble and learned Lord referred to 15 months with three months out and an extension of three months at the end. If, in that three months, the reconciliation fails and one's old friends Mr. and Mrs. Bloggins are at each other's throats even more than they were before, it seems rather silly to extend the period by another three months. Am I perhaps being difficult?
The Lord Chancellor: No, certainly not. No Member of the Committee is being difficult. It is a matter of balance. There are all kinds of circumstances. Trying to legislate for human nature with great precision is difficult. The point is that both parties have to agree to stop the clock. That is the crux of the matter. There can be attempts at reconciliation, as the noble Lord, Lord Irvine of Lairg, supposed to be meant—I certainly do mean that—without the parties agreeing to stop the clock. But if the parties agree to stop the clock, I feel that there is a reasonable prospect of the reconciliation proceeding. I want to avoid the notion that by going into a genuine period of reconciliation, where both parties are agreed to have a good go at it, the party who has served the notice will feel that he has to start all over again. What we need to encourage is that people should try to get together and stop that period running.
The other side of the matter is that the purpose of the period is to demonstrate that the marriage has irretrievably broken down. It seems to me to be perfectly satisfactory that a period during which the parties agree that they are making an attempt at reconciliation which has reasonable prospects should not count to proof of that. If the attempt breaks down, I accept that there may be additional bitterness. It is one of the risks. I hope that the risk is well worth running in most cases. But if the attempt breaks down, there is a further cooling-off

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period. In fact, it may he all the more important to have a further cooling-off period, if there has been a certain rush of blood to the head as the reconciliation attempt broke down. The importance of a further cooling-off period may be even greater because cooling off is, perhaps, the best remedy that we can devise for sudden rancour.
Lord Stallard: Before the noble and learned Lord sits down, may I thank him for his long statement and explanation. However, there is a little doubt left in my mind. This matter has been argued from both sides and all round. It has been like going around in a circle. I am particularly pleased that we are beginning to reach some decision about the difference between mediation and reconciliation. We are not quite there yet but we are getting there.
I should like to direct the Committee's attention to the parliamentary brief from the Law Society, which is quite specific about the role of the mediator. A mediator does not provide marriage guidance counselling; a mediator will not offer legal advice; a mediator does not comment on whether an agreed solution is fair to both parties and properly protects their interests; and a mediator does not advise the parties independently. That is not exactly in line with what the noble and learned Lord said; but that is from the Law Society. I am not a member of the Law Society, but it seems sensible to me.
I am a little disturbed that we have indicated a definite "must" for mediation. If one party says the marriage is over, then they must go to mediation. However, we have not been so definite in regard to reconciliation, apart from in Amendment No. 35B where the noble Baroness, Lady Young, tabled something more definite. In that amendment a period is laid down for reconciliation in the same way as a period is laid down in the Bill for mediation.
The noble and learned Lord seems to be saying, "If the parties agree"; "If this"; "If that". There are too many "ifs" in relation to reconciliation. I should like that to be strengthened and for the Bill to be specific about the need for reconciliation before we go into the role of the mediator as laid down in the Law Society brief.
The Lord Chancellor: The noble Lord is speaking to an amendment that was discussed yesterday. Perhaps I have been too long in my explanations. That is the last thing I want to be; I want to make progress and I am trying to answer the questions posed.
In relation to the noble Lord's point, no period for mediation is stated in the Bill; the period is for "reflection and consideration". As I read out, the first branch is to reflect on whether the marriage can be saved. The period is for reflection and consideration and its first purpose is for reflection on whether the marriage can be saved.
I do not specify a period for mediation because it is possible that there will not be any mediation. If neither party wants it, as I said yesterday, we cannot enforce it. The Bill is drafted to permit a period of mediation, but it is not drafted as a period for mediation in the way that the noble Lord said. Most Members of the Committee
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distinguish between mediation on the one hand and reconciliation on the other, and marriage guidance is more appropriate to the second than to the first.
Lord Irvine of Lairg: I understand the noble and learned Lord to have given me a clear assurance that where there is an attempt at reconciliation not the subject of a notice to the court it will take place concurrently with the year for reflection and consideration. Therefore, if the attempt fails, an application for divorce may be made and the attempt will not operate as any kind of disincentive against attempting reconciliation.
Speaking for myself and being a firm believer in the proposition that Bills should be written in plain English and be readily comprehensible by those whose lives they affect, I invite the noble and learned Lord to consider this. Would it make for a clearer and more comprehensible Bill for all those affected if it were made plain that attempts at reconciliation not notified to the court can be attempted by the parties without prejudice to any of their rights under the Act? The noble and learned Lord may express that notion in whatever way he thinks right.
I note that the noble and learned Lord is of the view that a duty on the mediator to inform the parties that the option of reconciliation remains available is more appropriate to a code of practice than on the face of the Bill. But I invite him also to consider whether that is correct. To impose such a duty on the mediator would signal clearly the value Parliament attaches to encouraging reconciliation. To include it on the face of the Bill would accord with many of the sentiments expressed from a number of quarters in your Lordships' Chamber in regard to attempting reconciliation. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Young Baroness Young moved Amendment No. 41:
Page 4, line 15, leave out subsection (3) and insert—
("(3) Where an application for a divorce order under section 2 has been made by both parties to a marriage, the period for reflection and consideration is two years, beginning with the day on which the statement is received by the court.
(3A) Where an application for a divorce order under section 2 has been made by one of the parties to a marriage, the period for reflection and consideration is five years beginning with the day on which the statement is received by the court.").
The noble Baroness said: In moving Amendment No. 41, I shall speak also to Amendments Nos. 43 and 44. This is a completely different issue from the one we have just debated, but it is one about which great concern has been expressed at all stages of our discussions and from all parts of the Chamber. It relates to the period of one year for, as my noble and learned friend explained, "reflection and consideration". It is at the end of that year that a divorce can be granted and it may be granted against the wishes of one unwilling spouse. It is a short period of time. Furthermore, no reason needs to be given except the irretrievable breakdown of the marriage.
Many of us feel that that is exactly what sends the wrong message to everybody about the Bill. My amendment is designed to extend that period. It will be

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readily apparent on Amendment No. 41 that the period for reflection and consideration is extended to two years where both parties consent to divorce or five years where only one party seeks a divorce. That is what happens in the present law and I do not fully understand why we cannot stay with that even if we include the other provisions in the Bill.
Amendment No. 43 extends the one year to two years and Amendment No. 44, to which the noble Earl, Lord Perth, attaches his name, extends it to 18 months. I am conscious that these are three variations on the same point. I tabled them purposely because I want to use the Committee stage as a time for considering how the Bill may best be amended. I hope that my noble and learned friend will be able to do something to extend the time period, which many people—far more expert than I am—consider to be too short, particularly in the case of the unwilling spouse.
I am sure that others taking part will have been deluged, as I have, with correspondence. That situation is particularly tragic for older women who, I regret to say, are frequently "traded in" for a new and younger model, which is no longer regarded as a fault—I do not agree with that but that is what we are told.
Many people will argue (and I have heard it argued in Committee) that once everybody has made up their minds to go ahead, it is terrible to keep people waiting for longer than one year. But curiously, when one looks at the statistics, it is clear that in Scotland, where over 50 per cent. of divorces take between two and five, years—and in Northern Ireland over 70 per cent. take that time—there has been no public outcry. It seems to work perfectly satisfactorily. I do not understand therefore why it is thought that there may be a public outcry in England and Wales.
The reason why the statistics in Northern Ireland are so different is that the special procedure does not apply. As we know, the special procedure was introduced in 1973 as a statutory instrument and was not a decision by Parliament in quite the same sense. I believe that this is a matter which is very much at the heart of this Bill and which a great many people believe is quite wrong; namely, that at the end of a year it should be possible for one spouse to divorce the other against the wishes of the partner and in such a short period of time. Although I am quite happy to agree that none of these amendments may be correctly drafted or precisely meets what my noble and learned friend believes to be right, I hope that he will accept them in principle and will be able to come forward at Report stage with an amendment of his own. That would immensely strengthen the Bill and help those of us who are deeply unhappy about the provision.
I did not intervene in the last debate because I had already spoken on the subject of reconciliation, which is so important. The faith that one is going to pin on the mediator! He is this all-wise man or woman who will divide up the assets, deal with the acrimony and who will know the very moment at which to say to the couples, "You should seek reconciliation". Some of them are going to be splendid people, but life is not going to produce perfect mediators from one end of the
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country to the other. Life is not like that. If we are basing this legislation on that assumption, we are deluding ourselves as to what is going to happen. When we come to debate mediation, I shall raise more points on it.
The danger in this Bill is that we are giving many arguments to people who are divorcing and who know the damage it is causing, particularly to their children, quite apart from anything else, in order to make them feel a little more comfortable about divorcing by having all these different processes to go through. Of course, it is desirable if, in these unhappy circumstances, one can do all these things without acrimony. But in my experience of life people on the point of divorce feel acrimony towards one another most of the time and we cannot legislate to abolish that whatever else we may or may not be doing. But what we can do somehow, in the course of balancing the provisions within the Bill, is to help particularly the spouse who is being divorced against his or her wishes. I beg to move.
5 p.m.
Lord Irvine of Lairg: I take the view that in their proposals,Looking to the future, the Government get the balance on this subject right. Paragraph 4.12 states,
"A period of twelve months will provide sufficient time to establish that the breakdown of the marriage is irretrievable, and for couples who make acceptable arrangements for living apart".
Then in paragraph 4.13 the proposals address the very point which the noble Baroness, Lady Young, addresses through these amendments. It says,
"A shorter period will do neither of these, and a divorce could be granted without any adequate reflection and consideration. A longer period would offer no incentive for couples to deal with the past. Not only would it increase distress but it would act as an encouragement to walk out of the marriage, form a new relationship, and take on new family responsibilities before fulfilling the obligations and responsibilities towards the previous marriage and children. A longer period would also result in greater distress to the children, and increase their insecurity about arrangements for their future".
That I believed at the time, and still believe, represents sound judgment. What must be explored in the debate on this amendment is the purpose of the longer periods proposed because it is incumbent on the mover of the amendment to put his or her cards clearly on the table. I have to ask this: are these amendments put forward on the basis that divorce should be made more difficult to get and that people should be kept out of a divorce for longer as a matter of principle or, on the contrary, are they put forward on the basis that if both parties want divorce then they really need two years and one is not sufficient for reflection and consideration but if only one person wants a divorce, against the wishes of the other, then he or she actually requires five years for reflection and consideration?
The contrast between the periods proposed—two years for both parties, but five years for a single party seeking to divorce against the wishes of the other—suggests to me that the intention lying behind these amendments may be somewhat penal in nature and not that these longer periods are truly required for the statutory purpose, which is a sufficient period for

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reflection and consideration. Because I cannot discern a sufficient purpose for these proposed longer periods, I oppose the amendments.
Baroness Faithfull: Perhaps I may make just one comment. The period of one year has started long before the couple go to court. They have spent a long time coming to the conclusion that they will go to court. Perhaps they have spent a long time going to one of the organisations which deals with reconciliation. So in effect divorce has been considered for one, two or three years before they go to court. With regret, I disagree with my noble friend Lady Young. I believe that the period of one year is the end because there have been many times before when the matters have been considered. To have the period very much longer will be very damaging to the children.
Baroness Elles: On this occasion I regret that I do not agree with my noble friend Lady Faithfull. She has been talking about the situation where there has been acrimony in the family for some time and a decision has been made that they want to break up. I quite understand that there are such situations; but there are others as well and that is the difficulty of this Bill. One is dealing with human nature because, as in Anna Karenina, happy families are happy for all the same reasons, but unhappiness is different in every family. That has to be taken into account. Perhaps I may give another example. People may have been happily married until they are 40, 50 or 55 years of age. My noble friend Lady Young' touched on the subject of a man who goes off and has an affair. It could equally well be a woman, but in this case, as I happen to be a woman, I shall give an example of a man. That may happen within 24 hours and it may not be something that has gone on for three or four years. The affair might have taken place within a month or a week, or whatever. The man goes off with another woman. The shorter the time in which he can obtain a divorce and marry the other woman, the more power that other woman has on the man. Now that one no longer accepts that adultery is a fault and is not a ground for divorce, any woman—and she may be 40 or 45 years of age and not married—may say, "I am going to hang on to this chap because in a year he will get a divorce". The wife left at home does not have to consent. The man merely has to go to court and put in a statement saying that the marriage has broken down and that is it.
The more we realise that there are such situations, the better. I do not say that it is the only situation, but it is something which must be taken into account when discussing these issues. One has a situation where a person has been married for 20 or 30 years, has given up a career to look after the family, and has been happily married, as far as they knew, until perhaps last week or last month. So often one hears grandchildren discussing such matters and saying, "He is going through the male menopause"—I apologise for using that phrase. But so often one hears that as a comment from the grandchildren and the young on the father who has gone off with someone else. We must recognise that that is a genuine situation.
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Therefore, I wonder about the wisdom of having a specified term of one year in all circumstances. I know that what I am saying is not in accordance with the way in which the Bill is now drafted, but I very much hope that my noble and learned friend the Lord Chancellor will take the situations that I have described into account because they are now much more prevalent than used to be the case. Very often in the past a man who had had an affair would return to his family. That was often because of the stigma of divorce and because of a recognition of the value of the family. Regrettably, however, that is no longer what happens in today's climate. We have to recognise what happens when a woman is left at home, having sacrificed her career and with very little income. We shall come to the issue of pensions later. The current provisions will leave such a woman without the ability to make any decision about her future. That is why I very much support my noble friend Lady Young. I am not sure that 18 months is the correct period because I do not think that it is possible to specify any definite period which can meet each individual situation. That is the problem that I face with this Bill.
Lord Marsh: I know that noble Lords, like, I am sure, many other people, rightly have a high opinion of the knowledge and wisdom that is resident in this Chamber, but I think that we could overdo that in relation to the rest of the human race. I am sure that there are occasions when someone who has been happily married for 20 or 30 years meets an attractive young lady across a bar one night and breaks up the marriage in 24 hours, but that is no more common among the generality of the population than it would be in this House. Indeed, to suggest that either House of Parliament should take totally unto itself the possession of ultimate wisdom in relation to human relationships does not carry a great deal of weight. Those things happen, but they are not the normality. Most ordinary, half-intelligent people (on a par with many of us, including myself) recognise very rapidly at the lowest level the sheer horrendous nature of the economic consequences of such a break-up. Most of those people are moved by their children crying and getting upset, as most of us would be moved in such circumstances.
I agree with the noble Baroness, Lady Faith full. I find it extraordinary that it is suggested that after the collapse of a formerly loving relationship a year is too short a period in which to have thought about it, weighed up the consequences and realised what the break-up means for everybody concerned. If that is so, frankly I can see no reason why the parties should suddenly begin to understand all that simply because they are in the second year of that period.
Of course the situation of the abandoned spouse is tragic. It is not always the woman who is abandoned; it sometimes happens to the man. And of course, specifying one year, two years or five years is irrelevant because that spouse does not want a divorce.
I agree with the noble Lord, Lord Irvine of Lairg, who said that it is possible that the intention behind the amendment is simply to make divorce less likely, regardless of the circumstances. I do not think that that

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is merely "possible"; I think that it is the sole purpose of the amendment. The amendment is not logical otherwise. It is perfectly understandable that those who believe that divorce is wrong and should not happen want to stop it. I have no quarrel with that. However, there is another point of view—that to prolong something as intimate as a marriage and something which is so important as a foundation for a group of children past the point when it is clear that it is a vulgar and unpleasant charade, does no good to anyone. That is a difficult judgment to make, but I believe that the Lord Chancellor has got it right.
Lord Acton: I harken to the wisdom of the noble Baroness, Lady Faithful!, and agree with what the noble Lord, Lord Marsh, has just said. I believe that the noble and learned Lord the Lord Chancellor has got it right and that one year is the correct period.
5.15 p.m.
Baroness Platt of Writtle: I should like to express my sympathy with the position of an abandoned spouse—often, as has been said, an older woman, but it could be a man—who does not agree that the marriage has irretrievably broken down. After all, that party has as many rights in the marriage as the man or woman who has run away, but that point seems to have been forgotten. Like my noble friend Lady Young, I cannot see why it is proposed that the law should be changed. Therefore, I particularly support subsection (3A) of her. amendment and hope that my noble and learned friend the Lord Chancellor will reconsider the matter, bearing in mind that only one party to the marriage may think that it has irretrievably broken down.
The Lord Bishop of Oxford: I listened with great attention to the noble Baronesses, Lady Young and Lady Elles, because I know that they expressed the concerns of the many people outside this Committee who regard the amendment as crucial. However, I must ask myself what purpose would be achieved by extending the period. Would that somehow improve the chances of saving that particular marriage? Is the marriage more likely to be saved over a two-year period for reflection and consideration than over a one-year period? Sadly, I am not convinced that the extra year would reasonably strengthen the chances of saving a marriage. If the period was increased, would it act as a significant deterrent to those whose marriages are breaking up? Again, sadly, I believe that those who arc set on breaking up their marriage will live apart or will live totally separate lives, and that increasing the period will not act as any significant disincentive to a separation. In a way, I wish that it would.
If, by increasing the period, we could significantly reduce the number of divorces, there might be a lot to he said for it, but I do not honestly think that that would act as any kind of disincentive or sanction. I shall not mention the disadvantages of increasing the period because the noble Lord. Lord Irvine of Lairg, has already spelt them out and I have nothing to add to what he said.
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As I have said, I have listened to this debate with great attention and shall continue to listen to see whether any significant purpose may be achieved by increasing the period. However, at the moment, I have to say—albeit reluctantly—that I can see no significant advantage in that.
Lord Stallard: I rise to support the noble Baroness, Lady Young, in this amendment. She is right that this is the time and the place in which to air all the views on this matter so that the noble and learned Lord the Lord Chancellor can take them away and discuss all the points that have been raised.
I agree with the noble Baroness, Lady Young—the noble Baroness, Lady Elles, was also right—that we are not attempting to reduce the period; we are simply seeking to leave it as it is. As the right reverend Prelate said, there is no clamour for this change from people outside this Committee. Like the noble Baroness, Lady Young, I have received correspondence on this and there is certainly no clamour from people outside for making divorce easier. I accept that there is no clamour for making it harder, but there is a tendency in this Bill, and sometimes in some of the speeches that we have heard, to undermine the basis of marriage and to undermine marriage as a sacrament and way of life while promoting divorce as a better alternative as soon as any trouble arises. That is what is upsetting many people outside and that is what vexes me. That point of view must be considered seriously.
We should not simply say that the provisions should state one year because that is what we think, because thousands of people out there do not agree with that and their views must be considered. They have to be represented by someone and I am happy to help to represent those people who do not want divorce to be made easier at the expense of everything about marriage in which they have always believed. This Committee should at least consider seriously whether the provisions are best left as they are with periods of two and five years, or whether divorce should be available at the whim of only one of the parties who might say that the period should be 12 months. Is not that an incentive to increase the number of divorces?
I am still not convinced. My problem is that I believe basically that rather than assist the situation the Bill makes divorce easier. I am trying to overcome that, but I am having great difficulty in coming to terms with the fact that the Bill makes divorce too easy and is an incentive for people not to try to make the marriage work when there are difficulties but to take the easy way out. I know that the noble and learned Lord the Lord Chancellor will listen to all the points made in the debate. I hope that he will come back with something that tries to meet the fears and worries of those who agree with the amendment.
Lord Elton: I find this the most difficult area of the whole Bill. I am much attracted by what the noble Lord, Lord Marsh, said, although I would not have put it so forcefully. I see the persuasion of the remarks of the right reverend Prelate, but it cannot necessarily be right to treat marriages in which there are two parties who

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wish the marriage to end, and marriages where there is only one party who wishes it to end in the same way. I hope that my noble and learned friend will be able to point out the differences in what is in the Bill. If they are to be treated differently, then the question is: what is the purpose of treating them differently? Is it a penalty or is it a means of exploiting a different situation?
The noble Lord, Lord Marsh, suggested that the proposal was purely punitive, and, I think rightly, felt that many people support the amendment because they feel that the whole venture of divorce should be stopped at any price. I cannot number myself among them. However, a period of reflection may have a greater chance of producing positive fruit where one of the parties starts out thinking that there may be a chance of saving the marriage than it would when both parties are determined that the marriage should end. I hope that my noble and learned friend will address himself to that point, because that is the little place where, so far as concerns me, the door is ajar for the amendment which otherwise I would not be able to support.
Lord Monson: Before the noble Lord sits down, does he agree that Amendment No. 42 and the consequential amendments in the name of his noble friend Lord Coleraine address the problem that he poses, and in my view do so in a rather satisfactory way?
Lord Elton: I was slavishly following the grouping by not mentioning that that had occurred to me. My noble friend may yet put his toe into the waters of this debate.
Baroness Lockwood: I understand the motives behind the amendments, and I sympathise with those motives to a great extent. If one party is opposed to the divorce then obviously the situation is difficult. In those circumstances, as the noble Baroness, Lady Platt, said, in the majority of cases it is likely to be the woman who is the party offended against. In such cases, particularly with older women, real financial problems arise, because older women tend not to be as financially independent as younger women.
There are some serious problems to be tackled, but I am not convinced that the proposed amendments are the answers to the problems. The first amendment, for example, envisages a period of five years when one party is opposed to the divorce. Perhaps I may remind the noble Baroness that she said that we must take account of the fact that there is often a great deal of bitterness in divorce. If there is to be five years of bitterness, what kind of life would there be for either of the parties? What kind of life would the family have? Like the right reverend Prelate, I feel that extending the time period laid down in the Bill is not the solution.
The noble and learned Lord the Lord Chancellor advised us yesterday that one year is the minimum period, and that it can he extended where mediation or reconciliation is taking place. The matter does not necessarily have to be settled within a year. I would ask the noble and learned Lord the Lord Chancellor to elaborate on the effect Clause 10 would have in those circumstances. Clause 10 relates to orders preventing divorce in cases of hardship. As I read the clause, a
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divorce could he prevented if adequate arrangements had not been made. That would give the spouse being divorced against his or her will an opportunity to ensure that his or her financial well being was taken care of.
There is another amendment to which we shall come later which relates to the division of pensions in a divorce. Financial considerations will be terribly important in a divorce. So while I sympathise with the motives behind the amendments, I am opposed to them because I do not believe that they would prevent a divorce but that they would create greater unhappiness for longer.
The Earl of Perth: My name, together with that of the noble Baroness, Lady Young, is down to Amendment No. 44, which is grouped with Amendment No. 41. I have listened to the debate with great interest. My amendment mentions 18 months. If I had seen two years mentioned I might have put my name to that amendment as well.
The real issue emerged in the speech of the noble Lord, Lord Irvine, when he asked whether I supported the amendment because it had some sort of penal effect. The amendment would make divorce more difficult. I do not think of the amendment as a penal one, and I suspect that goes for the noble Baroness, Lady Young, as well. The amendment does two things, and that is important. First, it makes a couple contemplating marriage think about it more seriously. We have all seen the disastrous effects of divorce over the past years. I believe that the previous divorce Bill made divorce too easy. I hope the proposal will have the effect of making the couple contemplating marriage—this is the key—take it more seriously.
Secondly—here I find the remarks of the right reverend Prelate most disturbing—I believe that where there is a longer period the breakdown may be less likely, although I am aware that it must be a matter of opinion. With the longer period the couple will say that they have to try to make a go of it because they have another year, 18 months, or whatever it may be, to go. The longer period may have two consequences. First, it may make those contemplating marriage take it more seriously. Secondly, if the marriage goes wrong, a reconciliation is more likely.
5.30 p.m.
Lord Mishcon: I have three concerns that I wish to share with the Committee and they arise out of much of what has been discussed. My first concern is that under the Bill the procedure differs in a material respect, procedurally, from what happens now. Under the Bill, divorce proceedings commence with a bare statement upon which no advice is required. At present, when a person is contemplating a divorce he or she goes to a solicitor who, if he honours the ethics of his profession as I hope the majority of my colleagues do, makes it his first task to ask, "Why do you want a divorce? What are your grounds? Do you realise what you are up against?". When one is advising a woman in particular one asks, "Do you realise the loneliness of it all, quite apart from the financial aspects? Do you realise what is happening to the children if you go ahead with this?". I can tell the

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Committee that in a number of cases throughout a very lengthy life I have had the joy of seeing my client going out having changed his or her mind. That is not a possibility under the present procedure.
My second point is relevant to the amendment that we are discussing. The advice that would normally be given under this altered procedure is this. If the length of time is two years in respect of a "consent divorce" or five years where one of the parties does not consent the advice that anyone would give—and one does not have to be a lawyer to do it—is, "If you have the slightest doubt about filing that statement for heaven's sake put it in because there will be a long delay of two years or five years if you do not. Don't think too hastily but nevertheless buck up with your ideas and put that statement in". I do not believe that that is what we want.
I turn to an issue that worries all Members of the Committee; those who have spoken for the amendment and those who have spoken against it. It is the plight of the party to the marriage who wants it to go on. We have a procedure under the Bill and I wonder with Members of the Committee whether we can improve upon it. It is the procedure under Clause 10. I know that I shall be forgiven if I jump from one clause to another. Clause 10 provides:
"If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the marriage is not to be dissolved".
Subsection (2) provides that:
"Such an order...may be made only if the court is satisfied"—
and I look at paragraph (b)—
"that it would be wrong, in all the circumstances (including the conduct of the parties), for the marriage to be dissolved".
Will the noble and learned Lord in his ingenuity—and most of us credit him with that in addition to other qualities—reflect upon the procedure under Clause 10 when dealing with the problem that we are now meeting? Taking the partner concerned to be the wife, can he see whether at an early stage under some informal procedure she can say, "Please, court, I do not want this divorce. He has been carried away by this little floozie"—the Committee will forgive me using that word—"and she is young, she is pretty, and it is all a nonsense. He is a silly idiot. He is trying to pretend that he is 30 again but he's really 50 and he had better realise it."? Is there a way in which, informally, somehow or another, the matter can go before an intelligent registrar, judge, or whoever, at an early stage so that the party who does not want the divorce can be heard? The wise registrar, whoever he may be, will then have the ability to talk to the husband and say to him, "I have listened. Is it sensible? Do you really want to go ahead? You know that if I believe there is a hardship under Clause 10 I have the power not to give you a divorce order. Can't both of you go to see a marriage counsellor?".
What worries me about the Bill—and there is so much that I agree with—is that it looks like a cold, set procedure. I know all about mediation and that people rightly say that mediation is not conciliation. I am really fearful that under the procedure we have at the moment
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little people will be thrown into a pit when, if we thought out our family procedure relying on Clause 10 and making it more simple and humble, we could rescue them from the pit.
Lord Wolfson: I wish to—
Lord Carr of Hadley: I am a strong supporter of the principle of the Bill but I have one nasty niggle in my mind about it. It relates to the issue that has been touched on by the noble Lord, Lord Mishcon. Perhaps I may say to my noble friend Lord Wolfson that if I stood up firmly and did not sit down to let him speak first it was because on this point I wish to make what will be my only contribution to the debate.
If, like the noble Lord, Lord Stallard, I believed that the Bill made divorce easier I should oppose it. I do not believe that, first and foremost because it gets rid of that wretched thing the quickie divorce. In my view, one of the reasons why the quickie divorce was used so much was that the period of the other alternatives was so long. One of my reasons for supporting the Bill is that it gets rid of the quickie divorce.
I turn to the second reason and I speak not as a lawyer and, luckily, with no experience of dealing with divorce in my family, either close or distant. It seems to me that for the first time in our history we are seeking to put on the statute book a process which must be gone through before divorce can be obtained; which is designed to question whether the divorce is necessary by conciliation; and, if that fails, at least to ensure that before the point of divorce is reached the parties have made arrangements as to how to provide for themselves and, above all, for their young children. That seems to be a strong, positive case for the Bill.
My noble friend Lord Elton said that the provisions of Amendment No. 41 go to the heart of the matter. I want a period that is long enough to ensure that the processes of conciliation and mediation can be pursued to their utmost useful extent. Therefore, the period must be long enough. It is also my experience of life generally that too long a period takes away the urgency rather than adding to the urgency with which one goes about these matters. One cannot work out mathematically or logically any reasonable period. I cannot justify 12 months rather than six or 18 months. However, I have a feeling in my bones that 12 months is about the right period. It is long enough to do everything you have to do but it is not too long to make one say, "I am not going to be bothered with it" or "It is going to take so long that I have not the will or the energy to pursue it".
It is a matter of subjective judgment but I believe that 12 months is about the right time, provided we arc sure that the machinery and the resources for conciliation and mediation are in place before the Act comes into operation. I was heartened by what my noble and learned friend said yesterday, that he was not in any hurry to bring the Bill into action so as to make sure that all the proper framework is there first. That being so, I believe that 12 months is right and I have to say with sorrow to my noble friend Lady Young—I think this is the first time over many issues that I have found

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myself not agreeing with her—that I cannot agree with her on this point. I really believe that 12 months is the right time, with the provisos that I have made.
I do not want to sit down without drawing attention to the fact that my noble friend's amendment raises another issue. When dealing with a divorce on which both parties are going forward, the situation is different from a divorce where only one party wishes it and the other does not. I believe that situation requires a different period or, if not that, some different procedure. The noble Lord, Lord Mishcon, made his suggestion and, as a non-lawyer, I cannot really give an opinion about it, but I do want to add my urging to those of others to my noble and learned friend, that somewhere in this Bill we must take up the problem of the divorce when one party is asking for it and the other partner is not. I do not think the two cases can be or should be treated exactly the same.
Baroness Seear: I should like very strongly to support what the noble Lord, Lord Mishcon, has said. I am a very strong supporter of this Bill, apart from one reservation about the situation where one party, who is usually an older woman and who has probably been married to the man for a great many years, wishes to resist a divorce. That is a different situation from the others and it requires very careful consideration.
In Clause 10 there is surely the possibility of dealing more satisfactorily with this situation. If the divorce is stopped, in Clause 10, to meet the wishes of the partner who does not wish to divorce and if, after a period, it, still is not working, it is very likely—not certain but likely—that the unwilling partner will come to the conclusion that there is no future in it. However, a longer time will have been given for them to work at it and the case will have been given a really fair trial. One knows that this happens. Very often, as has been said, men will fancy a younger woman for a period of time maybe. Then that passes and the man will come back to the woman to whom he has been married for a long time.
If you can use Clause 10, as the noble Lord, Lord Mishcon, has said, to give greater protection to the older woman in those circumstances who is resisting divorce, at least it will give her the chance of a fairer deal and it might lead to a decision not to divorce in the end, when the excitement of his second youth has passed and he returns to the woman he has been used to for all those years.
5.45 p.m.
Lord Wolfson: I too share the view that one year is enough and therefore I support my noble and learned friend the Lord Chancellor and other speakers. Most of what is necessary has been said but I should like to make one or two points. First, obviously the circumstances leading to divorce are not always the same. This fact should be taken into account. You cannot have a blanket rule for such an emotional and sad issue. I think the length of marriage should be taken into account. In my own case I was married for 41 years before it was ended, and it was a sad thing to happen. Also, age is relevant. was in my sixties at the time and had the opportunity—
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I believe this is a very important point in respect of resettlement—to resettle with a very delightful lady who had been a widow for six years and had children of her own. If I had had to wait for five years it would have been impossible for her and would have landed me in a situation where I would have been really too old to remarry sensibly. All the children in this particular case were married, and I believe that is another issue which also has to be taken into account.
I saw a film, as no doubt many of your Lordships have, called The War of the Roses, where the stresses and strains in a marriage ended up in the most horrific manner, with the participants either killing each other or committing suicide in a home which they could not share together properly. I think it is advisable to take account of all the views expressed here. One year seems to me to be right. There should be some allowance made for length of marriage, age, opportunities for resettlement and the fact of not having dependent children.
The Earl of Onslow: There is one more point which needs to be alluded to and that is this. Sometimes there have been cases of a marriage having broken down and one partner who, under the present law, could appear to be the innocent party has moral objections to divorce and will do nothing whatever to consent to it. However, for the sake of argument, let us assume that we all know of cases like this. The wife bends the husband's ear something rotten and finally he goes away; or he bends her ear and she goes away and he says, "I am not going to let you have a divorce". I may say that my religious beliefs do not allow me to do that. It seems to me that we should not always assume that the person who will not allow the divorce is being reasonable. I do not know whether that fact has been brought to your Lordships' attention but it happens in human affairs.
Baroness Macleod of Borve: We started this afternoon by talking about the children. To me the children are always paramount, and we have not mentioned them in discussing these amendments. I think that the longer the parents are unhappily together with children, and the children have to see it, the worse it is for the children as they grow up. Therefore, I would go along with my noble and learned friend the Lord Chancellor and have the one year, because of the children.
Lord Meston: As the noble Baroness, Lady Elles, said, it is not possible to generalise; but I tend to the view that parties for the most part begin the divorce process towards the end of a marriage which has been in trouble for some time. Your Lordships may take the view that in some cases one year is too short, but one thing I am clear about is that five years is too long. Under the existing law, surprisingly, divorces after a five-year separation are quite often those in which more acrimony and unhappiness are generated than in almost any other type of case. One party will not consent to the divorce and cannot or will not use grounds which may be available for some other form of divorce.
That is the point which the noble. Earl has just mentioned. Neither party can get on and reorganise the rest of their lives, and the longer the period—it is

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inescapable—the greater the resentment, often to the detriment of the children and indeed of the grandchildren. If one is thinking in terms of punishment, I suggest that there are many cases where a five-year separation before divorce can be finalised punishes both parties and their families.
I ventured to mention on Second Reading one of the unhappiest divorce cases in which I have ever been involved. In fact, it was the wife who wanted to end the marriage. She had decided to go off after a very long marriage, but the husband would not divorce her. Rather stubbornly, he wanted to hold on to the marriage which had lasted for over 40 years. In the end, the wife brought a petition on the grounds that the parties had been apart for five years. However, the husband denied that they had been apart for that time. He said that it was a lesser period when the divorce petition was filed with the court. There then followed what was one of the most unhappy days that I have ever spent in a divorce court.
The bitterness and unhappiness of that couple was quite distressing to behold. In the end, the judge accepted the husband's case that they had not been apart for five years. Therefore, the husband did not get what he wanted—namely, his wife back—and the wife did not get what she wanted which was a divorce. They limped on with their future unresolved until eventually five years could be proved to have elapsed to the satisfaction of the court. I have to say that I left the court that day thinking that if only that couple had been seen by a professional mediator or counsellor at a much, earlier stage, they probably would not have reached such a sad situation.
I suggest that the noble Lord, Lord Mishcon, has put his finger on the point. Rather than worrying about the period, we should be looking more constructively at what can be done for both parties either under Clause 10 or, possibly, by giving the court a discretionary power to extend the period beyond a year as is suggested in forthcoming amendments.
Lord Stewartby: When I came to the debate this afternoon, I did not have any clear view as to whether I thought that any of the three amendments ought to be supported. I am still of that point of view. However, I believe that a number of issues have emerged from the debate which are most important as regards the overall balance of the Bill. That is why it is so difficult to look at any one clause, or any one part of it, in isolation from the rest.
If, as my noble friend Lord Can said, 12 months is the right period, we must accept that it is a matter of judgment between conflicting issues. Of course it must be possible in certain cases that a longer period might lead to a greater chance of reconciliation. However, it must equally be possible that a longer period in other cases might lead to greater recrimination and less chance of reconciliation. What we are trying to find instinctively is not a happy medium, but, perhaps, the least unhappy medium which would balance the conflicting issues.
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My mind is quite unresolved on the matter. I have an instinct that 18 months might be necessary in some cases rather than 12 months. However, I should like to reassure the noble Lord, Lord Irvine—as, indeed, did the noble Earl, Lord Perth—that many of us who have contemplated the question of the length of time do not do so for the purpose of any penal intent, or specifically to make divorce more difficult. Any change in any of the provisions in whatever direction is likely to make divorce more difficult for some people, and will, possibly, make it less difficult for others.
We must try to strike a balance over the whole Bill as we see its other provisions unfold. That is why I believe that the point made by the noble Lord, Lord Mishcon, regarding Clause 10 is most important. It is not necessarily the only part of the Bill which needs to be seen in conjunction with the clause that we are now discussing; but it is the nexus of procedures and the nexus of provisions which will ultimately determine whether the Bill achieves the improvements which we all hope it will in relation to resolving the problems connected with divorce.
I should like to emphasise and support the comments which were made by several Members of the Committee about the lady on the bar stool mentioned by the noble Lord, Lord Marsh. It seems to me that the temptress on the bar stool symbolises one particular area of acute difficulty in the whole matter. I came across one of those characters once.
Noble Lords: Oh!
Lord Stewartby: I should hasten to tell Members of the Committee that she came to a surgery in my former constituency and tried to persuade me to do everything possible to enable her to gain permission to live in this country, so that she could exert her charms on one of my constituents.
One should never take any general issue from one case. But the case is so dramatic that it illustrates my point very emphatically. The man in question had been to the United States to take part in a darts match. On the bar stool afterwards, he had found the temptress—or the temptress had found him. She was unrelenting in her efforts to secure his affections. I cannot remember exactly how much resistance to the situation came from his wife. But eventually the temptress succeeded in her objective: she married my constituent and murdered him three years later.
Noble Lords: Oh!
Lord Stewartby: I do not recount the story in order to obtain such a reaction from Members of the Committee. Indeed, I do so because it made a very profound impression on me. It made me look at the potential implication of temptresses rather more carefully thereafter. Although I have slightly dramatised the story by using such language, I believe that there is a very serious issue to be considered which involves the question of unwilling spouses and, in some cases, such potentially short-term infatuations which may disrupt the marriage but which could easily blow over in a certain period. Whether it is through the proposed

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clause, the other amendments or by virtue of other parts of the Bill, I believe that that is an area for which it is essential that the Bill should provide appropriate measures.
6 p.m.
The Lord Chancellor: I agree with the view that the proposed amendments deal with matters which are at the very heart of the Bill. I believe that it is necessary to have a period for consideration and reflection. That period should be a minimum period and fixed by law, as a clear indication of the value and solemnity that we attach to marriage. However, the question of what that period should be is a difficult one and is a matter of judgment.
The Government set out in the White Paper the reasons which persuaded us that a year was the right period. There is another point to be made in that connection to which the noble Baroness, Lady Lockwood, referred and which bears on the point raised by my noble friend Lord Carr of Hadley. The period is for consideration and reflection. One of the conditions in addition is that there should be a resolution of the matters that arise between the parties consequent upon the divorce. That cannot be allowed to produce a divorce in less than a year. However, if the processes require longer than a year then, automatically, that will happen by virtue of the provisions.
I believe that we have met the point raised by my noble friend Lord Carr of Hadley. We have ensured not only that the period, whatever it may be, is not less than a year—and that is the important effect that I mentioned—but also that there is flexibility to ensure that what is required in the way of dealing with the situation between the parties is available in point of time.
As I said, we have before us a difficult question. It is one which requires judgment; and, indeed, Members of the Committee will be required ultimately to exercise judgment on it. My noble friend Lady Young has proposed various amendments. I do not believe that there is any real problem so far as concerns drafting. When we reach the stage where a definitive conclusion has to be taken on the amendments, it will not be a drafting question; it will be a question of judgment as to what is the right period. The longer the period the more it is necessary to think what the period is intended to do.
There is also the point that the longer the period the more pressure there is for special arrangements to be made for exceptional circumstances. It is extremely important that marriage is recognised as having the consequence of a definite period as a minimum associated with it. I am not very much in favour of extending the period if, as it were, the counter to that is a power in the court to shorten the period in special circumstances. That blurs the message which otherwise a clear minimum period sends.
As is often the case, there are problems in relation to individual cases. The case of the abandoned spouse who resents very much being abandoned has been referred to. Statistics tend to show that the proportion of these
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cases in the total is rather small, and the idea that they are particularly exemplified by one gender rather than the other is not sound. That can happen both ways; I am sure that infatuation is not entirely a male preserve.
I agree that this is a serious problem which we need to consider. If the arrangement is to have extended periods related to particular cases, then Clause 10 is the way to deal with that. It is not right to impose as a minimum period a period that deals with exceptional cases only. That is imposing on others an unnecessary wait. I agree with my noble friend Lord Carr of Hadley that the effectiveness and purpose of the period would be damaged if it is too long for any reasonable utility and for the purpose for which it is set up. So far as that is concerned, this Bill makes a reasonable provision.
The noble Lord, Lord Mishcon, had concerns, which I will now address. Not all of them were precisely raised by this amendment but, nevertheless, they are important and have to be addressed.
The procedure in this Bill requires an information session at the outset in which parties contemplating this step, before they get into anything at all connected with the court, are given as much information as possible, in as effective a way as possible, about the various services available to them. This would include a solicitor if a party wants a solicitor, although it may he a party would prefer, or think it wiser, to go to a marriage guidance counsellor or someone with more specific skills that the party may require. Occasionally problems of illness arise and specialist advice may be required.
A party may be fortunate enough to receive wise advice—I hope that will be the case, at least on occasion—and that I very much want to encourage. The whole idea of the information session preceding any step at all is that people are given full opportunity and advice to think before they get into any process. If they do get into a process, the purpose is as I have said.
The third point is the plight of the party who wants the marriage to go on, and the noble Lord directed our attention to the possibility of using Clause 10 as the ultimate way of dealing with special cases. I feel sure that that is right.
The precise procedure that would be involved in seeking to invoke Clause 10 is not laid down in detail. The procedures would be subject to laying down details in regulations and in rules of court, with a degree of flexibility to take account of what actually happens; but that is the area in which special cases should be dealt with.
One or two of your Lordships referred to the distinction between consent and no consent. I personally believe that consent or no consent is not as relevant to this situation as at first sight appears. Of course, if there is consent there would be no question of seeking to invoke Clause 10 or the hardship bar. The distinction between the two cases is preserved by the fact that a person who does not consent will have the opportunity of recourse to the hardship bar.
It would not be right to distinguish between consent and no consent cases for showing that the marriage has irretrievably broken down. In that case the minimum period should apply whether or not the parties are

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anxious to divorce because, apart from anything else, it is right that before the divorce is granted they should consider what arrangements should be made.
One has to remember also the children. I want to guard against a situation in which two rather selfish parents are so concerned to safeguard what they see as their definite futures apart—and therefore want to get a divorce as quickly as possible—that they neglect the responsibilities they have already incurred in their union in which children have been born. As I said, it is not right to distinguish in the minimum period on that account. But I do see, and agree, that where parties have not agreed the option of applying under Clause 10 should be considered.
I agree that that is one of the most important parts of the Bill. What I have in mind is that if this matter is to be taken forward, as I think it should be, to an ultimate decision on Report, I will ensure that the drafts supporting the various periods are adequate, and then the decision as to which period it should be would be a matter for the House, on a free vote, at that stage.
As to Clause 10, obviously there are amendments dealing with that and we will have to look at that later. Clause 10 gives the option of special arrangements, in relation to particular cases, to alter the minimum period, which some of the proposed amendments do not, and your Lordships may feel that, in principle, Clause 10 is the better route for that purpose.
As I said, these are extremely difficult matters. They require very careful consideration. I have not seen' evidence that would suggest that if a period of longer than 12 months is stipulated as a minimum that is likely to be particularly optimistic in terms of reconciling differences between a couple. On the other hand, for particular cases perhaps special provision should be made, and Clause 10 at least provides a basis on which that could happen.
6.15 p.m.
Baroness Young: I should like to thank my noble and learned friend for what he said. This has been a very useful debate. It has covered a variety of situations. I welcome what my noble and learned friend said in his last remarks. That is very much a matter for consideration between now and Report stage. Many speakers taking part in this debate have not previously taken part in the debate on the Bill.
We need to hold on to what we want to achieve with the Bill. I am quite clear in my mind that I should like to see marriage buttressed, because I believe that the high divorce rate is having a devastating effect on society. Every time one opens a newspaper one reads of more of its effects. I do not have to spell that out. The noble Earl, Lord Perth, made an extremely important point. He asked what signal this piece of legislation will send out to young couples contemplating marriage, let alone couples contemplating divorce. One of the signals which will go out, as the Bill stands, is that at the end of a year one can get a divorce, and one can do so against the wishes of the other partner. I acknowledge that it does away with the quickie divorce which can be
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obtained in less than six months. That is a benefit. On the other hand, if we weigh in the balance the fact that anybody who wishes to divorce can do so at the end of a year, then divorce is being made easier.
I find it distressing that when I make these remarks I am accused of trying to punish a lot of people. I am not trying to punish anybody. I believe in marriage. I believe in individual responsibility. In particular, I believe that couples who have children should make a great effort to stay together and look after them. I make no pretence that other alternatives are better. Of course there are some circumstances in which divorce is right. But there is a great deal of talk, which was apparent in the course of the discussion today, to the effect that we must try to make divorce possible for the man who wants to go off with a younger woman, or the woman who wants to go off with another man, or the woman who pushes her young husband out of the house because she is bored with him. It is implied that we must understand such circumstances. Of course such things happen, but at the end of the day we ought to be concentrating on marriage. If we do not do that what kind of lead do we give, to young people in particular?
I turn to my noble and learned friend's profound remark that the period of a year is a matter of judgment. It was a matter of judgment to those who wrote the White Paper. The noble Lord, Lord Irvine, can no more show that a year is perfect than I can show that 18 months is perfect, or indeed that six months is. It is a matter of individual judgment. It is a judgment which has to be made in difficult and differing circumstances. Therefore, I am pleased to hear my noble and learned friend say that we should consider the different lengths of time. We should certainly consider the point raised by the noble Lord, Lord Mishcon, about hardship. When we come to Clause 10 I hope that we shall do so because there is much to be debated on that particular point. I welcome anything which enables us to concentrate on first principles.
I turn now to the question of children. I am very sorry to disagree with my noble friend Lady Faithfull on this subject. If one believes, as I do, that the Bill will probably result in more divorces, then of course more children will suffer. I am sorry that the noble Lord, Lord Acton, and the noble Baroness, Lady Macleod, felt that children would be better off. The truth of the matter is that all modem research shows that, difficult as marriage may sometimes be, children are better off in a difficult marriage where the partners stick together than if they divorce.
We all have endless evidence, having met young people whose parents have divorced. I know of a 15 year-old girl whose parents have recently divorced who spends almost all her time at a friend's house because she feels she has no home and there is nowhere where she feels at home. I have met people in their twenties whose parents have divorced who have never recovered from that. Therefore, let us not think that this is an easy matter. It is not. That is why I believe that we have to consider the matter very carefully.

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I have been given a great many examples. Lawyers are full of examples. They deal with divorce all the time, and no doubt if there is more divorce it makes no odds to them. However, every year 20,000 to 30,000 couples edge towards divorce and then withdraw from the procedure because they have had second thoughts. That must be welcome. Generally, experience shows that if one has longer to have second thoughts one is more likely to have them, although that may not be so in every case. However, one opens up the possibility for those second thoughts with a longer period of time.
My noble friend Lord Elton made an important point. Of course there are differences between the case of a couple, both of whom consent to divorce and where there are no children, a couple where there are children and both consent, and a couple with children where only one partner wants a divorce. We are dealing with a variety of different circumstances. As my noble and learned friend said, it must be right to regard the period as a matter of judgment.
I was very glad to hear my noble and learned friend say that he would not want the period to be extended if it could be shortened. I agree with that. However, the last thing I would wish would be for the period of a year to be shortened. That would send out an even worse signal than the one I fear we are already sending with this Bill.
It is worth reminding the Committee, in case we should have forgotten, that every single piece of divorce legislation has been accompanied by an increase in the number of divorces. Although I know that that fact has' been dismissed because divorces increase for many other reasons, if we believe that legislation has no effect on behaviour there is no point in any of us sitting here at all. We must take the matter very seriously.
I am extremely grateful to those who have supported me, in particular my noble friend Lady Elles, the noble Earl, Lord Perth, and the noble Lord, Lord Stallard. It was the amendment of the noble Lord, Lord Stallard, supported by the noble Lord, Lord Stoddart, which we considered at the beginning of these proceedings which identified the criterion against which we should measure every amendment, namely the buttressing of marriage. We should consider whether they support marriages that are in difficulties and parents who are struggling under great difficulties and temptations to bring up children in an extremely difficult world, one that is far more difficult than the world in which I grew up. We should judge every single amendment on the basis of whether or not it would buttress marriage. That is the real question before us.
It is not a question of satisfying adults who wish for some reason of their own to behave in some specific way. It is whether or not the provision buttresses marriage in the interests of the children. It is a matter of deep regret to me that the right reverend Prelate the Bishop of Oxford feels that we must stand on this period of one year. To feel that one does not have the support of the Church on these matters I find deeply upsetting.
The Lord Bishop of Oxford:Perhaps I may say this to the noble Baroness. Speaking for myself, and I think
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for various other bishops, we yet remain to be convinced of the advantage of increasing that period. We are still open to the argument but we are not yet convinced.
Baroness Young: I thank the right reverend Prelate. I appreciate that. I believe that the right reverend Prelate stated that he did not think that extending the year would improve the chance of saving marriages. However, what it might just do—it is again a matter of judgment—is to send a signal to those embarking on marriage. For those embarking on marriage, it is a hard undertaking. It seems to be thought that marriage is easy, but it is not. It is not easy for anyone, whether or not he or she is happily married. It is something that one has to work at. Marriage requires a great deal of unselfishness, and thought for someone else.
If we say at the beginning of a marriage, "Of course, if it all gets too difficult you can pack it in at the end of the year", one is sending a very strange signal to the country. The noble Lord, Lord Marsh, shakes his head. That is the signal which will be sent to the young people who will be the first to be involved under this legislation. Those who are 16 now may marry in five, six or seven years' time. There will probably he that many more divorces at the end of the year.
Lord Marsh: I was simply shaking my head as an indication that there could possibly be a different view.
Baroness Young: I entirely agree. We can all have different views. I do not happen to agree with the view expressed by the noble Lord, Lord Marsh, and we can agree to differ without, I hope, any hard feelings.
Like the noble and learned Lord, I think that the issue is central to this piece of legislation. It is very important. Perhaps we all need to reflect carefully on a number of issues: the length of time proposed; perhaps an amendment to Clause 10; and other considerations which may apply. A number of constructive suggestions have been made. I hope that perhaps I may have an opportunity to discuss these matters with my noble and learned friend before we reach Report stage.
The Lord Chancellor: Perhaps I should say that my noble friend has always an opportunity to discuss anything she wishes with her noble and learned friend.
Baroness Young: Perhaps we might talk about the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Coleraine Lord Coleraine moved Amendment No. 42:
Page 4, line 15, at beginning insert ("Subject to subsection (3A) below,").
The noble Lord said: Amendments. Nos. 42 and 51 are tabled in my name. During a previous debate at an earlier stage, my noble friend Lord Elton invited me to dip my toes into the debate; I think that he meant that debate. However, in view of the manner in which amendments are grouped, and what I consider to he the relative importance of this amendment, it seemed better procedurally that I did not seek to advance my amendment into an earlier group.
Amendment No. 42 is a paving amendment. The short purpose and intended effect of Amendment No. 51 is that unless and until husband and wife are agreed that their marriage is at best an empty shell, the divorce process shall not end but may continue for up to three years from the making of the statement which originated the process. That would be an additional two years.
Amendment No. 51 inserts the new subsection (3A) to Clause 7 of the Bill in the following terms:
"In any case where, by the end of the period of one year, one only of the parties has made a statement, the period for reflection and consideration does not then end but continues until the end of a further period of two years unless, in the meantime, the other party makes a statement, in which case the period then ends".
I intend to put forward for discussion this afternoon the case that we must distance ourselves a little in the Bill from unilateral divorce obtained on the request of one party only against the wishes of the other party. I make it clear to the noble Lord, Lord Irvine of Lairg, that that is my agenda. Although I appreciate that the party who may be prevented from obtaining a divorce as quickly as he or she may wish may be in a position of hardship as a result of the amendment, if it were accepted, that is only a consequential effect of the amendment. It is not my intention that the amendment should punish anyone.
The same case has already been cogently argued in debates on amendments in the name of my noble friend Lady Young which sought a return to the fault-based system. In the absence of my noble friend Lord. Ashbourne, my noble friend also spoke in support of an amendment calling for a total ban on divorce except by the agreement of both husband and wife.
I support most strongly the intervention of the noble Lord, Lord Stoddart of Swindon, pointing out that the Bill simply does not send out the right message so long as it proclaims that marriage is no more than a piece of paper. The marriage which this Bill offers resembles closely the piece of paper which Neville Chamberlain held in his hand with such good intentions so many years ago.
Having said that, I have to say to the Committee that I find it difficult to support the amendments so far debated which have the effect of writing unilateral divorce on demand out of the Bill, were it possible to improve the Bill in some other way. It is another way of achieving that objective that I wish to address now.
We are aware that the Zeitgeist demands that anyone who suggests that the divorce process should be in any way extended is told that to place obstacles in the way of a speedy and harmonious divorce will damage the harmonious relationships between the former husband and wife and their future spouses, and their subsequent spouses and lovers, and will hurt all the children involved in the marital restructuring and what comes after. The answer to that is that if a divorce is capable of being harmonious, it will be harmonious. However, my amendment unfortunately does not address the case where a harmonious divorce is likely to be achieved. It addresses the case where, frankly, husband or wife drags his or her foot. The reason may be a good or bad one.
In the language of the Zeitgeist it has to be bad. The Law Commission report and all that has followed make it quite clear that a husband or wife who does not wish a divorce is likely to be stereotyped as unreasonable, irresponsible or vindictive. From the other point of view, the party who starts the divorce process will be seen not as abandoning his family and marriage but as escaping from a loveless marriage.
In my submission, we would be acting with grievous injustice were we to legislate on the hypothesis that a husband or wife who expressed a wish that there should be no divorce were to be treated with contempt.
What of the children in all this? The period of uncertainty will be lengthened; the rancour may continue. But there will be a longer period in which the parties will have the opportunity to adjust to new residential and contact arrangements for their children, a longer period before the parties can enter into new marriages, and a longer period of adjustment for all concerned. Those may or may not be bad results. Against the spirit of the Bill, I would assert that the general rule should be treated as applying: that whatever is not done in a hurry is likely to be better done in the long run.
There is the important question whether the children will be unduly harmed by delay in the divorce. The issue has been raised from time to time. It comes back to the much more important question whether more harm is done by parental conflict than by divorce itself, because the effect of delay and uncertainty is only one aspect of the total effect of conflict.
At col. 824 of the Official Report yesterday I questioned the received wisdom which was put loosely because it is a complicated subject. The received wisdom is that the conflict causes more distress to children than the divorce. That proposition is put forward again and again in the White Paper and unidentified recent research is given as the authority for it. I asked my noble and learned friend at some point to provide chapter and verse to flesh out the assertions and I hope that he will do so in due course.
If we legislate for divorce on unilateral demand, however the proposals are wrapped up with pretty ribbons and pious protestations that the proposals are supportive and not destructive of marriage as an institution, we shall paradoxically create a situation where we simultaneously destroy the institution of marriage and destroy the need for any legislative framework for the ending of civil marriages. For if marriage is to be no more than a piece of paper, a casual short term contract, who, I ask, will need the right to divorce? All that it will achieve is the right to contract another similar marriage. More importantly, we also damage the incentive to enter into marriage and to undertake the good commitments which marriage should involve for couples who may be pondering between marriage and cohabitation.
The last point which I wish to make is one which I have made before. It is that although we cannot, by passing laws, hold marriages together, we can at least pass laws which provide a framework of support for marriage. For a couple embarking on marriage, unless

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they are cynically uncertain of each other and themselves and of the likelihood of their being constant to each other and to their vows, it will be a strength to know that without mutual agreement neither can abrogate the marriage. There can be no abrogation of marriage on demand. In that way trust will be fostered and with trust there will be a better chance that the marriage will deepen and thrive. In the last resort, with that thought in mind, I beg to move.
6.30 p.m.
Lord Monson: I could not possibly support the efforts of the noble Baroness, Lady Young, to lengthen the period proposed from one year to two, or even 18 months in all cases. Incidentally, I did not wish to interrupt her closing remarks on the previous amendment, but I believe that she was mistaken in suggesting that marriages could be terminated after one year under the Bill as it stands. As I understood the comments of the noble and learned Lord the Lord Chancellor yesterday, in responding to the amendment of the noble Lord, Lord Meston, no marriage could be terminated in less than two years from the date of the wedding.
However, there is something to be said for the compromise represented by the pair of amendments, Amendments Nos. 42 and 51. The occasions when one hitherto happily married partner in a marriage runs off with a younger person after many years, indeed decades of marriage, is by no means as infrequent as some Members of the Committee have suggested. A longer period would give more time for second thoughts and for disillusionment to set in in such instances.
But I wonder whether the extra two-year period suggested by the noble Lord, Lord Coleraine, goes a little too far. An extra 12 months would probably be adequate. However, having said that, I broadly support the principle of the amendments.
Baroness Young: I wish to speak briefly because this amendment is linked to those which we have just been debating. I hope that when my noble and learned friend replies he will consider this amendment—which addresses a slightly different point from those which I addressed—in the context of the whole issue of extending the time.
I understand the object of my noble friend Lord Coleraine. The amendment's effect will be to ensure that the period for reflection and consideration will begin only when the other party has been informed and notice has been served in accordance with the rules of the court. I hope that what I say is correct.
Lord Coleraine: I believe that the noble Baroness is addressing another amendment which still has to be moved.
Baroness Young: I apologise to the Committee. In the excitement of all the amendments and the amount of paper with which I am surrounded I made a mistake. However, I hope that my noble and learned friend will consider the amendment with the others.
The Lord Chancellor: I have addressed the principle of the amendment in what I said on the previous one.
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I believe that there may be special circumstances where the parties do not both accept that the marriage has broken down. Merely to make consent vital within the period is to ignore the nature of marriage as requiring continued commitment. It seems to me that the responsibilities associated with marriage require to be carefully considered.
Is it suggested that in the non-consent case the period of three years will realistically be taken up by a kind of consideration? I do not know how likely that is. If the period is reasonable for consent, how does it become too short for considering matters where the parties do not consent? I understand that in some circumstances the settlement of outstanding issues between the parties may take longer than a year. Where there is no consent that may be so, but the present provisions in the Bill try to take account of that. I do not understand how a different period for cases of non-consent is justified by reference to what would take place in the longer period.
My noble friend asked about the basis for various matters referred to in the White Paper. At this stage in such a debate it is important to focus on the point which appears to me to be vital. It is that unnecessary trauma introduced into the divorce process is damaging or apt to be damaging to the relationship between the parents being divorced and the children. Therefore, it is not directly relevant to consider other matters. We are discussing what the divorce procedure should be and in that context it appears to me that the evidence shows that the relationship with both parents is important after the divorce. It is vital at this stage that we do nothing to damage that, on the assumption that the divorce will take place.
For that purpose, one compares the situation of two families, both of whom have been divorced in different situations. The first is where the divorce process has generated unnecessary conflict between the spouses. I am not saying that there will not be conflict, trauma or bitterness between the spouses. If we compare the situation where the divorce process has generated unnecessary conflict between the parties with the situation where it has not, the relationship between the parents and the children after the divorce is likely to be better in the case where there is no unnecessary trauma than in the first example.
I do not wish to quote all of the evidence on this matter, but I refer to the Exeter Family Study to which repeated reference has been made. The situation of conflict is described in the following way:
"The data from this study shows that the particular outcomes measured for the study children tended to be worse in intact families with high levels of conflict between the parents than in families where conflict levels were low. In agreement with nearly all other studies, the data also suggests that violence in the family has a strong association with low self-image and other poor outcomes. It is likely, moreover, that both conflict and violence are under-reported in the intact family group.
In this study, however, it was possible to compare the effects of family disruption on children in re-ordered families with those of conflict and/ or violence on children living in intact families. From the multivariate analysis carried out, it appeared that the most significant factor of those examined was the re-ordering of the family—the loss of a parent on one or more occasions—rather than the presence of serious conflict or violence that was most closely associated with children's poorer outcomes as measured. This is

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consistent with a recent study in Oregon, which found a cumulative and linear relationship between behavioural measures in a group of boys and the number of family transitions that they had undergone. In the present research, violence in the past relationship between the child's biological parents was reported by seven out of 19 resident parents in the re-disrupted families".
I continue:
"Meanwhile, it is clear from previous work that it is not the loss of a parent per se that appears to be associated with a poor outcome. The outcomes associated with loss of a parent by marital breakdown are different and generally more adverse in the long-term than those associated with bereavement.
It is also clear that where major conflict and intra-family violence has been a feature of the marital relationship, the act of separation is often accompanied by immense relief for those who have been the victims or observers of the violence. It would follow from an understanding of the psychological processes involved that the children would experience a stability after the ending of a violent parental relationship which would enhance their well-being, at least in the short term. But the response is complex. Children's relief is also often tempered by concerns about the non-resident parent who may, or may not, have been violent to the child and may, or may not, have been a 'good parent'. The importance of the relationship with the non-resident parent, usually the father, has been written about extensively, particularly by Richards [and others], and is confirmed by the data from this study. Children expressed concerns about the non-resident parent being on their own and not having anywhere to live. Children were also concerned if contract arrangements were nebulous, and did not always find it easy to discuss the concerns for one parent with the other. Richards' study underlines the importance to the child of the biological parent, whether the family live together or not".
I cannot read out the whole of the report because it is obviously lengthy. I should like to read just one other. passage on pages 57 and 58:
"What the data does not show, however, and did not set out to demonstrate, is whether the outcomes would have been better if parents in unhappy marriages had stayed together 'for the sake of the children' instead of separating".
There is a lot to study in the report, but I take from it the important point that where divorce is postulated a good relationship with both parents should subsist after the divorce, and everything that we can possibly do to secure that is well worth doing.
Lord Stoddart of Swindon: I am interested in what the Lord Chancellor has just said. I shall have to look at the quotations from the Exeter report. They appear to give support to the amendments that we are now discussing. I should like to reiterate what I said yesterday about the family and agree with what the noble Lord, Lord Coleraine, has said today. The important point with which I and the noble Lord are concerned is that marriage is a contract between two people and made before people. It is a contract which they have freely entered into, and presumably it is one that they mean to keep. What concerns me, and I believe many other noble Lords, is that one party can unilaterally abrogate the contract no matter what the circumstances.
There are circumstances in which delay is desirable and will save the marriage. My present marriage has lasted 35 years, and a very good marriage it has been. Undoubtedly, one passes through various periods when one feels that one has had enough of it and it is time to
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go. (I do not speak here of my own marriage). After a little while things may get better and the parties may say thank God they did not take the final step.
There are periods in people's lives when their health is different. There are periods in women's lives which are extremely difficult and need to be sympathetically dealt with. Where only one party to the marriage has expressed a desire for a divorce, sometimes for his or her sake it is better if the other party, who perhaps has had years of experience of living with that person, says that he or she does not want that to happen in such a short period as a year. This amendment is helpful because it will extend the period so that a party who says he or she wants to end the arrangement into which he or she has freely entered is given the opportunity for second thoughts.
Time is very important. I believe that the year's notice is insufficient, certainly where only one party has given notice. We have already heard the argument about whether a year is sufficient if both parties are agreeable, but in the case of one party I believe that one year is insufficient. There is no time for various ideas to be worked out, and it is not fair to the other party anyway. I believe that these amendments should be supported.
Lord Elton: We went over this ground, or ground very much like it, at great length earlier. Therefore I shall be very brief. I regret that my noble friend did not join these amendments with the others in the last group. These amendments are addressed to the particular case where one party to a marriage suddenly decides to rush off. We have had some wonderful illustrations of how this may happen. Suddenly one party is smitten by another attractive party and wishes to leave the marriage in a hurry with the other party left behind grieving over the marriage and not accepting that it was over. My noble friend's amendment would make an opportunity for the unwilling partner to force a slowing down of the period, during which the departing party might be persuaded to have a change of mind.
As I understood my noble and learned friend, he argued against that principally because it was against the interests of the child to protract the process. I did not hear him address the question of whether the interests of the child nevertheless might be greatly served if the extended period resulted in a reconciliation. I believe that his argument was merely that if it had not worked in one year one could not tell that it would work in two. I feel sure that I must have misrepresented him and wonder whether he could just elucidate that point.
The Lord Chancellor: I am not aware of any body of opinion expert in this area which suggests that after a year has passed the probability of anything in the way of a reconciliation would arise. In other words, it is not in any way established that lengthening the period beyond a year is likely to increase the chances of a reconciliation. As I said, it is a matter of judgment. That is why I feel that there may be special circumstances in a particular case to which the court should have regard. But I do not believe that as a general rule it follows that reconciliation is likely to be assisted by going along

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with a period of more than a year. I do not see that the question of whether or not the parties are consenting or in any kind of agreement affects that.
Lord Coleraine: I am grateful to all those who have spoken in this short debate. I did not feel that the answer given by my noble and learned friend to my noble friend Lord Elton was persuasive. I introduced the amendment as a focus for discussion. I do not propose to go over the ground again. I just wish to thank my noble and learned friend for his answer to the question that I raised yesterday and again today; namely, what is the recent authority for the proposition that, in general, conflict affects the children much worse than divorce and separation?
He has now told us that the authority is the Exeter Family Study. I found that surprising but I shall read all the extracts from the study that he quoted to us. Indeed, I shall read certain parts of the study which he did not quote. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
The Deputy Chairman of Committees (Baroness Serota): I must tell the Committee, in calling the next amendment, Amendment No. 44A, that if the amendment is agreed to, I cannot call Amendment No. 45.
[Amendment No. 44A not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 45:
Page 4, line 16, leave out ("is received by the court") and insert—.
("(a) is received by the court, where both parties have made the statement, or
(b) is served (in accordance with rules of court) on the other party, where only one party has made the statement.").
The noble Lord said: This is a very simple amendment. We learned yesterday that the statement which has to be made will be served on the other party. At present, the Bill provides that when the statement is put into the court the period for reflection and consideration then commences. It seems to me, as a matter of common sense as well as practicality, that the period for reflection and consideration should be a full 12 months. That is obviously achieved when the statement is made by both parties; but when it is made by only one party it cannot be achieved unless the period starts when the other party receives the statement from the court or whoever is charged with serving the statement. I beg to move.
Lord Meston: I speak briefly in support of the amendment. It seems to me that the noble Lord, Lord Coleraine, has an important point. If time is to run from when the statement is simply lodged with the court, rather than when it is received by the other party, it may mean that the period of 12 months is abbreviated for the other party if the process of service, for whatever reason, takes longer than would normally be expected. Therefore, I hope that the noble and learned Lord the Lord Chancellor will consider this amendment or one like it.
The Lord Chancellor: This point was raised in somewhat the same form this afternoon by my noble
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friend Lady Elles. I certainly indicated then, and I am happy to do so in answer to my noble friend's amendment, that this is a matter that I should wish to consider. The rules will certainly provide for service and it may well be that in some circumstances at least there should be an adjustment in respect of the nature of the service. I should want to consider those two matters together. I am grateful to my noble friend for raising this issue.
Lord Coleraine: I am grateful to my noble and learned friend for his comments. I understand him to say that whatever is done with respect to the point that I raised will be on the face of the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Lord Irvine of Lairg: Perhaps I may ask the noble Baroness, Lady Trumpington, whether it is wise to embark upon the discussion that we shall have on the next amendment, Amendment No. 47, with the extent of discussion that I anticipate going into the dinner hour. I am well able to move it and I am in the Committee's hands.
Baroness Trumpington: On Tuesdays, the dinner hour starts at half-past seven, if possible. If the noble Lord feels that he can deal with the amendment in just over half an hour, that would be great.
7 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 47:
Page 4,line 16, at end insert ("except where subsection (8) applies").
The noble Lord said: I can deal with this amendment in a few minutes. What I had in mind was the interest which my observations might attract elsewhere in the Committee rather than my own efforts in delaying the proceedings. In moving this amendment I shall speak at the same time to Amendment No.61. Amendment No. 61 is the important amendment, under which it is proposed that,
"The court shall have the power to abridge the period for reflection and consideration … [provided that] the requirements of Clause 2(1) are satisfied and the court is satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage before such period [of one year] has elapsed."
I make the observation that there is great merit in a year for reflection and consideration. As I have said before in Committee, marriage should not lightly be undertaken nor should it lightly be set aside. Before I put the argument as to why there should be a discretion for the period of a year to be abridged it is worth observing, contrary to what has frequently been said in this Committee—namely, that this Bill will make divorce easier—that this Bill will make divorce harder to obtain in the great majority of cases in the sense that it will require a mandatory period of a year for reflection and consideration before a divorce application can be entertained.
On the first day of Committee I described how 75 per cent. of divorces are "quickie" divorces, granted within a few months of the divorce petition. I argued

961
that a mandatory year for reflection and consideration during which mediation takes place is much more seemly than the conveyor-belt process of the current divorce law which the Bill replaces.
I echo the observation of the noble and learned Lord that fault-based divorce or an excessive period for reflection and consideration beyond what is reasonably required for that purpose is productive of stress and trauma; it is damaging to both parents and children and serves no sensible purpose. It is said that if a longer period were stipulated, people would take their obligations more seriously. That is not a proposition which appeals either to reason or common sense. As the noble Lord, Lord Elton, said on a previous occasion, we must address the world as it is and not as it ought to be.
The corollary of arguments of that kind is that the more difficult we make divorce to obtain, the stronger will the institution of marriage become, with the logical conclusion—which only needs to be stated to be rejected—that if we make divorce impossible, then marriage will become stronger than it could be in any other circumstances.
It would be a pity if the vast improvement which the Bill signals—that is to say, a mandatory year for reflection and consideration—were made unusually restrictive by robbing the judges of any discretion to do justice in the rare cases where a divorce should be granted before the expiry of the 12-month period. At the risk of wearying the Committee, I shall repeat the example I gave on Second Reading because it is a. telling one.
A man who was separated from his wife more than 10 years ago was diagnosed in February of last year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with a new partner.
The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and of course the co-operation of the courts. The divorce was finalised in June of that year; he died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit of not only herself, but also of their child. Happily, the child was born last summer.
I observed on Second Reading and repeat, that I shall be more than surprised if the noble and learned Lord thinks other than that the courts should be given flexibility to grant divorces in less than one year in genuinely unusual and special cases. I hope Members of the Committee will find that to be a compelling example. It could be said that the couple should have divorced earlier and in a sense therefore they were the authors of their own misfortune. No doubt that is true; but they did not. I say it would be extraordinarily harsh to say that they have only themselves to blame. I say that no court should be prevented from doing justice in such an exceptional situation.
I hold to the view to which not all those who are presently Ministers of the Crown subscribe; that is, our judges are to be trusted to do justice in exceptional cases where it is necessary in the interests of the parties or the children so to do. The noble Lord, Lord Meston, who knows much more about this in practice than I do, will confirm that the whole ethos of the family judges is overwhelmingly child-centred. Over the past 20 years they have developed a sensible and highly sophisticated approach to the repercussions of failed marriages. They should be trusted with the discretion which the amendment would give them.
My Amendment No. 102 is not grouped with Amendments Nos. 47 and 61; it is to be found tucked away in another over-heavy and unhelpful grouping with Amendments Nos. 97 to 117. I mention it because I accept the corollary of the amendment which I am presently moving. Amendment No. 102 is intended to be the converse of Amendment No. 47. Just as the courts should have discretion in exceptional cases to abridge the year for reflection and consideration in the interests of justice, so also, I accept, they should have the same discretion to extend the period where justice so requires. I do not shrink from the proposition—I do not believe that the noble and learned Lord does; on the contrary—that divorce should be made harder to obtain; that it should take longer than one year where justice so requires.
The noble and learned Lord, in responding to a number of amendments tabled by the noble Baroness, Lady Young, indicated that, whereas in his opinion one year is right in the generality of cases, special cases where a year may be too short should properly be dealt with under the vehicle of Clause 10. I agree with that. We have not yet come to Clause 10. By parity of reason, I believe that the law should be flexible enough to allow for unusual special cases where one year is too long.
Why is a year always right as a minimum? Why may it properly be lengthened under Clause 10 but, if the amendment is to be opposed, never abridged in special and unusual cases? I believe that there should be flexibility both ways and that judges should be trusted to identify those unusual and special cases where one year is either too long or too short. I beg to move.
Lord Simon of Glaisdale: The noble Lord, Lord Irvine, asserted that we do not make marriages stronger by making divorce more difficult. Even if that were the whole truth, it would not follow, as he implies, that by making divorce easier, we do not make marriages weaker. All the evidence is to the contrary, particularly from 1969, and there is the astonishing jump of 44 per cent. in the number of divorces, and therefore in the number of children affected, as soon as the Act came into force. It was not a sudden surge of backlog; on the contrary, the increase continued from that point at the preceding rate on average of 1 per cent. a year. That is 1 per cent. compound interest, so to speak.
There is also the graph that followed. Just as the divorce rate increased so concomitantly did the rate of marriage decrease. Although they do not appear in the same statistics, perhaps the right reverend Prelate will have in mind concomitantly, too, that the rate of church

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attendances also decreased. The other graph that one can consider shows that not only did the divorce rate increase but so did the number of one-parent families and illegitimacy.
At an earlier stage the noble Baroness, Lady Seear, was inclined to doubt my assertion that the 1969 Act had had that effect. She denied, in effect, that it was propter hoc, it might have been post hoc. She quite rightly instanced the influence of the increasing economic emancipation of married women, and that is undoubtedly a factor. However, married women did not suddenly become 44 per cent. more emancipated in 1971.
There is also the comparison with Europe. Our divorce rate is higher than any in Europe and about double their average. In Europe, too, married women became economically emancipated. The noble Baroness was quite right in saying that that is a factor. There are others such as the fact that we have become more divorce-minded as a result of the war. The increased mobility of the population is another cause and no doubt also the increased use of contraception, removing part of the menace attendant on adultery earlier than that.
The noble Lord, Lord Irvine of Lairg, very bravely asserted that he was convinced that the rate of divorce would decline as a result of this measure. He was thereby much braver than my noble and learned friend the Lord Chancellor who was extremely cautious when interrogated by the noble Lord, Lord Stoddart, to that end.
Lord Irvine of Lairg: I hate to intervene, but believe that the noble and learned Lord will accept, when he reads Hansard tomorrow, that I made no assertion about the divorce rate lessening.
Lord Simon of Glaisdale: If the noble Lord says that, naturally I accept it: I did not make a note. I am riot a betting man—or, more truthfully, I am no longer a betting man—but I am willing to have a small wager with the noble Lord, Lord Irvine, that the effect of this measure will be an increase in divorce. I am willing to have that bet with others. Perhaps the noble Baroness, Lady Faithful!, would care to take it up. I do not suppose that my noble and learned friend would be willing.
7.15 p.m.
Baroness Young: I am sure that the noble Lord, Lord Irvine, will not be surprised to hear that I am unhappy about this amendment because, having moved amendments which would have lengthened the time, conversely I am, of course, unhappy about the amendment shortening it. As regards amendments which I moved earlier, I believe that the noble Lord said that he would not want it to be thought that if he was going to lengthen the time the amendments would necessarily shorten it. That is a very important proposition just as it is a very important statement that the noble Lord, Lord Irvine, made about these amendments.
He quoted once again the "quickie" divorce, which occurs all the time. The figures which I have on this matter need consideration. If I am wrong perhaps someone will correct me. At present about three-quarters of all divorces
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are based on fault. Of those, 30 per cent. are completed in under six months, but 26 per cent. only if there are children under the age of 16. Twenty four per cent. of the divorces take over one year and 26 per cent. if there are children under the age of 16. Those statistics come from the OPCS Table No. 21, Table 4.7. Twenty six per cent. of all divorces currently are based on separation, which takes two years.
We need to see in proportion the number of "quickie" divorces. They do not generally occur where there are children. Only 15.9 per cent. of all divorces take place in under six months where there are children under the age of 16 years. Again, these are OPCS statistics.
What worries me much more about the noble Lord's amendment is that it is chipping away at the one-year period. The noble Lord said earlier that in his judgment a year was right. We could debate that for a long time. Now he is saying that there are, of course, a number of cases where a year is too long and that it should be shortened.
Lord Irvine of Lairg: Does the noble Baroness accept that in her amendments she proposes that in the generality of cases a year should be extended in certain circumstances to two years or even to five years. Does she appreciate that my amendment says nothing about the generality of cases. It accepts that a year is right in the generality of cases. I accept that, but she does not. All that this amendment is proposing is that in exceptional cases the court should have power to abridge the year just as the noble and learned Lord has indicated that he believes it right that in exceptional cases one year, which is correct in the generality of cases, should be capable of being extended to meet the needs of special cases.
Baroness Young: Perhaps I may answer that particular point. I believe that the one-year period should be extended as a matter of principle. I have said that a year is too short. I agree that it is a matter of judgment. We shall come back to consider that again and I shall not repeat all the arguments now. For those reasons I believe that to shorten the period would send out an even worse signal to everybody. We are left with all sorts of circumstances to be decided by a judge. This amendment is chipping away at the year. The next time that we have a piece of divorce legislation, it will become easier still and the year will be shortened. We are on a slippery slope.
In principle, I am unhappy about allowing a court to abridge the year. Indeed, I very much support much of what the noble and learned Lord, Lord Simon, said on that. None of us can tell what the outcome of this measure may be, but if the history of other divorce legislation is anything to go by, we know as an absolute fact that every single piece of divorce legislation has been followed by an increase in the number of divorces. Nobody hopes more than I that that will not be the case with this Bill, but I am bound to say that history is not on the side of those who think that there will be fewer divorces as a result of this legislation.
Baroness Hamwee: I do not think—
Lord Monson: Perhaps—
Baroness Trumpington: The noble Baroness has been seeking to intervene for some time.
Baroness Hamwee: I do not think that any of us is standing on our dignity in this Committee. However, I wanted to support the noble Lord, Lord Irvine of Lairg, in Amendment No. 61. In doing so, I confess that it is a better amendment than my amendment, Amendment No. 50. Perhaps I may put my arguments on the next group in this debate, and refer also to Amendments Nos. 48 and 49 which stand in the name of my noble friend Lord Russell.
I support Amendment No. 61 because of the exceptional nature of the circumstances to which it refers. The amendment provides that the court must be,
"satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage".
As I read the amendment, that is a high barrier to overcome. If the amendment were to be agreed, I am sure that the court would exercise that discretion quite sparingly. The Committee will not have needed to be reminded of the moving description given by the noble Lord, Lord Irvine of Lairg, on Second Reading. The circumstances which would meet the criteria in this amendment must be rare and terminal illness is perhaps such a circumstance. However, the provisions could apply also in immigration cases where unmarried partners are proposing to move to another country.. I suspect that that situation might not meet the criteria, even though the couple had to be married in order to fulfill the immigration requirements.
My noble friend Lord Russell referred to domestic violence in his amendment. Again, that is a special situation, but not a rare one. The noble and learned Lord the Lord Chancellor referred to the Exeter study, from which I gleaned that it is right to give the court the discretion to consider the particular circumstances of a case. Although the benefits to a child of the parents remaining together (even where there is domestic violence) might be more than those that would appertain if the parents separated, there may be circumstances in which it would be better if the divorce process were to go forward. In cases involving domestic violence, the partners may have been separated for some time before getting together again. That is a pattern in marriages involving violence. The wife often tries very hard, principally for the sake of the children, to make a go of the marriage and may return home on many occasions before deciding that the marriage cannot be made to work. Where a spouse—usually a wife—has suffered domestic violence, a good deal more reflection and consideration may already have been given to the position before the formal period starts than might be the case in other marriages.
Lord Monson: Having supported the noble Lord, Lord Coleraine, in his amendments, I do not think that I am being at all inconsistent in supporting the noble Lord, Lord Irvine, in his. I refer particularly to Amendment No. 102 which we shall be considering
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later. Surely flexibility in legislation is always better than rigid inflexibility. After all, we are talking about exceptional cases.
Lord Beaumont of Whitley: I support the amendment of the noble Lord, Lord Irvine, but wonder whether the drafting of Amendment No. 61 needs to be reconsidered. I do not have any solution to the problem that I am raising, but I think that it is a very real problem. The amendment states:
"if … the court is satisfied that it is necessary in the interests of the parties or of any relevant children".
I understand why the amendment has been drafted in that way, but under those provisions as drafted would it not be possible for the court to decide that it was necessary to dissolve the marriage in the interests of the parties although that was not necessarily in the interests of the relevant children? I am not saying that that is what will happen, but that is how it appears to me. I am sure that it will be possible to draft the amendment slightly differently to obviate that happening.
The Lord Chancellor: On reading the amendment, I think that it would have the effect which the noble Lord, Lord Beaumont, mentions because it states:
"it is necessary in the interests of the parties or of any relevant children".
I believe that that is what would happen.
The purpose of the year is to provide a period for consideration and reflection which can be used to demonstrate that the marriage has irretrievably broken down. I believe that that is the minimum period required for that purpose. It is possible to instance hard cases and the noble Lord, Lord Meston, gave an illustration of his unhappy time in the divorce courts. That example of where the five-year period had not expired was unfortunate in the circumstances of that case.
My feeling—it is quite a strong one—is that in order to ensure that a marriage has indeed broken down before a divorce can be granted, it is necessary to provide a period for reflection and consideration. That is stipulated as the general period. If no improvement takes place in the relationship, it may be right to extend the period in certain circumstances and the provisions are drafted to allow for that. I do not think it right to make a provision that would shorten the period because I think that it is necessary to send out the clear signal that marriage is an important relationship and that a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure.
The statistics show that in 1993 there were 26,162 divorces in which children under 16 were involved which took under six months; and there were 45,814 which took between six and 12 months. So the overall number involving children in one year amounted to 71,976, whereas there were 22,703 involving children which took more than a year. It is interesting to note that there were 26,690 cases in which no children under 16 were involved which took under six months.
Reference has been made to the quickie divorce. I want to make it clear in relation to that matter that my fundamental point about fault-based divorces under the present law is that, by the very nature of things, there are more fault-based divorces than divorces which are

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not based on fault. That is what I regard as the entirely inappropriate signal being given about the state of the divorce law. The fact that they take less than a year is of course an additional factor. That is the primary way in which I look at the matter.
I do not know that I want to go into details about how divorces have been affected by different legislation. I do not believe that it is possible to use history to show what the effect of this legislation will be. It is wise to consider many matters other than the precise change in the divorce law when one looks at the past. In the meantime, I am of the strong view that a minimum period for consideration and reflection is necessary to show that the marriage has irretrievably broken down. That minimum period is judged, rightly, to be one year. It would not be appropriate therefore to give the court power to abridge it.
7.30 p.m.
Lord Irvine of Lairg: I appreciate of course that it is well possible to take the view that a year for reflection and consideration is always necessary to establish that a marriage has broken down. I had hoped however that the noble and learned Lord might have thought that the rigidity, the absoluteness, of that position might yield to a unique and highly meritorious situation, but it would seem not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I beg to move that the House be now resumed. Perhaps I may suggest that the Committee stage begin again at 8.35 p.m.
Moved, That the House be now resumed, and that the Committee stage begin again at 8.35 p.m.—(Baroness Trumpington.)
Lord Simon of Glaisdale: The Government will, I believe, concede that they owe a duty not only to themselves to get legislation through this place and through Parliament, come what may, but also to pay some regard to those Members of this place who are concerned about a very important measure. It would be greatly for our convenience if the noble Baroness could indicate at what time the Government propose we should rise this evening. Last night it was a quarter to 11. I trust that it will be nothing like that this time.
Baroness Trumpington: The matter is very much in the hands of the Committee. We have now been discussing the Bill for three days from 3 o'clock. On the first day we did five amendments. We are now still on page 4 of the Bill. We must get on with the Bill. I can make no promises about time. Apart from anything else, it is not in my gift to do so. We must get on with the Bill.
Lord Simon of Glaisdale: I think that the noble Baroness will admit that no time has been wasted. We have gone on in a measured way taking amendments. There has been nothing in the nature of a filibuster. That would in any case be contrary to the practice of this place. The practice is to allow the Government to get their business, but, reciprocally, the Government must give us time to discuss their legislation. This is most unsatisfactory.
Lord Graham of Edmonton: The noble and learned Lord is right, the Government are entitled to get their business eventually. Before the stages are mapped out, consultation takes place through the usual channels. The Labour Front Bench accepted the logic that four days should be set aside for the Committee stage of this Bill. It is—
Lord Simon of Glaisdale: I take it that the noble Lord would not assign any magic to four days.
Noble Lords: Order, order!
Lord Graham of Edmonton: I shall continue. This side agree that four days are sensible. If there is a contrary view, no doubt the noble and learned Lord will make his view known to the Government Chief Whip. He has done so. He has more than once raised the issue of what is an appropriate day's work. The Labour Benches are flexible. We certainly subscribe to the noble and learned Lord's view that this place should not sit late, but if by not sitting late the timetable slips, then we are prepared to consider, periodically, how best to catch up with the timetable. All I can say is that I do not detect any sign that we are likely to rise as early as a quarter to 11 tonight. If that is the case, we on these Benches will reluctantly subscribe to the view that if we need to go beyond 10.45 p.m. we are prepared to do so.
Baroness Trumpington: Perhaps I may say how much I appreciate what the noble Lord, Lord Graham, has said. If the noble and learned Lord, who is unhappy about the position, feels that he would like to continue the conversation, may I suggest that he continues it with the usual channels and not in the Chamber, where the dinner hour, or pleasure, Motion has already been moved.
On Question, Motion agreed to.
House resumed.

Potato Marketing Scheme (Commencement of Revocation) Order 1995
7.40 p.m.
Lord Lucas Lord Lucas rose to move, That the draft order laid before the House on 12th December be approved [4th Report from the Joint Committee].
The noble Lord said: My Lords, several noble Lords have told me that they wish to speak to this Motion. They, and I suspect all those other noble Lords who have chosen to remain in the Chamber, know well what this order is about. Many will have read the report of the debate on this order in another place. I will therefore keep my opening speech short so that I may have the maximum time to reply to points raised by other noble Lords without trespassing on the time of those who will wish to continue the Committee stage in an hour or so.
The draft order in effect specifies 1st July 1997 as the date when the potato marketing scheme will be revoked. The Agriculture Act 1993 gave Ministers power (subject to affirmative resolution) to revoke the potato marketing

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scheme. After due consideration Ministers, and indeed your Lordships' own Select Committee, concluded that (even in the absence of an EC potato regime) Britain should not continue to impose unilateral market controls.
In announcing the intention to revoke the scheme, the Government recognised the need for the industry to have time to adapt to the conditions of the free market. The scheme was therefore allowed to continue in modified form for three years, the modifications being based on suggestions made by the Potato Marketing Board and the National Farmers Union. The industry has made very good use of the intervening period. All the modifications were speedily introduced and so much progress has been made towards the free market that the board has already decided that it will not operate quota controls this year.
Section 27(1) of the 1993 Act requires the Potato Marketing Board to apply to the agriculture Ministers for approval of a scheme to transfer its property, rights and liabilities to a successor body or bodies, unless growers in a poll tell it not to. Not only has the industry agreed on the necessity of a levy-funded successor body but also all sectors of the industry have reached consensus on the form which such a body should take. I am not in a position to comment today on the details of what the industry is proposing since they have yet to be published and they must be agreed with growers before being presented for ministerial approval. But the very fact that such a consensus exists is another testimony to the progressive attitude of our industry.
This order is but a milestone on a journey begun some three years ago, with a year and a half yet to travel. The journey has been without incident so far; the rest of the road has been well mapped and holds no terrors for us or, we believe, for the industry. I therefore commend this order to the House and look forward to listening to what other noble Lords have to say. I beg to move.
Moved, That the draft order laid before the House on 12th December be approved [4th Report from the Joint Committee].—(Lord Lucas.)
7.43 p.m.
Lord Stanley of Alderney: My Lords, I must declare an interest in that I have been a potato producer for a little over 41 years. The trouble with this order is that it leaves too many issues unresolved. The unresolved issues are: first, what action will the Government take to secure common rules of competition in the European potato market? Secondly, what measures will the Government take to ensure that the United Kingdom potato producers can compete on level terms with their European competitors after June 1997, bearing in mind that there is no chance whatever of a lightweight regime as the United Kingdom is in a minority of one? Thirdly, will the Government undertake an investigation into the state of competition of the European potato market, including information on all member state aids? I ask my noble friend to give an undertaking on those lines with a promise that the results will be made in a Statement to the House, supported by a written report, before 30th June 1997.
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The most worrying of those issues is the likelihood of United Kingdom producers facing subsidised European potatoes. Your Lordships may remember the disastrous 1992 season when many United Kingdom potato producers went bankrupt due in part to the fact that other European countries supported their producers. For instance, France supported its producers to the tune of 140 million francs and Italy to the tune of £12 million. Other countries, including Portugal and Spain, did likewise.
United Kingdom potato producers are among the most efficient in the European Union and we are more than prepared to hold our own. However, we cannot survive against subsidised produce and producers. The answer to the problem would be a lightweight regime, which was mentioned during the passing of the 1993 Act, making state aids illegal or requiring any help to be given equally between member states. Subsidising one against the other is totally unacceptable, which is what has and what will happen in a surplus year. I hope that my noble friend has sympathy for such a view—I believe that he has—but I am afraid that the Government's record sadly lacks commitment and results. For instance, my right honourable friend Mr. John Gummer said in Standing Committee F on 4th May 1993:
"I am merely saying that, without the very likely European regime, if it became clear that Britain was shooting itself in the foot by continuing the current potato marketing regime, no sensible Government would stand aside and say, 'Let the Dutch take it over. Let the French subsidise their industry into defeating ours'. In those circumstances, we would take measures, which would have to be approved by affirmative resolution, to replace the current potato marketing scheme with those elements that benefit us in the quest for export and import substitution and remove those elements that disadvantage us".
Those are strong words and I wonder whether my noble friend will stand by them. Will he explain why when in 1993 my right honourable friend Mr. John Gummer referred to "the very likely European regime" there is still no sign of one? I must remind your Lordships that we are now in 1996. Moreover, I must also remind your Lordships that in a similar vein my noble friend Lord Howe said during the passage of the Agriculture Bill:
"we are 95 per cent. of the way towards achieving an EC regime and approval of these proposals is virtually a formality".— [Official Report, 25/1/93; col. 1098.]
We all make mistakes—I am told that very occasionally I do—hut it is now 1996 and we are approaching 1997. We are three years on from those assurances and in my opinion there is no possibility whatever of a lightweight scheme. That was pointed out by the noble Lord, Lord Carter, the noble and learned Lord, Lord Simon, and the noble Earl, Lord Perth.
All that I can ask is that the Government honour the assurances of my right honourable friend Mr. John Gummer to protect the United Kingdom potato producers if needs be by taking a similarly courageous line as my noble friend Lord Lucas took last week over Emtryll by either disregarding European Union rules and blocking imports or by giving equal support to our producers.
7.48 p.m.
The Earl of Perth: My Lords, I too must declare an interest either as a grower of small potatoes or a small grower of potatoes, whichever one wishes. I grow some seed potatoes. I do not wish to comment on the order, which was debated for one-and-a-half hours in the Commons. That was a good debate. Furthermore, we have heard from the noble Lord, Lord Stanley of Alderney, tonight. I am behind him on the great importance of our competing on a level basis with the rest of Europe. It is essential that in one way or another that should be the case. I know that the Government are trying but I should like to see them try a little harder. The suggestion was the lightweight regime: that is a good thought.
My purpose in rising to speak tonight concerns a much more mundane issue, which is the issue of brown rot. It will be known to those of your Lordships who are interested in potatoes. I can give you the Latin name but it is very difficult to pronounce and I do not think it would add to our debate. I am sure all your Lordships will know that this is an infectious and very serious disease. It has spread widely—I do not want to exaggerate—in Holland, from which we get a considerable amount of seed. The disease has also found its way to France, Italy and Egypt. I believe there has even been one case in England—and I stress the word "England".
The Dutch themselves are very conscious of this disease and they have initiated a scheme of control—that is, a scheme of inspection. But what does the. inspection allow? It means that 220 tubers are inspected out of something like 140,000. I am not very good at arithmetic, but I want to make the point that the inspection is minimal because it is such a small proportion of the whole.
We get a similar inspection—I do not mean similar as regards an exact 220 tubers out of up to 25 tonnes, but that the English authorities are also inspecting. I think I am right in saying that the disease has already come to England, but of course I speak for Scotland. Above all, our whole success lies in our success as growers of seed potatoes. If our seed potatoes become infected, the outlook for Scotland is really a disaster. Therefore my purpose in speaking tonight is to raise this issue. We feel so strongly about it in Scotland that there has already been a voluntary scheme among producers to ensure that what is imported to Scotland is good stuff. However, the system is voluntary and the real issue I want to address tonight is whether the Government could revert to a practice which was common only two years ago. I am sure it is allowed under the rules of the European Union: namely, that they again announce that we have protected region status.
If that is accepted and could be arranged by the Government, it would give us great comfort because we have already worked out a sort of voluntary scheme. This would ensure that the Ministry of Agriculture would themselves inspect and reinforce the whole process. I ask for this because it would ensure that quarantine could be properly applied, not only in Holland and not only generally on borders, but that we
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can have certainty, in so far as one can have certainty, that every step will have been taken to stop what would be a disaster for Scotland; that is brown rot coming to that country. I have given the noble Lord, Lord Lucas, notice of this question and I very much hope that he will be able to announce that something along these lines would be possible.
7.55 p.m.
Baroness Carnegy of Lour: My Lords, I apologise for not having put down my name to speak. If I may, I should like to say a brief word not so much about brown rot—problem though that is—but about the order that we are discussing.
I was one of those who took an active part in the passage of the 1993 Act through this House. I am also a member of your Lordships' European Committee which has said that it considers the time has come for the Potato Marketing Scheme to come to an end. I live in Angus not very far from the noble Earl, Lord Perth, in seed potato growing country. Until 1989 I used to be a grower myself. I no longer have any financial interest to declare, but of course I am very interested in the subject, and I am very glad to see my noble friend Lord Lindsay beside my other noble friend on the Front Bench this evening.
I remember well the anxieties that were expressed, particularly by farmers and not least by seed potato growers in Scotland, about the dire effects the ending of the statutory potato marketing scheme would have on their businesses; how they needed the quota system and the intervention mechanism. They talked about the enormous problems which would occur if those regimes were brought to an end. In the event, the Bill became an Act and the industry has responded quietly, effectively and with considerable entrepreneurial skill, as I think the noble Lord, Lord Stanley, indicated.
The dire results that were foretold have not in fact come about. With the backing of the whole industry, including the growers, the Potato Marketing Board has slimmed down its membership and its staff. It has ended the intervention mechanism but set aside the quota system. In the meantime the growers have, as the noble Lord, Lord Stanley, said, had some downs and they have also had some ups, which I do not think he mentioned. They have had several good years and in fact in our part of the world we have had the best two years since 1980. As a result, there has been a good deal of investment in equipment, together with much replenishment.
The United Kingdom processors have responded to the increased investment and they have increased the proportion of the United Kingdom potatoes that they use and have decreased the amount they import. I believe that the time is right now, for the whole industry's sake, that the clock should be started ticking to begin the final year of transition to a free market. Seed potato growers in Scotland have the same anxieties as those expressed so ably by the noble Lord, Lord Stanley of Alderley. There is still no regime in Europe which will ensure that our farmers will be able to use the rather surprising phrase that they can "grow their potatoes on level playing fields". They wonder what will happen if no

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regime emerges and so I wonder whether the Minister could tell us what chances he thinks there are of a regime emerging. If no such regime comes, what is the likelihood of farmers in other member states being subsidised while ours are not? Is there anything to prevent it, apart from the lightweight regime which we have hoped so much it would be possible to bring about? Should that subsidy happen in other countries, what will the Government do about it? Can they help us or should we simply hope that we can compete because of our efficiency? Maybe we can but, to use a Scots phrase, "I hae my doots".
An answer to such questions would give confidence to farmers. Nevertheless, there is much progress so far towards the plans for the owner/owned body which will enable everyone to work together. They are setting themselves up for the free market. I agree that the time has come to move towards the free market, and therefore I support the adoption of the order.
8 p.m.
Baroness Robson of Kiddington: My Lords, I have listened with interest to the speeches that have been made so far. They are not, in fact, far removed from what I had intended to say. Since 1993, when the procedure was originally initiated in the Agriculture Act, it is true, as the noble Baroness said, that the Potato Marketing Board has set about sorting out its own affairs very successfully. It has been able to halve the levy which it imposes on growers. Moreover, as the. noble Baroness also said, that has resulted in over £50 million being invested in additional processing capacity and the increased use of British potatoes. But, above all, it has reduced by 24 per cent. the imports of processed products, which was one of the great problems that faced us in this country.
So far so good. However, with the laying of the draft order, both the NFU and the Potato Marketing Board expect the Government to do all that they can to ensure that the industry can function in a truly free market in Europe. We would like an assurance—and it has to be an assurance—that the Government will put all their efforts into the work of preventing other EU Members from giving state aids to their producers which, at the moment, is prevalent. As everyone has said, the best way to achieve that is by the creation of a lightweight EU potato regime.
The House of Lords' Select Committee welcomed the proposal made by the European Commission to set up a regime for potatoes. That would be the only way to prevent member states from distorting the market by giving aid to their own producers. Can the Minister assure us that that is the Government's aim and that they will put all their efforts into getting agreement in Europe on a lightweight potato scheme?
Further, we would like an assurance that the Government will facilitate the setting up of a successor body to the potato marketing scheme in the form of a development council for the industry. It is essential that such a council be made accountable not only to the Minister but, above all, to members of the industry itself
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who, after all, are the ones who paid for the setting up of the body. It would be quite wrong for such a body not to be accountable to the whole of the industry once it has been established.
Between the period of this order being passed and coming into force, we believe that, in order to satisfy the concerns of the industry, the Minister should undertake to make a statement to the House dealing with such concerns well before the 1997 deadline. That would enable second thoughts to be had if the requests from the industry have not been fulfilled. We could then consider how we should proceed from then on. If any European producers are still able at that time to receive national support, British producers would expect nothing less.
8.4 p.m.
Lord Carter: My Lords, the House will be most grateful to the Minister for the very lucid explanation that he gave to the background of the order. I am sure that the noble Lord will have more to tell us in his reply to the debate. The order takes us back to the very interesting debates that we had while the Agriculture Act 1993 was going through the House and the other place. In fact, we know that the Bill actually started its passage in this Chamber.
The House will recall that the relevant amendments moved by myself and the noble Lord, Lord Stanley, were accepted by the House, against the wishes of the Government. However, after some tidying up of the drafting had been done, they were later accepted by the Government in another place. That is why we are having this evening's debate.
While re-reading the reports of the debates which took place both in this House and in the other place, I was struck by the foresight which was shown by Members of all parties in both Houses. However, I hasten to add that that foresight was not shared by the Government. Somehow we thought that the Government would wish to use their powers under the Act to revoke the potato marketing scheme without waiting for a European regime. That is exactly what is happening.
Your Lordships may remember that the Government's original intention was to slip in a revocation order under the negative instrument procedure. Prolonged protests—and I emphasise the words "prolonged"—by the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Stanley, myself and others did produce a change of heart by the Government. At least as a result we have, through the affirmative resolution procedure, the chance to debate the order this evening.
I have no particular wish to burden the House with quotations from the previous debates on the matter. However, it is relevant briefly to quote from the remarks made by the Minister at the time, the noble Earl, Lord Howe. In Committee, he said:
"Our aim will be to ensure four things: first, a level playing field across Europe for potato production; secondly, that the UK industry can meet all the needs of the market; thirdly, that the UK industry can contribute to the export drive; and, fourthly, that decisions are

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based clearly on the best scientific and technical knowledge available. I am, of course, unable to foresee the outcome of these discussions".—[Official Report, 10/12/92; col. 340.]
Again, in Committee on the same day, the Minister said that,
"should Ministers decide to revoke the potato marketing scheme, other than in the light of an EC regime, they would of course consider the marketing conditions in Great Britain before certifying that the scheme should be brought to an end and would wish to ensure that the decision to bring it to an end was in the best interests of the industry as a whole. I hardly think that my noble friend"—
who I believe was the noble Lord, Lord Renton—
"needs such a reassurance, but for the record I am happy to give it".—[Official Report, 10/12/92; col. 347.]
Finally, when we debated the Select Committee's Report on the potato marketing scheme in 1993, the noble Earl, Lord Howe, said:
"The Government have said repeatedly that they are committed to seeing a level playing field for potato producers within Europe. That means achieving fair competition for our own producers. We are backing our own producers. We shall not see them disadvantaged in whatever regime is agreed to. We shall fight for our own producers in Brussels".—[Official Report, 17/5/93; col. 1616.]
In repeating those quotations I should emphasise that I do not in any way impugn the motives or the beliefs of the noble Earl, Lord Howe, at the time. I believe that he was genuinely repeating the view of the Government, although we did not agree with them. In effect, what the Government said then can be summarised as, "You must trust us", with the argument both stated and implied that, of course, the Government would not leave the British potato grower unprotected with no European regime and. no British marketing scheme. But that is exactly what is going to happen.
As many of us foresaw, we are revoking the scheme without the prospect of even a lightweight European regime. We are, therefore, entitled to ask the Government—and I do not apologise for repeating them—for a number of assurances. However, before I set them out, perhaps I may make a most important point. The Minister is no doubt briefed to say that, if other member states aid their producers, we will take action through the Commission to bring that to an end. If the Minister is not briefed to say so, then he jolly well should be.
Perhaps I may give your Lordships two quick examples in that connection. Perhaps the House will remember the illegal aid that the French Government gave to their pig producers. Eventually, but very slowly, that was stopped by the Commission and the French Government were fined. Another example would be the notorious Italian failure to introduce milk quotas. By the time the Commission takes action in such circumstances—even if the offending government are fined—the damage to the market through unfair competition has been done and the producers in the other member states have already suffered damage to their businesses.
We believe that the assurances that the Government are obliged to give are as follows. First—and to coin a phrase—I start with the level playing field. Just exactly how, both in terms and in detail, do the Government intend to ensure that there is free and fair competition
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between the European potato producers in the single market? If there truly is free and fair competition, then our growers have nothing to fear.
Will the Government, as has been suggested, undertake to report to Parliament on the overall situation before the scheme ends on the 30th June of next year? Such a report should set out exactly what is happening in other member states and the implications for the United Kingdom producers of any European regime that may be in place at that time, although that looks unlikely. If we are not able to secure that report from the Government then, through the usual channels, we shall attempt to secure a debate in this House so that the Government can be called to account.
The third, and more technical, point is that the most likely successor body to follow the PMB is the Potato Development Council, which will be set up under the Industrial Organisation and Development Act 1947. The noble Lord, Lord Stanley of Alderley, secured the amendment to the Agriculture Act 1993 in the House, supported by these Benches, which set out the powers and responsibilities of the successor body in Section 28 of the 1993 Act.
Let me state the powers and responsibilities. First, schemes for the orderly marketing of potatoes, including marketing intelligence and the identification of marketing opportunities, research and development, the generic promotion of potatoes, the collection of statistics on the potato industry and, finally, a forum for discussion of matters of common interest to producers, purchasers, retailers and consumers of potatoes.
Are the Government completely satisfied that all these proposed functions can be undertaken by the development council under the rules of the 1947 Act? Will the Government give their full weight and support to the proposal for such a development council? I understand that the Minister is unable to comment in any way on proposals which have not yet been published, but, in principle, do the Government support the idea of a potato development council as a possible successor body to the PMB? It is not unfair to ask the Government to give that assurance because they said that that was their view at the time that we passed the 1993 Act.
The order is exactly what most of us expected when we debated the 1993 Act. I am not accusing the Government of bad faith. They never said that they would not revoke the potato marketing scheme in the absence of a European regime; on the other hand, they never said they would. However, we do rely heavily now on the Government using their best endeavours to ensure that UK potato producers are not left entirely at the mercy of subsidised, unfair competition from imported potatoes, and that any successor body to the PMB serves producer interest, consumer interest and processor interest as well as the PMB served them in its existence.
Lord Stanley of Alderley: Before the noble Lord sits down and my noble friend replies, although I may have misunderstood him, the noble Lord said that the Government would be entitled to take other countries to court if there were subsidised produce coming in from

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other countries. Perhaps my noble friend will answer this, but I do not think we can do this unless there is a regime. Perhaps my noble friend will address that point in his reply.
Lord Carter: The noble Lord is correct in saying that if the Government detect that there has been unfair competition they can ask the Commission to deal with it. I think that is correct, but I am sure that the Minister has the answer.
Lady Carnegy of Lour: Before the noble Lord, Lord Stanley, sits down, may I ask him this question: when he asked the Government whether they would support the development council which the industry plans to set up, did he mean financially? Did he mean that they would put taxpayers' money in or simply that they would give other forms of support?
Lord Carter: I suppose that we, on this side of the House, have to get used to answering questions from the Back Benches on the other side. No, I meant just the principle of a potato development council. On the point of being accountable to levy payers and not to the Government, under the terms of the development council, the council, under the rules of the 1947 Act, would be accountable to those who paid the levy.
8.15 p.m.
Lord Lucas:My Lords, the noble Earl, Lord Perth, rather strayed from the subject at hand to that of brown rot, but since he had given good notice of his intent would, with the leave of the House, take the opportunity to discuss that disease at length at the end of my reply. I should now like to say how sad I am that the noble Lord, Lord Carter, seems to have fallen victim to it. Gordon Brown rot is a very saddening condition; it reduces what should have been a crisp and weighty speech to something which was astringent but without much substance. I am sure the whole House wishes the noble Lord a speedy recovery.
As my noble friend Lady Carnegy of Lour said, the dire prognostications of ruin if the potato marketing scheme ended have proved to be wrong. Looking back at the potato marketing scheme, it is clear that it was a burden on enterprising growers who wanted to expand; it reduced the potential for investment and employment growth in the growing and processing industries, and it cost the consumer dear in the form of higher prices. We will all be well rid of it.
Many noble Lords raised the question of the linkage of the revocation of our potato marketing scheme with agreement on the CAP regime for potatoes. The Government are well aware of the widespread concern within the industry that subsidies by other EC states will harm our potato growers. We certainly agree that such national aids are highly undesirable, which is why we have argued forcefully—and will continue to argue forcefully—that a lightweight EU regime for potatoes should be introduced as soon as possible in order to bring potatoes within the competition rules of the Treaty of Rome. The UK has consistently supported the Commission's proposals for just such a regime, but we
978
have yet to secure the agreement of other member states and an early introduction of a CAP potato regime seems unlikely. The noble Lord, Lord Stanley of Alderley, pointed out that this is not quite what my noble friend Lord Howe said three years ago. During a report stage of the Agriculture Bill on the 25th January 1993, he said:
"My advice is that following the December Agricultural Council meeting we are 95 per cent. of the way towards achieving an EC regime and approval of these proposals is virtually a formality".— [Official Report, 25/1/93; col. 1098.]
There was a moment last Saturday when I thought we were 95 per cent. of the way to getting a draw. I suspect that my noble friend and I both under-estimated the French; we were certainly both wrong. But the lack of a regime is no reason for delaying our own progress towards a free market.
I would make four points. First, we see much disadvantage in delaying a most worthwhile change in the UK system. The industry has been in limbo for a number of years and further delay and uncertainty can do nothing but harm. Indeed, the Potato Marketing Board itself has been pressing forward with commendable speed towards the free market, and it would be a tragedy if we were to jeopardise that process.
Secondly, the various national aids have existed for some time and have not prevented our growers from increasing their exports to continental Europe.
Thirdly, these aids have no direct effect on our growers. Indeed, both intervention and the sort of storage aids which form the bulk of these measures tend to maintain higher prices in the local market than would otherwise be the case, if anything making exports by our growers easier. One of the main reasons for bringing our scheme to an end was that by the use of intervention it did indeed keep prices high, thus sucking in imports, notably from Holland.
The noble Baroness, Lady Robson, and the noble Lords, Lord Carter and Lord Stanley of Alderley, asked whether the Government would produce a report before July 1997 as to the conditions that were then existing. I am unable to promise or offer hope of such a report, but I will draw the request to the attention of my honourable friends responsible.
Various noble Lords asked about the question of a level playing field for our producers. We are not in a playing field, we are in a potato field, and we must expect a few lumps and bumps.
Something which has not been mentioned is the enormous advantage which our potato producers have because they are farming in a Britain run by the Conservative Party. That gives them enormous benefits in terms of employment costs and in other aspects.
Lord Carter: It is a sign of the desperation of the Tory Party that it is going after the chip fryers' vote.
Lord Lucas: Desperation is not a characteristic of the Conservative Party.
Baroness Robson of Kiddington: My Lords, we are looking for some constructive answers from the noble Lord, not so-called amusing jokes.
Lord Lucas: My Lords, it is a constructive answer. Other nations may have to subsidise because costs

979
imposed by governments on their producers are much higher than our costs. That is what my right honourable friend the Prime Minister means when he describes the "stakeholder economy" as back-door taxation.
Lord Stanley of Alderley: My Lords, can my noble friend say what extra costs they have?
Lord Lucas: My Lords, like every other employer in EC countries, they have all the costs imposed by their employment legislation.
Lastly, the removal of quota restrictions will make our enterprising growers more competitive and so better able to overcome the effects of aid elsewhere.
Some play was made of the words of my right honourable friend Mr. Gummer in another place when the Agriculture Act was going through that House. The quotations have been somewhat selective. If I may be allowed my own quotation from what he said I would cite the last remark that he made on the subject which, while also selective, represents the summing up of his views and the situation. He said:
"If there is a single market, it is barmy to run a protectionist regime when one has no protection. For that reason, I believe that those who promote the continuation of a scheme which was set up when Britain was a national market when Britain is now part of a single market that stretches as far as Sicily are wrong,"—[Official Report, Commons, Standing Committee F, 4/6/93; col. 227.]
The noble Baroness, Lady Robson, raised the question of appointments to the successor body. Perhaps I may say at this stage that we support the proposals. We believe that the Potato Marketing Board and the. growers are heading in the right direction, although I do not wish to comment at this stage on the detail.
The successor body would be set up under the Industrial Organisation and Development Act 1947. That stipulates the categories of members who must be appointed to a development council. The order setting up a development council will specify the number of persons from each category to be appointed. As I understand it, the industry has already agreed on the proposed membership, which will give the growers, as the major levy payers, a majority. I therefore see no problems arising over representation.
The Act also stipulates that membership must be by ministerial appointment. There is therefore no scope for direct elections to the council. However, successive Ministers have given undertakings that recommendations by industry bodies as to membership will be taken very much into account in making appointments. Since future appointments will, following the Nolan Report, have to be approved by the Commissioner for Appointments, there is clearly no way in which it can be guaranteed that any particular nominee will be appointed.
The noble Lord, Lord Carter, raised with me the question of whether we had powers under the 1947 Act to permit the new development council, or whatever it may be, to do all that it is wished it should do. I believe that we do, but I do not wish to detain the House with the details and I shall write to the noble Lord on that subject.
980
Perhaps I may now turn to brown rot. Brown rot is caused by a bacterium—Pseudomonas solanacearum— which is widely distributed in tropical and warm temperate regions of the globe. It and its close cousins are responsible for a wide range of plant diseases which often pose a serious threat to crops, and may in severe cases limit an infected region's ability to grow potatoes and other vulnerable crops. Fortunately for us, northern Europe is generally too cold to allow the bacterium to flourish. However, it can nevertheless take hold (as happened in Holland last year) if growers and governments are not on their guard.
Without banning potato imports entirely, we cannot provide a complete assurance that the bacterium will not get into the UK. What we can give is an absolute assurance that the Government will continue to operate the best possible proportionate safeguards to protect our industry. The Government have established a screening programme, at no cost to the industry, to test all stocks of seed potatoes imported from the Netherlands. The Dutch, too, are testing all seed potatoes before export, so we have a belt and braces policy. No sampling procedure can offer a 100 per cent. detection rate. However, our combined testing protocols provide a strong safeguard which I know our growers value very highly. The Government acted quickly, in the light of the outbreaks in Holland, to require all imports of Dutch potatoes to be notified in advance so that our monitoring arrangements could be applied effectively.
What we are doing, therefore, is to act against the risk of a serious outbreak by rigorous checking of imports, by controls on potato processing waste, and by keeping a close eye on domestically produced potatoes.
As noble Lords will know, we have already seen one case of the disease, in a potato crop in 1992, and we have detected the bacterium in riverside plants of woody nightshade, which it can also infect. Our experience of the one UK outbreak so far, and of similar scattered outbreaks overseas, leads us to believe that if future outbreaks occur—for which we should and must prepare—we shall be able to deal with them effectively by quarantine arrangements for infected farms. Further discussions will be taking place in the European Community to establish common rules to apply in such cases.
The noble Earl, Lord Perth, raised in particular the case of the Scottish seed potato industry. Scotland and some other areas in the United Kingdom are already protected regions. That is an EU term which means that only high grade seed may be imported. It is not a guarantee against the importation of infected potatoes, and it offers no powers of quarantine or import prohibition. However, I can, I hope, give the noble Earl considerable comfort.
The present position in Scotland is that last year only five consignments of seed potatoes were imported from Holland. This year we have been active in discouraging imports, and no such imports have yet been made. We shall work closely with the Scottish industry, which is well aware of the dangers of brown rot, to ensure as best we can that no problem arises in future and that Scotland's reputation is preserved untarnished.

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There are a whole range of crop diseases and pests that have the potential to invade the UK. We have the duty to take proportionate measures to protect ourselves against them. What those measures should be will vary from case to case and from time to time. We should not go over the top and ban imports when that is not justified. We should do to others as we expect them to do to us.
It is our judgment that the action we are taking, together with that taken by the Dutch, the EU and others, will lead to the current Dutch outbreak being kept under control. However, we shall remain constantly on the lookout for any evidence of the disease spreading and, if we find it, we shall not hesitate to introduce whatever measures are appropriate to protect our growers.
With those remarks, I commend order to the House.
The Earl of Perth: My Lords, before the noble Lord sits down, perhaps I may ask a question. Did I understand him to say that protected region status is already in operation in Scotland?
Lord Lucas: My Lords, Scotland is already a protected region. However, that does not give the protection that the noble Earl hoped for.
Lord Carter: My Lords, before the noble Lord sits down can he make an important point clear? If we take the likely scenario that by the end of next year there will not be a potato regime, did I understand him to say that if it was clearly shown that there was unfair competition. we could ask the Commission to act under the single market rules?
Lord Lucas: My Lords, I do not wish to commit the Government on such an important matter on the spur of the moment. However, it is my understanding that we cannot act. That is why we need the lightweight regime and why we are fighting for it. At the moment potatoes are neither part of the single market nor part of the common agricultural policy. Therefore, we have no basis for compelling other states to give up their subsidies.
Lord Stanley of Alderley: My Lords, I am sorry to return to the subject. However, if that is the case and, as my noble friend says, there is no chance whatever of having a lightweight regime he is in fact saying that other countries can subsidise their crops as much as they like and we can do nothing. I think that he said something about doing to others as they do themselves. Perhaps that should apply in this case.
Lord Lucas: My Lords, I hope that I said that the form of subsidies that they use have not in the past been a form which is damaging to us, because they tend to raise prices in those other countries and therefore make it, if anything, easier for us to export to them. If the situation became wildly different the Government's opinion might be different. However, that would be speculating on a matter which has no basis in the past, or, I hope, in the future.
On Question, Motion agreed to.
Lord Lucas: I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.30 to 8.35 p.m.]

Family Law Bill [H.L.]
House again in Committee on Clause 7.
[Amendments Nos.48 to 58 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 59:
Page 4, line 31, leave out ("made") and insert ("received by the court").
The noble and learned Lord said: This amendment makes a drafting improvement. The word "made" should be amplified to say "received by the court". I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 60 and 61 not moved.]
Lord Meston Lord Meston moved Amendment No. 62:
After Clause 7, insert the following new clause—
ORDERS EXTENDING THE PERIOD OF REFLECTION
(".—( ) If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the period of reflection is to be extended for a specified time, or until a specified event has occurred.
(2) Such an order (an "order extending the period of reflection") may be made only if the court is satisfied that it would be equitable and just, in all the circumstances, for the period of reflection to be extended.").
The noble Lord said: Amendment No. 62 suggests that the court should be empowered in appropriate cases to extend the usual one year period for reflection. This power could be an added inducement to the parties to resolve matters which otherwise might be possible grounds for an application for an order under Clause 10 to prevent the divorce, in particular if the powers in Clause 10 are to be enlarged as some Members of the Committee propose. The delay which Amendment No. 62 allows could be for either a specific period or until the occurrence of a specific event; for example, the conclusion of a religious divorce. However, again I do not wish to anticipate the arguments which will follow in connection with Clause 10. I suggest that the power proposed in the amendment gives the court more flexibility and control than the Bill at present allows. I beg to move.
The Lord Chancellor: I indicated earlier the possibility of an extension in some cases but I should think it wise to make the instances very specific. Therefore, I believe that it would be best to take that into account in connection with the hardship bar. It appears to me to distort somewhat the period of reflection to extend it in that way on the application for the divorce order.
I regard it as important to keep the whole structure as simple and as clear as possible. Therefore, with the extension powers that exist in relation to Section 41, and the possibility of the hardship bar being used for

983
extension, it is a sufficiently complicated structure for us not to complicate it further. I hope that the noble Lord will feel able to agree with that view.
Lord Meston: I am not entirely convinced that the proposal would unduly complicate the provisions in the Bill. It was intended in certain cases to avoid the necessity of invoking the hardship bar. However, I wish Ito consider the matter further and at this stage beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor: Perhaps at this stage we should take the question that Clause 7 stand part of the Bill.
Clause 7, as amended, agreed to.
8.45 p.m.
Clause 8 [Attendance at information sessions]:
[Amendment No. 63 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 64:
Page 4, line 34, leave out ("(except in prescribed circumstances)").
The noble and learned Lord said: This amendment is grouped with a number of others of which Amendments Nos. 66 and 68 are in my name. They can be discussed. conveniently with Amendment No. 64. The rest are in the names of other noble Lords, except for Amendment No. 72 which could more conveniently be taken separately.
The amendments are purely probing. Amendments Nos. 64 and 66 omit the words: "except in prescribed circumstances". In Amendment No. 68 the words omitted are "of a prescribed description". The Committee will wish to know why my noble and learned friend needs the powers and what kind of circumstances or description he proposes to prescribe. I imagine that the provision is not inserted just in case it might come in useful if needed at some time. I believe that Members of the Committee are willing to grant the powers but Parliament is entitled to know why they are required and what is envisaged. I beg to move.
The Lord Chancellor: The principles that I sought to follow in relation to the information sessions are ones which we discussed in relation to an earlier amendment. I have in mind that there should be meetings to which people would go who contemplated starting proceedings. It is fairly clear that some people would be unable to do so; for example, if a person were housebound, disabled or if going to a particular place might put them at risk of violence. There are other possibilities in which alternative arrangements for the giving of information might be suitable rather than requiring someone to attend a session. For example, it might apply if someone were in custody. There may be other circumstances. I cannot envisage everything
984
possible but situations might exist in which it would not be right to require a person to attend such a session. That is the reason for the power.
Lord Simon of Glaisdale: My noble and learned friend has not dealt with Amendment No. 68 and the words "of a prescribed description".
The Lord Chancellor: The precise nature of the situations requires to be considered in the light of the various possibilities that might arise. The description on page 4 at line 41 applies to the type of document that might be raised. The Bill states:
"Where one party has made a statement, the other party must (except in prescribed circumstances) attend an information session before … making any application to the court … with respect to a child of the family; or … of a prescribed description relating to property or financial matters".
It might not be everyone who would require an information session. For example, it might be a matter of answering a request from the court which required a statement to be lodged in answer. In that situation it might not be necessary for an information session to be attended. That is the purpose of allowing for a prescribed description of a document to be the foundation for such a requirement.
Baroness Hamwee: Together with the right reverend Prelate, I have my name to this group, to Amendments Nos. 69 and 73 and also to Amendment No. 78.
I need not detain the Committee long with Amendment No. 69, the essence of which we debated yesterday. I tabled the amendment, as I made clear in my speech yesterday, not because the information session should be by way of a meeting but in order to ask the noble and learned Lord whether he had in mind that sessions might be in private. That is the second limb of Amendment No. 69. An information session may he a group session or a private session where the parties did not consent to a group session.
Secondly, I mentioned "an accredited provider" in Amendment No. 69 and Amendment No. 78 deals with that. I seek to suggest that there should be regulations providing,
"for the identification, qualification and responsibilities"
of the information providers who will undertake the work. Perhaps such accreditation could be considered in more detail after the pilots which the noble and learned Lord proposes.
Thirdly, Amendment No. 73 proposes that in subsection (5) of the clause, rather than the regulations "may" make provision, that the regulations "shall" make provision. I do not know what the right reverend Prelate had in mind, but I wished to ask why it was necessary to provide for matters which could be included in the regulations on the face of the Bill, and why those particular ones had been chosen. If there are to be regulations that deal with information sessions in general, it appears that there is quite a long list of items that will need to go into those regulations, and can go

985
into those regulations without subsection (5) being there at all. Perhaps the noble and learned Lord can assist as to why those aspects are singled out.
The Lord Bishop of Oxford: A number of amendments are down in my name in this grouping: Amendments Nos. 71, 71A, 79 and 80. I hope that it will facilitate the business of the Committee if I associate with them some amendments down in my name in what I presume is a following grouping; namely, Amendments Nos. 71B, 154, 163, 163A and 163B. All nine amendments have to do with making marriage counselling available and supporting those agencies and organisations which in one way or another support marriage.
Clause 8 concerns attendance at information sessions. Amendment No. 71 seeks to ensure that those who attend are offered counselling sessions with an approved marriage counsellor. Whether the couple accept this is entirely voluntary, but if this Bill is to strengthen marriage, as all of us here hope, and to facilitate divorce where that seems to be inevitable, the availability of professional marriage counselling needs to be made known from the outset. Amendment No. 71A is similar. It is designed simply to ensure that the counselling that is offered is free. This relates to the new clause proposed by the noble and learned Lord in Amendment No. 162, which I along with other noble Lords very much welcome, and my amendment to that, Amendment No. 163. Amendment No. 71A seeks to ensure that the. couple are not only told that counselling is available but that it will be available without cost to them.
Amendment No. 71B is concerned simply with the definition of an approved marriage counsellor. We do not want just anybody coming in who believes that he or she is qualified to advise and counsel in this very sensitive and difficult area. Amendment No. 79 spells out the kind of information that needs to be given to a couple who are contemplating a divorce, both the benefits of marriage counselling and the effects of divorce on the parties and the children.
Amendment No. 80 seeks to ensure that when regulations are drawn up under this clause the Lord Chancellor will consult the qualifying organisations. (I apologise for the fact that this aspect involves a huge range of amendments, but I assure you that all of them concern marriage counselling in one way or another). Amendment No. 154 is related to the amendment of the noble and learned Lord, the Lord Chancellor, Amendment No. 162. That enables him to make grants to organisations which support marriage in various ways. In the light of his amendment, my amendment may not be as relevant as it was when it was put down.
Amendment No. 163 seeks to make the point, which has already been referred to, that the marriage counselling that is offered at the information session is free. Amendments Nos. 163A and 163B are concerned with definitions; the former with the definition of marriage support services, and the latter with marriage counselling.
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The nub of these amendments is the belief that this Bill, properly amended, can support marriage. We are not pessimistic about the Bill and do not believe that it will necessarily lead to an increase in the number of divorces. However, if the Bill is to buttress marriage, it must be made quite clear that marriage counselling is available at any time during the year of reflection and consideration, and that if people wish to avail themselves of it such counselling will be free. We also wish to ensure that those who offer counselling are well trained and supervised. The corollary to that is that the marriage support agencies from whom such people will be drawn are in a financial position to train and supervise, as well as do the other valuable work of research into marriage and marriage education.
I hope that I am not over optimistic when I say that, among all the very divisive amendments on this Bill, the House will be able to unite around supporting these amendments. We believe that if these amendments are accepted it will be possible through the Bill to buttress marriage in a significant way.
Lord Irvine of Lairg: I desire to offer general support to the spirit of these amendments. In a sense, this Bill is a kind of prolegomenon for a new philosophy, but the amendments go to the question whether the detail has been thoroughly worked out. In principle, the Bill reposes a great deal of confidence in mediation as a substitute for litigation, and marriage counselling as a sensible substitute for conflict leading to break down.
I understand the spirit of these amendments to give detail to what may be thought of as mere warm words—that is, mediation and marriage counselling. I can ask the same questions as are implicit in these amendments of mediation as of marriage counselling. Who are the mediators? Who accredits them? What professional standards do they apply? When public money is involved, we need to know the answers to these questions. I suggest that precisely the same important questions may be asked of the marriage counsellors as are asked of the mediators. The cost of it all is critical. Therefore, I lend general support to the spirit of these amendments.
9 p.m.
Baroness Seear: I should like to make a very brief point. I strongly support these amendments. I should like confirmation from the noble and learned Lord the Lord Chancellor that the physical setting in which these information sessions, the meetings, will have to take place will be as informal, unthreatening, friendly and unbureaucratic as possible. The people will be in a disturbed state of mind and the physical setting in which those activities will take place can make a great deal of difference to the way in which people receive what is said to them. I should very much welcome the comments of the noble and learned Lord the Lord Chancellor on that point.
Lord Jakobovits: Reference has once again been made to marriage counselling and to the opportunities for information sessions. I associate myself with so

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distinguished a friend as the right reverend Prelate the Bishop of Oxford and rise to add a few comments. The debate has now lasted virtually three days and I have attended most of it with enormous eagerness. If so far I have not contributed to the debate it is not because I have nothing to say. It is more that what I would have said on the specific issues that have been raised has been said so much more effectively by other speakers, notably the noble Baroness, Lady Young, the noble and learned Lord, Lord Simon, in part, and in great measure by the noble and learned Lord the Lord Chancellor. They were words which gladdened my heart and I am fully content to look upon them as representing my own Thoughts also.
I greet with enormous relief and enthusiasm what one might almost call the revelation that there is unanimity on the importance of preserving and strengthening marriage, which should not be taken for granted. There are today powerful advocates of the denigration of marriage by alternative life styles, as is the term used. En this Chamber there is still represented a respect and reverence for tradition and for the assumption that marriage is the basic unit of any civilised society and that is profoundly gratifying. What has been said in favour of that position commands my great admiration and enthusiasm.
Yet if there is something that I can contribute, it is to say that I miss two specific dimensions from this debate, which is now well into its third day. First of all, I miss a sense of alarm. The discussion has been conducted as though we have to accept the present utterly unacceptable figures for divorce. I suspect that we are not communicating to the public at large the profound unease that should stir the nation over a catastrophe in our social fabric which has no precedent and few parallels. That now gives us the questionable distinction of being the country, at any rate in Europe, with the highest divorce rate.
There must be something radically wrong in the whole structure of our society and in its education and commitment to certain moral levels, if we can witness a disaster on a scale that involves something like 600,000 individuals every year. I say 600,000 because in a divorce there are usually at least four people involved—husband, wife and, say, two children, on average—and that easily gives the figure that I mentioned. If anything on that scale were to happen by way of physical illness—a plague that were to strike us—how stirred we would be and how enormous would be the efforts of the leaders of the nation, spiritual as well as temporal and at every level, to create a profound sense of uneasiness and therefore to lay the foundations of a meaningful response.
We are dealing here with tens of thousands of children who might be crippled for the rest of their life through suffering from such a plague. They are the innocent victims of it. Therefore I feel that, in the first place, something has lo go out from us—we were speaking of messages—whereby we alert and mobilise our schools, our clubs, the media and perhaps even our Churches. We must realise that we are facing a
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catastrophe of enormous proportions, to which the first reaction must be one of alarm, so that it seizes us with a feeling of profound unease and anxiety for the future.
Let me turn to the more positive angle. I believe that the key to the entire problem of the virtual dissolution of the marriage bond today and the cheapness with which it is treated on such a wide scale does not lie principally in making divorce more difficult or taking a longer or shorter time for reflection. It is already too late when a marriage has reached the stage at which either one or both parties seek an exit and actively think of breaking their marriage vows and the marriage bond. By then, the principal damage has already been done.
The first line of defence against marriage breakdown is the way in which we train our children, our students, our brides and grooms before they enter marriage to realise that there are mutual obligations; that marriage is not only there for what one can take out of it, but for what one can give to someone else. We must therefore indicate to them the commitment and earnestness of marriage, if necessary, compulsorily.
If we had a traffic accident rate of anything like the scale of the casualties from which we suffer through divorce, we would do anything to ensure that before anyone is given a licence to drive a car, proper and adequate training are given and tests taken to ensure that the training has taken effect. We would not allow such an enormous rate of slaughter to take place on our roads without taking some precaution to ensure that we do not hand the wheel to someone who is not adequately trained to take care of others who may be affected, whether they be fellow passengers, pedestrians or indeed the drivers themselves.
The principal line of defence therefore should be to ensure, by proper legislation, that no one enters into what is now a minefield of marriage without some form of adequate preparation, with warning signals and perhaps even a little guide as to how to choose a partner. Today it is all done so haphazardly. Today they fall in love; tomorrow they fall out of it. There is no sense of realism in relation to the earnestness required in making the biggest decision of one's life; that is, the choice of a life partner. It needs some form of regularised government control and state-supported activity whereby no one is allowed to enter into this most sacred contract on which the stability of our whole society depends without some form of realisation of what is at stake.
Some Members of the Committee gave us extremely valuable accounts of their personal experiences. My wife often reminds me that when we got married, immediately after the marriage, her mother took her aside and said: "Now, daughter, you are linked, bonded to your husband. It is your duty to ensure that you make a success of it. If you do not, you cannot come back to my home".
A mother should give some form of realistic advice to children. Thankfully, the advice was heeded, and not only by me and my wife. We are blessed with six children, all of them happily married. The word "divorce" or any thought that there may be a termination of, or that the bonds of any of the six may be breached,

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never crossed their minds. It is a cheerful family. When we come home, we are not burdened, in addition to our other cares and anxieties in a difficult and brutal world, with facing the agonies of serious strife within the family.
I perhaps do not need to remind Members of the Committee of the high degree of conscience demonstrated in this debate and of the training which we all share through the moral heritage which is ours in common. In the Ten Commandments, side by side with each other, we have the law,
"thou shalt not kill",
with,
"thou shalt not commit adultery".
We believe that there is no difference between killing a human being and killing a marriage. Therefore, in the basic set of laws that have governed the progress of our civilisation to the present day and will, I am confident, continue to do so, an association is made that should be realistically appreciated; that is, that the worst offence that can occur against the stability of the whole of society is to allow offences to be committed against oneself and one's partner that are tantamount to murder.
If we try not only to instruct our children but set an example by creating here in this Chamber the reverberation that will eventually distribute echoes into every home in this country, we may succeed ultimately in reducing the enormous weight of casualties and have homes out of which will come a new generation of youngsters proud to be part of a society which is, creative, loving and whose promises and pledges are enduring for life.
9.15 p.m.
Lord Hylton: I agree wholeheartedly with my noble friend Lord Jakobovits. He was absolutely right to emphasise the importance of preparation for marriage. He put it so well, that it is a duty which is incumbent not only on the parents in the first place, but also on the Churches as regards their own faiths and congregations.
I would like to go one small step further. We need to work out a secular equivalent of the work of believing parents and Churches which have an active and faithful membership. We need to find some method of preparing young couples who have no particular beliefs and who do not belong to any existing faith or religion. I speak with just a little experience although it is now of some years ago. In the late 1960s and early 1970s, I was involved in London in preparing engaged couples to face the rigours of the housing market as it presented itself, with all its problems, in those days. Very often we had to convince young couples who had not given the matter much thought, that it was more important to secure a lasting and potentially permanent roof over their heads rather than to buy the very latest thing in furniture or household gadgetry.
Perhaps I may move on from that to thank and welcome what the right reverend Prelate the Bishop of Oxford is proposing in Amendments Nos. 163A and 163B. The definitions of marriage support services and marriage counselling are essential to be had on the face
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of the Bill. It may perhaps be that the particular definitions put forward in these two amendments are not absolutely perfect and are capable of improvement, but I strongly urge the importance of having adequate and satisfactory definitions of those two matters somewhere in the Bill.
I turn to Amendments Nos. 154, 162, 162A and 163 in various names. I do so because I spoke briefly last night when we were discussing reconciliation. I tried then to draw attention to the resources that undoubtedly will be required if comprehensive and national marriage support and advisory services are to exist and which will be available to all those who need them. I strongly suspect that that is not the case at the present time.
I invite the noble and learned Lord the Lord Chancellor, when he replies, to say something either on this group of amendments or possibly at a later stage, about what he considers is likely to be available in the way of resources for this very important work. In Amendment No. 163 the right reverend Prelate proposes that counselling sessions should be freely available. That is something on which perhaps there is scope for a variety of opinions. It may be that the relatively rich or reasonably affluent can afford to pay something towards the cost of the services that they will be receiving, but there can be little doubt that both the training of the personnel providing the services and their supervision while in post will be very costly exercises. Money for them will have to be found from somewhere. This is a most important group of amendments.
Lord Elton: As the noble Lord, Lord Hylton, specifically mentioned my amendment, Amendment No. 162A, which, like many other amendments which have now been discussed, falls within the next grouping, I hope that I too may graze in those pastures. It may be that my noble and learned friend will move his amendment, Amendment No. 162, and I hope that he will forgive me if I anticipate that by speaking to my amendment, which is an amendment to his. I address only the principle, not the mechanics—that is my excuse.
The noble Lord, Lord Jakobovits, made a most stirring speech in which he pointed out that the answer to the ill to be addressed lies largely outside the Bill. However, I tried in my amendment to point to an area which is relevant to this Bill and where the sense of the alarm that ought to be felt can to some extent be answered.
A year or two ago I chaired a committee of inquiry into discipline in schools, which ranged rather wide. Our attention was drawn to the apparent increase over the years in violence and disorder among pupils arriving in schools, and to research which attributed that to the children's upbringing and to the quality of the marriages in which they had been brought up. It is self-evident—is it not?—that some aspects of parenting are instinctive, but that most are learned. We observed an increasing and worrying number of children in our schools with single teenage mothers, some of whom were themselves the children of single teenage mothers. It seemed to us that there must be some way of breaking the cycle which is otherwise self-perpetuating.

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In chapter 5 we made a couple of recommendations about what might be done. Recommendation No. 69 was that the Secretaries of State should ensure that education for parenthood was fully covered as a cross-curricular theme in the national curriculum and that governors and head teachers should ensure that education for parenthood was fully covered in a school's personal and social education programmes.
We then went beyond our brief and in Recommendation No. 70 suggested that the Government should develop a post-school education strategy aimed at promoting socially responsible parenthood. I do not think that that recommendation was ever acted on. The situation is now more urgent than it was and given that the report was well received by the Government at the time I hope that they will revisit this matter in the near future.
Although this is the Family Law Bill, the Bill is concerned primarily with proceedings for divorce. Therefore, I suppose that I should discuss first the question of preparation for marriage. Again, I entirely agree with the noble Lord, Lord Jakobovits, that it is no good rushing to the fire with a bucket when the house has burned down; you have to take away the matches or provide a fire extinguisher in the house to start with. The first thing that we have to do is to teach people what marriage is about. Even that has an element of the classroom in it because marriage is about human relationships, one with another. In the same chapter of our report we discussed the fact that children were entering reception and nursery classes insufficiently educated within the family to be able to have. conversations or to play with their contemporaries. That is a disaster and it must be tackled. Those children will eventually become young married couples, so the problem has to be tackled in the school.
As this matter is largely still not understood or appreciated, the focus of my amendment is to ask my noble and learned friend, when he moves Amendment No. 162, to say that he will use some of the resources which he will be acquiring thereby not only for,
"research into ways of preventing marital breakdown",
but also for research into,
"preparation for marriage and preparation for parenting".
We must research how that education can be properly and effectively given. It is, as the noble Lord said, an emergency.
Baroness Faithfull: I wish to make three brief comments. First, I support the recommendations made by the right reverend Prelate the Bishop of Oxford. To take up a point made by the noble Lord, Lord Hylton, I am worried about finance. I am sure that my noble and learned friend must be also. I understand that Relate, for instance, charges people for its services. Will it continue charging them? I agree with the noble Lord, Lord Hylton, that those who cannot afford the service are not always receiving it at the moment.
My second point relates to accountability. I shall be moving Amendments Nos. 164 and 171 regarding the mediation service, and the whole issue of accountability; that is, supervising the training and running of the organisation.
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The third point relates specifically to my Church. There should be somewhere, such as Leeds Castle, so that everyone who is to get married in church can spend a week on a course. That is what would probably put it on the map.
Baroness Young: I support the amendments in principle. I am sure that they are in line with what we wish to see, which is the buttressing of marriage. If public money is to go to any of these organisation we want to ensure that they are organisations which believe that marriage is what people should be in, and not one of a series of alternative lifestyles. I find the name Relate an unfortunate one because it suggests that marriage is just one of a series of alternative lifestyles. If public money is to be used we want to be sure about where it is going.
Secondly, in the discussion about schools if we are asking teachers to do this work we must bear in mind that it is a tricky business. In a school one-third of the pupils will be from broken homes. I should not like to comment about the number of staff who are divorcing. It is difficult to ask people to conduct a great many lessons in marriage. It is not an easy proposition. We must be very careful what we are saying before we leap into doing that.
Baroness Hamwee: We seem to have to have moved on to the content of Amendment No. 162 tabled by the noble and learned Lord the Lord Chancellor. I wish to ask him one point which he may care to answer in response to this debate or when he moves that amendment. In proposing grants in connection with marriage support services, did he consider "family support services" as an alternative to that description? I ask that in the light of the debates the Committee has had about the importance of taking into account the position of the children of a marriage. I suspect that my concerns will be catered for by the description "marriage support services", but I should be interested to hear the noble and learned Lord's comments on support for families as well as marriage.
Lord Stoddart of Swindon: We seemed to have strayed on to the next group of amendments. To save the time of the Committee I want to make a few comments about Amendment No. 71B. I agree with the principle of marriage counselling provided that the counselling is designed to save the marriage. I agree with what the noble Baroness, Lady Young, just said. It is important that that should be the objective.
I also believe it is absolutely essential that the people who undertake the counselling are not qualified simply by examination. I wish to be assured that the people who undertake it will be qualified by experience too. Experience of life is necessary in order to counsel people on keeping their marriage together. I hope that those two aspects will be borne in mind; that is, not only a professional qualification but a qualification of experience and common sense.
Finally, I greatly welcomed the speech of the noble Lord, Lord Jakobovits. I am sorry that he has been unable to speak in previous debates. I never thought that

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I should find the message coming from the Synagogue more acceptable in many respects than that coming from the Christian Church.
9.30 p.m.
The Lord Chancellor: I too welcome the speech of the noble Lord, Lord Jakobovits, in which he associated himself with the speeches that have been made in these matters by others, including those from the Bench of Bishops.
We have before us an extensive group of amendments. I shall try to deal with them as best I can in the way in which they were raised. Perhaps I may first try to deal with the group at which we are formally looking; that which begins with Amendment No. 64. I have already dealt with some of them—
Lord Simon of Glaisdale: So far as I am concerned, my noble and learned friend has dealt with that group entirely satisfactorily.
The Lord Chancellor: I am glad to know that I am giving satisfaction in some quarter as regards at least part of what I have to do. I am grateful for that. However, I have not yet had an opportunity to deal with some amendments within the group which were spoken to by the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Oxford. One or two others have not been mentioned particularly but I shall try to skate over them.
As regards Amendment No. 69 and the point made by the noble Baroness, Lady Seear, I should like to. provide a system in which the information sessions are conducted in circumstances as congenial as possible. I take account of the fact that the way in which the sessions are provided is extremely important. If the sole source of information is a provider, in my view the person needs to be extremely balanced. That is why, on the whole, I am moving towards a situation in which the various providers of services are allowed to give their own information. I believe that a video presentation may be the most effective way of doing that because they can then say what they believe they are able to provide.
As regards Amendment No. 71, the right reverend Prelate said that those attending information sessions should be offered a counselling session with an approved marriage counsellor. I intend the information sessions to include information about the marriage counselling services that are available. The word "approved" is slightly difficult for me. I anticipate that grants will be given to organisations offering such services with some system of monitoring. I wish to ensure—and I believe that I am echoing the various anxieties expressed, for example, by my noble friend Lady Young—that if public money is involved what is given is reasonably effective for the purpose for which it is given. Therefore, I would not be inclined to approve individuals in that way, or indeed organisations, except in so far as they might be awarded grants. On an award of a grant I would wish to test that they had arrangements in place to monitor the success of the operation because I would be accounting for public money.
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The next one goes one step further and suggests that the counselling offered should be free. Obviously, I am very anxious that any resources I get are used to the best effect. Your Lordships will know this is a competition which one has to engage in yearly and quite a difficult matter it is, because the Government are faced with so many priorities. Many people who would wish t6 have counselling are quite able to pay for it; therefore I do not think that it should be a condition written into the Bill that the counselling session should be free.
There is another consideration. The noble Lord, Lord Jakobovits, mentioned most effectively the need to take action early. If it was the case that the counselling session before a divorce process—the one which I am able, as it were, to have some control over—was to be free, whereas the counselling sessions one was able to get earlier had to be paid for, that would put rather an unpleasant emphasis on the later ones. On the whole, if I had enough money, which is always a big question, I would prefer to encourage people to go early by making the earlier sessions free and the later ones perhaps not so free, because if the people did not come until awfully late it becomes more difficult and so perhaps the counselling should be made more costly. However, the point is that it would be an undue restraint on the need to use the money effectively.
The next amendment that I need to deal with is Amendment No. 73. It is associated with one or two other matters. Regarding the requirement to make regulations which shall deal with various matters, that I think is a matter of form. What one puts into it—and my noble and learned friend Lord Simon of Glaisdale has from time to time commented on that type of power—are the two essentials really. These are the need to prescribe time and place and so on, and also the need to give information in writing. I think that information packs, as well as direct personal information, are wise things to have because experience shows that a combination of these is often the most effective step.
The identification, qualification and responsibilities of an accredited information provider might well arise. If I am able to have the actual attendant more or less a formal person, obviously that would not be necessary with a video and some formal attendance. But I would certainly think it most important to ensure that the arrangements for the provision of information is effective and responsible.
Turning to Amendment No. 79, in this section "relevant information" means information about the benefits of marriage counselling, about the emotional, psychological, financial and legal aspects of separation and divorce and their effect on the parties and any children of the family. Obviously, these subjects would require to be covered and also, for example, the availability and nature of legal services, advice, representation and so on, together with various other possible services as well as marriage counselling that might be relevant.
I have no quarrel at all with the need to consult. I would not make regulations in this kind of area without wide consultation and I think it would be right for me here, since the consultation point is mentioned, to

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acknowledge the terrific help I have received personally from a great range of organisations, not least from all the Churches in addition to many other organisations. The noble Lord, Lord Jakobovits, has been very kind to me in giving me the benefit of his advice at various stages. I have had from many sources almost more advice than I could cope with, but I value it all. Of course it is not all to the same effect, I might say, and there is no unanimity of advice. There is a degree of variety, and indeed great variety, and I should like to acknowledge the help I have had from that.
I do not believe that we have had particular reference to Amendment No. 140, which is tabled in the name of the noble and learned Lord, Lord Archer of Sandwell. However, we did take account of it in our earlier discussion on the form of the information sessions. Obviously, I would want to take account of the substance of that amendment and the way that I would try to handle such a matter.
I now turn to the second group of amendments. I do so because I believe that practically all of them have now been referred to in some way or another and it may save a little time—which is obviously at a premium—if I were to speak to them. I have already said in principle what I have to say about Amendment No. 71B, which is tabled in the name of the right reverend Prelate.
I am anxious to keep open as far as possible the nature of the organisations to which grant might be payable. Referral agencies are sometimes useful. Indeed, some of them provide help lines which can provide people with information about the various services that might be available. The ChildLine is an example of that in relation to children and there are other types of helpline available. Indeed, I might find it useful to give grants to such an organisation which might not specifically fall within the type of service under discussion. I see that the noble Baroness wishes to intervene. I give way.
Baroness Seear: As regards what the noble and learned Lord said about charging and free services, did I understand him to say that it would really in a sense be—and I do not use the words—pejoratively "means tested", and that those who could pay would pay? Alternatively, is the noble and learned Lord really saying that everyone will have to pay something? If that is the case, especially at the stage at which the divorce is pending when people are thinking very hard about how much money they will have, I believe that a great many people will decide not to have counselling if they have to pay for it. While I quite agree that earlier on in the process is a better time to take counselling, sometimes those concerned have not done so at that time and the success or otherwise of saving the marriage may depend upon such counselling. Will that facility not be available free to anyone?
The Lord Chancellor: At present, some of the organisations provide such assistance free to some people. They then have a sliding scale of charges which depends to some extent, rather in a rough way, on the financial situation of their clients. I certainly would wish to take such matters into account when considering whether grants should be made.
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The last thing that I would want to do in the area is to have too detailed a system of regulation. I do not believe that the Government would be in a position—and, indeed, it would not be wise—to try to do so. After all, the Churches of many religious organisations which undertake marriage preparation have such a system. I would leave the responsibility for what they do to the people who have been assigned the task and take account of the nature of the arrangements that they make. For example, some organisations invite a donation. That is another way of dealing with the matter. I should like to keep the system as flexible as possible.
Baroness Elles: I have two points that I should like to raise with my noble and learned friend. They concern the information officer, so to speak, who will run the session. First, I presume that that person would merely be an administrative officer who would provide information but not give specific advice? Can my noble and learned friend give me either confirmation or denial on that point?
Secondly, such an administrator—or whoever it is—will give the information to an individual, whether it be in a group session or whatever. However, someone may come along and say: "I want to get a divorce. Can you please give me the information regarding who I should see?" After he or she has been to the information officer, presumably there is no obligation to do anything else but to make the statement? That is how I read Clause 8(2). I absolutely agree with the noble and learned Lord, and others who have spoken, about the need for marriage counselling; and, indeed, albeit at an early stage where there is property involved, about the need for legal advice as regards the children. Is it obligatory to see any of those people before making the statement? Further, how does that fall within Clause 8(2)?
If I have raised this matter at the wrong time, I apologise to my noble and learned friend—and he may like to answer later—but I think that it is very important, while we are discussing this clause, to define what the role of the information provider will be and the relationship between that provider and the person who will give the genuine advice or counselling that the party might need.
9.45 p.m.
The Lord Chancellor: My noble friend is right about the information provider that I have as my model, as it were. Even with that, one has to be quite careful because one can provide information with different emphases. That is why I have been rather keen, if I can, to at least have as one of the models for the trials that we will have on this aspect of the Bill a system under which the people providing the various services—the lawyers, the marriage counsellors and all the other people who may feel that they have an input to offer—are able to make their own presentation so that the emphasis, as it were, will come from the people explaining what they have. Then we will try to put it together in, perhaps, a video, or something of that kind, which contains these messages. One could have in more input personally to the editing of that than one could have a whole lot of

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individual sessions, conducted by individuals, where you are very much in the hands of the individual as regards emphasis.
The second point is that the best that I can do is to ensure that people get all the information available about the services on offer. You cannot compel them to take any particular service—that must be a matter for them—just as you cannot compel them to do other things that you might think was in their interest. They have to see to that themselves. After all, they are people who have been married, who have gone through a marriage service in church or at a registry office. The emphasis should be that we provide them with all the information that they need, as effectively as we can, and then leave them to use it, and use it to the best advantage that they see from their point of view.
I do not think that compulsion is likely to be useful at that stage. Of course, there is power in the court to direct that people should attend and be told about mediation if, for example, in the course of the process the court feels that they are trying to litigate things before they have had a proper opportunity of considering, or have not considered fully, the advantages of doing it by mediation. That will be a power in the Bill, but, otherwise, it will be a matter best dealt with in the way I have just described.
I was just going on to mention my own amendment, Amendment No. 162, which says:
"The Lord Chancellor may, with the approval of the Treasury, make grants in connection with
"(a) the provision of marriage support services."
The noble Baroness, Lady Hamwee, asked me whether I meant to include children in that. Yes, marriage support services include where there are children; they take account of that. I am inclined to use marriage support services rather than family support services for reasons which may already have appeared.
Paragraph (b) reads:
"research into the causes of marital breakdown."
I think this is quite important because if we are going to tackle the problem which the noble Lord, Lord Jakobovits, so forcefully drew to our attention a few moments ago, we need to look to see what is the cause of marital breakdown.
Paragraph (c) is related to research into ways of preventing marital breakdown. Many services are already in the field and dealing with these matters, and the working party, to which I have referred more than once, is looking at the extent of coverage by voluntary means of these services.
The voluntary services have a very distinguished record in this area. Many of them have raised money in difficult circumstances by their own efforts in order that they may help people who would not be able to afford the services if they had to pay the full cost. It is right for me to say also that many judges who are concerned with family cases have given of their time and effort, and I have no doubt also out of their own private pockets, to support services of that kind. That is one of the most eloquent tributes to the effectiveness of those services.
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My noble friend Lord Elton has tabled Amendment No. 162A. There are problems about just how far that goes. I do not wish to duplicate efforts on education. The Department of Education and schools have responsibilities in that connection, and as my noble friend Lady Young said, that is a delicate area. Depending on the situation, it may be difficult to become too deeply involved.
Lord Elton: Will my noble and learned friend allow me to point out that I am merely asking for a commitment to undertake research? If my noble and learned friend's department is taking into its hands the whole issue of divorce, it seems appropriate that it should also take into its hands the question of how divorce might be prevented. Clearly, it would then fall to other departments to implement the results of the research.
The Lord Chancellor: Paragraph (c) of Amendment No. 162 refers to research into ways of preventing marital breakdown. If my noble friend is content to leave it at that, the coverage which I have been able to agree is fairly comprehensive. In so far as it may impinge on areas which should be left to others to implement, all well and good. I believe that that phrase is general in character and fairly comprehensive.
Amendment No. 163 in the name of the right reverend Prelate, which is an amendment to Amendment No. 162, returns to the question of free counselling, which I have already dealt with.
I am not keen to use the specific phrase "marriage support services" as suggested in Amendment No. I 63A because, as I mentioned, there may be aspects which would not fall strictly under any of the headings and yet would be useful in connection with supporting marriage.
In addition, we have to hope that the Bill will last for some time and that other possible services may be developed in the future arising out of the research referred to in paragraphs (b) and (c) of Amendment No. 162. I have no doubt that marriage counselling requires training and supervision. Those aspects would be covered in relation to any grants that would be payable to a particular organisation.
I hope that I have dealt, albeit briefly, with all the matters that have been raised in these two groupings. Subject to what I have tried to say, I certainly wish to take account of them as we go forward.
Lord Stoddart of Swindon: Before the noble and learned Lord sits down, perhaps I may ask him one short question to save him making another speech. In Amendment No. 162 he refers to research into the causes of marital breakdown and research into ways of preventing marital breakdown. Will those items take into account a wide range of influences, including, for example, the taxation and social security systems in so far as they may militate against marriage?
The Lord Chancellor: The heading of research into the causes of marital breakdown is a very general one. It would certainly be right to take account of any factor

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which appears to contribute to marital breakdown. One would have to take account of what action was available to try to cope with the matter.
I do not wish to extend this discussion too much. However, one of the practical questions is: at what times, at what stages in the marriage, are these crises most apt to occur? One seeks to develop services and to make clear the availability of services at those critical points—I have no doubt the earlier the better. That is why I am anxious that the work of our interdepartmental group which has produced the work so far is encouraged.
Lord Simon of Glaisdale: We have again had a most important debate on a most important aspect of the Bill. There have been a number of remarkably fine speeches in the course of the debate. I hope that it is not invidious if I mention in particular the speech of my noble friend Lord Jakobovits. I presume to say that I entirely agree with everything he said. Subject to one very small reservation, I also agree with what was said by the right reverend Prelate. I might as well get that reservation off my chest. He proposed an amendment enjoining the Lord Chancellor to consult the agencies before making regulations. I am sorry to say that my noble and learned friend was altogether too indulgent to that suggestion. I am very much against cluttering up the statute book with injunctions to Ministers to do what they would do anyway. I know that the Opposition naturally regard all Ministers as morons. We do not take so jaundiced a view on the Cross-Benches. I think it is a pity when the statute book is already too prolix and expensive to put. in quite unnecessary injunctions.
We had a most helpful reply by my noble and learned friend. On the three amendments that I proposed his reply was entirely satisfactory. He told us the sort of circumstances where he had considered liberty to prescribe necessary. Having declared them, all his actions under that head would be construed in the light of what he told the Committee. In the technical language of draftsmanship, they would be construed ejusdem generis; and I thought that that was entirely satisfactory.
The major subject on which I wished to comment on the subsequent amendment related to the charging for services. I assume that there would be no charge for the interview. I hope that I shall be corrected if I am wrong.
So far as concerns counselling, when I invoked the assistance of the National Marriage Guidance Council and its Roman Catholic and Jewish equivalents to supplement the work of the welfare officers of the court, whose function was mainly mediatory and mainly relating to children, my impression was that they did not charge although they were grateful for contributions from those whom they had helped.
Naturally, I tend to take a pro-Treasury view, but we are concerned with a fundamental institution of society. It seems to me entirely worth while devoting funds—even at the expense of other worth-while projects—to assisting people who have got into the trouble which the Committee has been contemplating. I therefore hope that, whatever happens about mediation, everything covered by counselling is not charged for. Having said that, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
10 p.m.
[Amendments Nos. 65 to 80 not moved.]
Clause 8 agreed to.
[Amendment No. 81 not moved.]
Clause 9 [Arrangements for the future]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 82:
Page 5, line 15, leave out ("One of').
The noble and learned Lord said: There always comes an end to progress of the kind we have just made. Yesterday, in introducing Amendment No. 10, I listed the other amendments which it was suggested the Committee might find convenient to debate in the group. I said that I had spared the noble Baroness, Lady Trumpington, an unnecessary intervention. She subsequently took me to task, pointing out that she never made unnecessary interventions. I fully accept that rebuke. I meant, of course, that I had spared her the necessity of an intervention. However, I may possibly welcome her guidance at this stage, if only by an approving nod. With Amendment No. 82, the Committee may find it convenient to debate Amendments Nos. 83 and 86. The next group on the Marshalled List is Amendments Nos. 84 and 89 which relate to precisely the same matter. If I am in order, I suggest that the Committee may care to debate the two groups together. I am grateful to the noble Baroness, Lady Trumpington, for the approving nod.
Clause 9 seeks to ensure that before a divorce is granted the court is satisfied that proper financial arrangements have been negotiated between the parties or that the court has adjudicated on them. As was pointed out to the Committee yesterday, that provision appears to fly in the face of the Law Commission's original proposals. It was said that it might lead to hasty and ill-considered arrangements designed simply to facilitate the obtaining of a divorce order; alternatively, that it may lead to unnecessary subsequent applications to the court. I heard what the noble and learned Lord the Lord Chancellor said about that and I do not believe that this is the occasion to debate the issue.
The amendments go to a rather different matter. In the present state of the Bill the court may be presented with negotiated arrangements obtained simply, without a vulnerable partner or, indeed, without either partner having the benefit of legal advice. Normally, in matrimonial matters the proper way to approach it is for full disclosure to be made by both parties of their financial positions and any other relevant information, the taking of advice as to the various options for achieving a just division and a formal agreement that takes account of the various provisions and future eventualities.
Of course, the parties will have the benefit of mediation. With a competent mediator that may he sufficient in many cases, but it is not difficult to envisage a situation where their property and financial affairs are complicated, or one party is not disposed to reach a reasonable settlement or attempts to foreclose

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the options by disposing of the assets. In that situation negotiations may take place, if at all, very much at arms length. There may be a need not just for a single mediator but for legal advice to be provided separately to each of the parties.
In such a case, if a fair result is to be achieved—one that both parties will accept and neither party will afterwards regret—any attempt at settlement will require access to legal advice. That assumes that legal aid is available to both parties in order that they can take advice. As I understood what the noble and learned Lord said yesterday and also today, legal advice would be available to both parties and the mediator would know when it was necessary for either party to be referred for legal advice. I assume it must entail that when necessary legal aid will be available. The noble and learned Lord appears to assent to that proposition. If so, I can spare your Lordships a great deal of time.
The Lord Chancellor: That is so, as long as the parties qualify in financial terms for legal aid. Where legal advice is necessary the Legal Aid Fund at present has the opportunity to provide it, and that will continue.
Lord Archer of Sandwell: I am grateful to the noble and learned Lord. Of course, I accept the condition that they otherwise qualify for legal aid. If that is so, I can probably spare your Lordships a great deal of time. What has occasioned some hesitation on this side of the Committee is Clause 24. Clearly, that envisages that there will be regulations. The noble and learned Lord must have some idea of what he proposes to put into those regulations, but if the effect of them is that those who otherwise qualify for and require legal aid for this purpose have it, the difficulties are assuaged and I do not need specifically to move this amendment. I am most grateful to leave it there.
The Lord Chancellor: Before the noble and learned Lord sits down, perhaps I may answer the point. The purpose of the later clauses which deal with mediation is to extend the remit of the Legal Aid Board to permit it to finance mediation. We have a clause that gives a degree of emphasis to mediation. However, the general principles of the Legal Aid Act, and the references in that Act to legal advice and representation, are not affected. It is an extension of the scope of legal aid. As everyone knows, I have proposals for a more radical reform of legal aid, but so far as this Bill is concerned the present Legal Aid Act applies. What I seek to do is to extend the scope of it to include the funding of mediation, with a principle in favour of mediation where that is appropriate.
Lord Archer of Sandwell: I am grateful to the noble and learned Lord for his intervention. If Clause 24 is not intended to do more than that and to emphasise that in the first instance mediation must be the sensible option, I for one am content. However, for the purposes of this debate I beg to move.
Baroness Faithfull: As a patron of the mediation service, I should like to make just one short point. Questions have been asked about the legal position on
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advice given by mediators. A husband and wife who seek the services of the mediation service work out between them the legal position with regard to property, money and so on. All the cases that the mediation service work out with the family are advised to go to a solicitor to find out whether the arrangement is satisfactory. Some research was done and it was found that out of 100 cases that went to a solicitor, in only four cases did the solicitor say that it was not quite right. The other 96 cases were quite correct. The mediation service advises everybody to go to a solicitor after they have been to the mediation service to ensure that the legal position is correct.
Lord Archer of Sandwell: I am most grateful to the noble Baroness, Lady Faithfull. That reinforces the rather cheerful frame of mind in which I found myself at the end of the intervention of the noble and learned Lord the Lord Chancellor. In that situation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 83 to 86 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 88:
Page 5, line 22, at end insert ("and").
The noble and learned Lord said: I am not sure whether Amendment No. 85 was moved. There is a group of my amendments which is grouped with that one. I do not know why, except that they might all be drafting amendments. The amendments to which I want to speak are Amendments Nos. 88, 94, 156, 157 and 168.
Lord Elton: Will the noble and learned Lord tell us whether he is speaking to Amendment No. 85, which I thought had been dealt with together with Amendment No. 11 yesterday, or is he speaking to another amendment whose number I did not catch?
Lord Meston: I can clarify the position. I spoke to Amendment No. 85 yesterday.
Lord Simon of Glaisdale: Amendment No. 85 was called and a series of my amendments are grouped with it. I wish to speak to my amendment and I have indicated those which I consider ought to be grouped with it. I am generally in the hands of the noble Baroness when it comes to grouping but I hope that on this occasion she will not stop me from speaking.
My point is a very small drafting point that I can put quite shortly and without troubling the Committee to look at the Bill. This is a well drafted Bill and therefore I feel confident in asking for this point to be considered. It arises in those circumstances where one has, say, paragraph (a), paragraph (b) and paragraph (c). The style of draftmanship at the moment is strictly grammatical. The wording is:
"(a) … (b) … or (c)".
or:
"(a) … (b) … and (c)".
One has to look back from the last to see what is intended at the beginning. That is particularly inconvenient when the last paragraph is over the page. In each case I have put in "or" after "(a)" where it is disjunctive and "and" after "(a)" wherever it is

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conjunctive. All I ask is that if my noble and learned friend considers that there is anything in the point he will ask the draftsman to discuss it with his colleagues. I beg to move.
10.15 p.m.
The Lord Chancellor: The answer is yes. We have not yet reached Amendment No. 88 and Amendment No. 85 has not been moved. But the answer is yes and I hope that that may satisfy my noble and learned friend.
Lord Simon of Glaisdale: I suppose I am entitled to say thank you and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 87:
Page 5, line 21, leave out from ("parties") to ("and") in line 25 and insert ("(to which no objection has been notified to the court by the other party) that—

(i) he has no significant assets and does not intend to make an application for financial provision;

(ii) he believes that the other party has no significant assets and does not intend to make an application for financial provision;").

The noble and learned Lord said: I spoke to Amendment No. 87 earlier and will consider the point made by the noble Lord, Lord Meston, in relation to it. However, I felt it right to include it as it was intimated to be a government amendment. That does not preclude further consideration of the point made by the noble Lord, Lord Meston, yesterday. I beg to move.
Lord Meston: I am grateful to the noble and learned Lord for that indication. It occurred to me also that some provision should be made for those declarations to be in some way scrutinised by the courts. I am concerned about the provision and the possibility that it may be misused. The bare declaration of one or indeed both parties that there are no significant assets and the statement that it is not believed that the other party intends to apply to the court is something which the court should look at with some care.
The Lord Chancellor: Those documents are before the court as a prerequisite of making a divorce order. The court will therefore have a chance to look at them. I do not know whether the noble Lord has any other specific point in mind. The intention is that the court will have the documents as part of the fundamental jurisdiction to grant the divorce order. If there is anything sinister about the documents or something appears to be wrong, I shall expect the court to take account of that.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Baroness Cox): Amendment No. 88 was pre-empted by Amendment No. 87.
[Amendments Nos. 89 to 95 not moved.]
On Question, Clause 9, as amended, agreed to.
[Amendment No. 96 not moved.]
Clause 10 [Hardship: orders preventing divorce.]
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[Amendment No. 97 not moved.]
Lord Meston Lord Meston moved Amendment No. 98:
Page 5, line 41, leave out ("the other") and insert ("either").
The noble Lord said: In moving Amendment No. 98 I shall speak also to Amendments Nos. 103, 110, 111 and 117. These amendments are the first which take us into Clause 10.
Earlier today the noble and learned Lord the Lord Chancellor pointed to the potential use of Clause 10 to protect those who do not consent to divorce in special circumstances. Amendments Nos. 98, 103, 110, 111 and 117 are drafted to deal with the problem of those for whom a secular divorce does not terminate the marriage in the eyes of their specific religious group and for whom a religious divorce may also be required. As I understand it, this is a particular problem in Islamic and Jewish law. The arguments were rehearsed briefly by myself and more fully by the noble Lord, Lord Jakobovits, at Second Reading. I hope that it is only necessary to repeat them briefly.
It is perhaps important to appreciate two points, which I understand to be common to both Moslem and Jewish marriage law. First, the observant cannot remarry without a religious divorce; a secular divorce is not enough in the eyes of their particular faiths. Secondly, in both cases it is only the husband who can initiate the procedure and therefore, by that very fact, the wife is at some disadvantage. The result in practice is that the husband's willingness to initiate the procedure becomes a bargaining counter in the financial proceedings. I can tell the Committee from experience, acting for Jewish clients, of long sojourns outside the door of the court, wandering up and down the corridor, negotiating in effect the price to be paid for the husband to initiate the GET procedure. Therefore, it seems necessary in this Bill to take the opportunity to right what many regard as an injustice. It will enable a true, clean break to be achieved and both the parties to have the right to remarry according to their religious beliefs. It gives the wife in particular the right to negotiate on equal terms.
Apart from the practical problems which I have described and my experience of it in practice—and I know of other matrimonial practitioners who have experienced the same, one can almost say week in and week out—very recently there has been a clear and scholarly analysis of the problem in a book entitled Family Law and Religion by Carolyn Hamilton. Reading that book I realised that this problem was before Parliament only recently in the sense that a provision was introduced for consideration by another place in 1984 as an amendment to what was then the Matrimonial and Family Proceedings Bill. The amendment was introduced to aid both Moslems and Jews in obtaining a religious divorce, but apparently the amendment was withdrawn because the Government, in the form of the then Solicitor-General, suggested that the provision was not suitably drafted for introduction into that particular Bill. It was suggested that consultation would follow with the relevant religious bodies and that the issue would be reviewed by the Government for future action.
I do not know what has happened as regards the Government in the intervening 10 or 11 years, but I can say that the way in which these amendments have been brought back before Parliament show that considerable care has been taken in their drafting. I hope that an opportunity can now be taken to address the imbalance which I suggest exists for certain categories of people. I beg to move.
Lord Jakobovits: I indicated in my speech at Second Reading that an amendment would be moved to try to overcome what has proved to be a very grave cause of distress and therefore should invoke the hardship bar in a very specific way. During our detailed discussion of the Bill I intimated that an amendment to that effect would be moved in Committee. I am most grateful to the noble Lord, Lord Meston, for having drafted as well as presented this amendment. We have consulted a number of other legal, rabbinical and communal experts to whom we are immensely grateful for their efforts to find a solution to what is at present still an agonising problem.
The need for this amendment arises from a strange anomaly in the law as it stands. The Marriage Act 1836, followed by all subsequent Acts, right up to the latest one in 1949, includes the following provision:
"The Society of Friends, commonly called Quakers, and also persons professing the Jewish religion, may continue to contract and solemnise marriages according to [their] usages; and every such marriage is hereby declared and confirmed good in law, provided that the parties … be both of the said society or both persons professing the Jewish religion respectively; provided also that notice to the registrar shall have been given".
That is the wording of a law that has now existed for over a century and a half.
In other words, the civil law expressly recognises a synagogue marriage as legally valid, and no separate civil marriage is required, such as is required in some other countries, for example, in France where I was married and where I had to go through a separate civil marriage ceremony in the Mairie or the town hall. Here, the state accepts the synagogue ceremony as constituting both the religious and the civil bond between the parties.
Yet in dissolving that dual bond by divorce, the law requires only the civil contract to be revoked while leaving the religious bond intact. If thereafter one of the parties remarries, content with just a civil divorce, the other spouse, who may regard the religious marriage as still valid, cannot remarry until a religious divorce is obtained; and if the first party refuses that, the second may remain what we called "chained"—that is, tied in a limping marriage, unable to be released until the religious bond is severed. That can lead to either lifelong loneliness or to blackmail and extortion.
That situation can affect either spouse since the termination of the religious bond requires the consent of both, just as the marriage contract can be established only with the agreement of both sides. In fact, I am informed by the Jewish authorities dealing with that situation in this country that at present about one-third of the "chained" spouses are men and that two-thirds are women.
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The law in question is not ordained by rabbis, but is biblical. The relevant verse, verse 2 of chapter 24 of the Book of Deuteronomy, reads:
"and he shall write for her a deed of divorcement and give it in her hand",
and no rabbi is authorised to cancel or to override any biblical law; nor can a contract in principle be terminated except by the parties who established it.
The problem is not due to any anomalies in Jewish law. Were we to have exclusive jurisdiction in matrimonial matters, there would be no difficulty since, in general, we would merely refuse to administer a divorce which does not enable both parties to remarry. It is hoped therefore that the proposed amendment will achieve that amelioration of unspeakable hardship occasionally resulting from the law as it stands.
Finally, the Committee may be interested to know that similar legislation has recently been introduced in several other countries and states, such as the USA, Canada, South Africa and Australia.
10.30 p.m.
Lord Archer of Sandwell: Since I adverted to this matter on Second Reading, I intervene merely to say that I support every word that has come from the noble Lords, Lord Meston and Lord Jakobovits. I think that the noble and learned Lord the Lord Chancellor indicated on Second Reading some sympathy with what was said on this issue. I therefore do not propose to trouble the Committee further.
Lord Simon of Glaisdale: My recollection of the history of matrimonial law is that marriages of Jews and Quakers have always been outside the main code. They were exceptions when all marriages had to be in a church or chapel of the Church of England. They remained outside when, in 1836, marriages in register offices were recognised. They were always exceptional. It seems to me that an exceptional case has been made out here.
Baroness Hamwee: I have three amendments in this group. I do not intend to move Amendment No. 101 which, in drafting, was linked with amendments we debated and disposed of earlier.
I hope that does not detract from the serious points on this clause which have been made and with which I associate myself. Amendments Nos.111A and 114A have been tabled merely to explore the difference in wording between subsections (2) and (3). In one case there is a reference to the "dissolution of the marriage" and "the marriage to be dissolved", and in the other to "dissolving the marriage" and "to dissolve the marriage". They are different words. I am interested to know the difference imported by them.
Baroness Young: I thought that it might be for the convenience of the Committee were I to speak to my amendments which are grouped with Amendment No. 98; that is to say, Amendments Nos. 99, 104, 106, 108 and 115. This is an important group of amendments. The amendments deal with the hardship bar. Of course the present law includes special safeguards in the case

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of an innocent spouse who does not want a divorce: first, five years' separation; and, secondly, there is a bar where there would be grave financial or other hardship, and where, as I understand it, in all the circumstances it would be wrong to dissolve the marriage.
As I understand it, some 6 per cent. of divorces are granted on the basis of a five-year separation, but in 25 years the hardship bar has been accepted only once, and that was based on grave hardship. There have been few reported cases on financial hardship. The purpose of all the amendments is to strengthen the bar and to help resolve the situation.
I have received advice from Dr. Cretney of All Souls College, Oxford who has written to me to explain why the hardship bar has not operated. I am sure that my noble and learned friend will be well aware of the legal reasons.
It is so important that the hardship bar should work arid help that I have tabled this series of amendments. I support the amendment moved by the noble Baroness, Lady Hamwee, which covers the same point. My Amendment No. 99 gives a safeguard to a spouse who does not consent to a divorce. On application to the court an order can be made preventing a divorce for a period of two years. Amendments Nos. 104 and 105 bar on grounds of grave hardship to the children of the marriage. Amendment No. 108 extends the hardship bar, taking in the welfare to children. It also bars divorce on the basis of conduct, loss of financial benefits or impediment to a career. Amendment No. 115 substantially strengthens the hardship bar. The proposed subsection (3)(a) sets out the circumstances in which a divorce could be barred. Those circumstances are where a divorce would be prejudicial to the interests of children; where one spouse suffers from ill-health or disability or injury; where divorce would be contrary to the religious beliefs of one of the parties to the marriage; and where one of the parties seeks a further period of conciliation.
At this late hour I will not go at length into all of those matters but I hope that my noble and learned friend will consider them. I believe that this is a most important part of the Bill which, apparently, has been previously inoperative. There are a number of amendments, none of which may be quite right. I believe that the amendment of the noble Baroness, Lady Hamwee, covers the same point. It would be helpful if my noble and learned friend were prepared to look at the appropriate safeguard to put into this part of the Bill.
Lord Irvine of Lairg: I believe that it comes naturally within this rag-bag of amendments, if I may put it that way, for me to speak to Amendment No. 102, which stands in my name, immediately after the noble Baroness, Lady Young, has spoken to the amendments standing in her name. Even at this late hour it gives me particular pleasure to be able to make what I regard as substantial common cause with her on this issue. I certainly join with her in inviting the noble and learned Lord to consider the way in which the hardship
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provisions currently work. The purpose of my amendment is to make a specific proposal in that regard with a view to strengthening them.
As I have indicated, I do not shrink from the proposition that divorce should be made harder to obtain where justice requires that to be so. What I have suggested in Amendment No. 102 is the taking out from the current Bill of the statutory language indicated and the insertion of the new language:
"significant detriment to the welfare of any child of the family; or … serious prejudice to the other party".
The noble and learned Lord may say that that is to no purpose because the same position obtains under the present law—that is to say, under the Matrimonial Causes Act 1973. The words which I suggest should be taken out of Clause 10(2)(a) and replaced by the words in this amendment are the very language of the present statute. I am suggesting the removal of the language of the present statute.
However, I believe that my intelligence is the same on this subject as that of the noble Baroness, Lady Young. I invite the noble and learned Lord to consider that that might be precisely the mischief that needs to be eradicated. It is the mischief in the current statutory provision, the current statutory language, which is carried into the Bill. All the intelligence that I have is that the current statutory language has proved to be something of a dead letter.
If I may remind the noble and learned Lord, Lord Simon of Glaisdale, who I am sure needs no reminding, of what he has said on any previous occasion in our discussions on this Bill, he observed on Second Reading (at col. 748 of Hansard) that it is only once since 1970 that the court has invoked that statutory provision and has withheld divorce on that ground. There may be a very small number of examples, but I understand them to be infinitesimal. What the noble and learned Lord, Lord Simon of Glaisdale, said on Second Reading accords with what family law practitioners have told me.
Basically, the courts have construed the present hardship provisions on the basis of asserting a public interest in dissolving marriages which have become an empty shell and have in effect disregarded grave financial hardship as a ground for not dissolving marriage. In Mathias in the Court of Appeal, a woman argued that her marriage should not be dissolved because she would lose an army and a state widow's pension. The Court of Appeal held that there was a public interest in dissolving marriages which had become an empty shell and that the prejudice she alleged did not qualify as "grave financial hardship". Therefore the purpose of this amendment is simply to offer a suggestion to the noble and learned Lord for his consideration.
The primary provision in the Bill is that concluded arrangements for the future must be in place before the court can order divorce. That is Clause 2(1)(c). The arrangements are those set out in Clause 9 but that is wisely made subject to exceptions in Clause 9 (5), and the relevant exception is at page 38 in Schedule 1 at paragraph 2(d). It is from that language that I am borrowing for the suggestion that I make in this

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amendment. Even although there are no concluded financial arrangements after the expiry of the year for reflection and consideration, still the court may grant a decree if a delay in granting a decree either,
"would be significantly detrimental to the welfare of any child of the family,"—
I think that accords with one of Lady Young's concerns—or,
"would be seriously prejudicial to the applicant".
That is the criterion for overriding the basic requirement that no divorce should be granted until financial arrangements are concluded.
The suggestion that I offer the noble and learned Lord, since my intelligence accords with that of the noble Baroness, Lady Young, that the current provision has become something of a dead letter, is that we should adopt as the relevant criterion for denying a divorce after expiry of one year the same criterion as I have described for overriding the basic requirement that no divorce should be granted until financial arrangements are concluded; namely, the detriment to a child or prejudice to the other party.
The reason for incorporating the language of Schedule 1, paragraph 2(d) into Clause 10(2)(a) in substitution for the existing statutory language is that Parliament should make its will plain to the judges; namely, that it desires the same test to be applied in these undoubtedly exceptional but cognate situations. That is, the criterion which the Bill lays down for permitting a divorce to go through after expiry of the year for reflection and consideration although financial arrangements are not in place. The criterion is the prevention of detriment to the welfare of a child or prejudice to an applicant. That likewise should be the criterion for withholding a divorce although the year has expired. Again, in that situation, the criterion should be the prevention of detriment to the welfare of the child or prejudice to the other party. All the intelligence that I have received is that the previous statutory formula does not achieve its intended effect in practice. Therefore, I offer the suggestion that I have just explained to the noble and learned Lord.
10.45 p.m.
Baroness Elles: In view of what the noble Lord, Lord Irvine of Lairg, and indeed my noble friend Lady Young have said, perhaps I may speak briefly to Amendment No. 115A which is tabled in my name. I believe that there is very little difference between us. My amendment very much accords with the views expressed by the noble Lord, Lord Mishcon, earlier this afternoon. He said that there would be certain special considerations which could be dealt with in Clause 10, especially in those cases where one of the parties did not consent to a decree of divorce.
As the noble Lord, Lord Irvine of Lairg, and my noble friend Lady Young have indicated, there are certain justifiable reasons which could be taken into account by the court whereby discretion could be used to decide whether there should be a decree preventing the order
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of divorce or, alternatively—following Clause 10(3)—whether there should be an application for the cancellation of an order preventing a decree of divorce.
My amendment does not seek to delete those provisions in subsections (2) and (3), but proposes to add to the clause the provision that,
"For the purposes of subsections (2) and (3)",
certain circumstances should be included and taken into consideration. They are not exhaustive, but they could be included. The first is,
"the welfare of the children of the marriage",
to which the noble Lord, Lord Irvine, has already referred. I have then included,
"the conduct of the parties",
where there might be specific circumstances. Again, I shall not go into detail tonight because I think such matters have been fully discussed during the course of our debates. However, that really refers to the kind of thing where it would be very harmful either for the children, or impossible for one of the parties, to go through a divorce at that particular time. Finally, I have inserted the consideration of,
"the loss of any financial benefit, or benefit in kind".
One could perhaps imagine a situation where someone is taking a course of education in order to further a career and the prospect of a divorce at that particular time could, in fact, damage the possibility of that person continuing for, say, three months, six months or whatever it might be. Such a provision would allow for a decree to be delayed.
I referred to the question yesterday of whether it is better for children to be in a home of high conflict rather than be in a one-parent family or with step-parents. In that respect, I have added a rider to my amendment that,
"in the absence of clear evidence to the contrary by [them] remaining under the care … and control within the marriage of their two natural parents".
Of course, that provision would not be enforced. However, it would be something that the court could take into consideration where it is clear that the children would benefit and prefer to be with their parents; and, indeed, where the parents could come to an agreement at that stage of the proceedings. It is not an obligatory condition; it is a provision that the court would be free to take into account.
Lord Archer of Sandwell: Now that it is clear that we are debating all the amendments in the group, perhaps I may speak again and say a few words about Amendment No. 116, which is tabled in my name. I believe that I can spare the noble and learned Lord the Lord Chancellor some trouble in that respect. The amendment was tabled in consequence of what I am now satisfied was a misconstruction of the Bill. It was designed to put right a problem which does not exist.
Lord Hylton: I listened to the noble Lord, Lord Meston, and to my noble friend Lord Jakobovits speaking to their series of amendments with considerable sympathy. That was somewhat increased by the memory of a conversation that I had in Jerusalem nearly four years ago with a distinguished member of

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the Parliament of Israel who is now a Minister in the present government. She explained to me the extreme difficulties that arise in Israel over the status of women.
Well, be that as it may, perhaps I may, as a complete layman in such matters and in no way a practitioner in such difficult areas, ask the noble and learned Lord the Lord Chancellor whether he will deal with the following question in his reply to the debate. In the event of the amendments in the names of the noble Lord, Lord Meston, and my noble friend Lord Jakobovits being accepted, can the noble and learned Lord say whether they would be undermined, and the ground cut from underneath them, by the series of amendments to which the noble Baroness, Lady Young, spoke?
Lord Simon of Glaisdale: I speak to my Amendment No. 100 which seeks to leave out the word "grave". The background was referred to by the noble Lord, Lord Irvine of Lairg, referring to my speech on Second Reading.
We now have divorce by unilateral repudiation on one year's notice. As I ventured to argue on Second Reading and earlier in this Committee, that is inherently liable to cause injustice to married women. A married woman in the situation described in the passage I cited from David Morrisey's book might well have—many have—sacrificed herself in the interests of her children, aged herself by bearing children and allowed her husband thereby to go out, to his economic advantage. Then, when he turned to somebody else—because his original passion faded and he was renewing it with somebody else—he could cast off his first wife. That is obviously a situation of injustice.
The provision in the Bill came into the law for the first time in 1969 in reference to divorce after five years separation. The sort of argument I put forward, and which has been put forward elsewhere in the debate, was then raised. The object of the 1969 Act was to facilitate divorce, in which it certainly succeeded. Therefore there was stern resistance to the removal of the word "grave" before "hardship" with the result that has been explained. It has been virtually a dead letter. Even financial hardship has been hardly used.
The situation is far more serious now where there is unilateral repudiation not after five years but after one year has elapsed from notice.
My amendment merely omits the word "grave". One asks why should any woman who has committed no fault at all but merely ceased to find favour in her husband's eyes—a husband who has preferred to cast his favours on another—be expected to suffer hardship before he is allowed to go on his way?
I prefer the amendment of the noble Baroness, Lady Hamwee, to which she has spoken. That amendment refers to "financial prejudice". Although I am attracted by the amendment of the noble Lord, Lord Irvine, I believe that the amendment in the name of the noble Baroness is preferable.
The test of hardship is an unsatisfactory one. It appeared in the Matrimonial Causes Act 1937—Herbert's Act—to which I referred earlier, which barred divorce for the first three years of the marriage.
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However, there was an exception for exceptional hardship and depravity. That was extraordinarily difficult to construe. Parties tended to dress up the evidence so that the hardship did appear to be exceptional, and the depravity was similarly dressed up.
The test proposed by the noble Baroness, Lady Hamwee, is very much easier for the court. Although it is true that judges are not paid to make easy decisions, they are more likely to be right when all that is required is a balance of financial advantage and disadvantage.
I have said that I shall move none of my amendments, but I shall be grateful for the comments of my noble and learned friend.
11 p.m.
The Lord Chancellor: This is a very important and rather varied group of amendments, but I shall not use the phrase that the noble Lord, Lord Irvine of Lairg, used about them.
I regard Amendments Nos. 111A and 114A in the name of the noble Baroness, Lady Hamwee, which are drafting amendments, as improvements on the Bill and am happy to accept them. Therefore, when we reach them I shall be happy for the noble Baroness to move them and I shall advise the Committee to accept them.
I should like to have an opportunity to consider all of the other amendments. There are groups of subject matters. The subject matter of children is an important one. I want to take this opportunity to offer the Committee a very full account of the literature on children and divorce which I have had available to me. Since it is a comprehensive list of the literature it would be inadvisable for me to read it out now. Therefore, I shall offer a copy of the list to any Member of the Committee who asks me for it, either now or later, and I propose to place a copy in the Library.
At the invitation of my noble friend Lord Coleraine, I read from The Exeter Family Study earlier. One could read the whole report with profit, but there is a passage on page 54 relating to conflict which I should like to mention expressly. It states that,
"parental conflict has proved to have by far the closest association with any difficulties experienced by children. The general conclusion to be drawn from a review of this literature is that high levels of conflict…are closely associated with poorer outcomes for children. Some studies have shown that measurable behavioural difficulties can be identified in high conflict families before the breakdown of the marriage, and may even largely explain any later effects of family disruption".
Obviously I shall consider all the amendments carefully. It is important to consider whether practical advantage will accrue to the children by postponement of the order of divorce. I think that the positive question is the best way of looking at the matter. If we are going to go down the road of allowing the court, under Clause 10, to refuse a divorce in relation to the welfare of the children, it should be by seeking to identify a positive benefit which is likely to accrue to the children by the postponement of the order. To a certain extent, any such order is bound to have some adverse effect. The question is: can that be ameliorated to any extent by postponing its grant?

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I am content to consider the amendments as regards financial matters. I am anxious because I know that when one introduces a new phrase into the law it takes quite a long time before a settled interpretation is reached. Sometimes these matters arrive at your Lordships' House and, just occasionally, your Lordships' House having reconsidered what it said before may find it possible to improve upon its previous interpretation. Therefore I am not anxious, if I can avoid it, to introduce new phrases into the law. On the other hand, there has been some reference to phrases already in the Bill which could be used, and therefore it may be that some ultimate economy could be achieved by using one of those rather than having a variety of different phrases in different places in the Bill.
As regards the amendments moved by the noble Lord, Lord Meston, the noble Lord, Lord Jakobovits, and associated with the name of my noble friend Lady Young, this is a difficult matter. The reference is to impediments in the substantive amendment which states:
"For the purposes of this section, where one party's ability to remarry will be materially impeded as a result of the other party's failure to remove all barriers to remarriage",
and so on. Obviously these are not impediments or barriers created by the general law. They are barriers of another type. I have been familiar with this problem almost from the time that I became Lord Chancellor and the noble Lord, Lord Jakobovits, came to see me about it; and I have received representations and have had meetings with a number of those concerned with these matters, including the noble Lord, Lord Meston, the noble Lord, Lord Mishcon, and others. Many have suggested to me more specific amendments. This is a carefully and very generally drafted amendment which in some ways makes it easier to consider incorporating it in the Bill because it does not refer to any specific difficulties.
Members of the Committee will appreciate that I am anxious not to create unnecessary litigation. One of the purposes of the Bill is to do what we can to reduce the risks to the relationship of parents with both their children as a result of divorce, and unnecessary litigation would be in conflict with that principle. Therefore I am anxious that if this hardship clause, the Clause 10 power—I call it that; it may be effected differently if one takes some of the amendments instead of the provision as drafted—is too wide, we may have absolutely unnecessary litigation. There is no point in simplifying one part of the system in order to produce complications in another. Subject to that, I shall consider the amendments carefully. That may be sufficient for present purposes.
Lord Hylton: Perhaps I may invite the noble and learned Lord to comment on the interaction between the amendments of the noble Baroness, Lady Young, and those spoken to by the noble Lord, Lord Meston, and my noble and learned friend.
The Lord Chancellor: I do not see any conflict between them in principle. The precise drafting may
1014
need to be examined, there is a degree of overlap between some, but in principle the kind of difficulty addressed by the amendment of the noble Lords, Lord Meston and Lord Jakobovits, is of a different character from the difficulties addressed by the noble Baroness, Lady Young, in her amendment as well as those of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Irvine, about financial prejudice. There is another head relating to children and all three could be operated independently or all together, depending on the court's view of the matter. I see no conflict in principle between the court having power in respect of any one or more of the three heads to examine the possibility of postponing the grant of an order of divorce in the circumstances envisaged.
Lord Meston: I agree with the noble and learned Lord the Lord Chancellor on the point. I see no problem in the interaction, if there is any, between the various amendments. As he said, there is a measure of overlap in that Amendment No. 108 in the name of the noble Baroness, Lady Young, incorporates the specific point about a religious divorce which is more specifically covered in the amendment which I first introduced.
As I understand the indications from the noble and learned Lord, he appreciates and is already aware of the difficulties. The barriers to which he referred and which I sought to address in the first amendment in the group are barriers of serious concern affecting the parties before the court. In my submission, it is incumbent on the court, if at all possible, to seek to help the parties to work round or over the barriers.
The Lord Chancellor: Before the noble Lord proceeds, could he help me on whether anything other than religious barriers of the kind we have been discussing could come under the head of his amendment? I have been considering that, so far without much constructive result. He may have thought about it and be able to help me because it is a difficult area.
Lord Meston: I have to say that it never occurred to me that it would control—if that is the correct word—anything other than religious barriers to a remarriage in the circumstances that I indicated in my opening remarks. I shall look again at the wording in case there is a problem, but I cannot foresee one.
As regards the other amendments, it is perhaps not for me to say more. I should have mentioned that Amendment No. 111 is purely a drafting amendment designed to give the court a power to cancel an order which the Bill in its existing form does not appear to do. On the other amendments, I fully agree with the noble Lord, Lord Irvine, that in practice the existing barrier or the hardship bar is rarely invoked and even more rarely does it succeed. The conventional advice to a client in such circumstances is simply not to try to use it.
I suggest that even at this late hour we have had a valuable debate and the future emphasis in debates on the Bill may well revolve around Clause 10. It seems to me that Clause 10 is the way in which many of the anxieties expressed about the Bill could possibly be resolved. The noble and learned Lord, in the language

1015
of the Bill, suggested that there be a period of reflection and consideration on these matters. On this occasion I hope that it will be a much shorter period than one year. Indeed, we shall be able to return to these matters at Report stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale: I beg to move that the House do now resume.
It is ten minutes past eleven o'clock. If my Motion is accepted by the Government, I will sit down at once; otherwise, I shall try to satisfy your Lordships why we should rise now and resume the Committee later. I see that the noble Baroness makes a convulsive move. I hope that that is approbatory.
Moved, That the House do now resume.—(Lord Simon of Glaisdale.)
Baroness Trumpington: I do not think I can do anything convulsively at this time of night. There is light ahead in the tunnel. We will finish pretty soon, but not now. If the noble and learned Lord insists, the matter can be voted upon. I leave it in his hands.
Lord Simon of Glaisdale: I have no objection to the next group of amendments up to Amendment No. 117 being called. I hope that that will assuage any worry on the part of the Whips. The noble Lord, Lord Meston, has just referred to the late hour. It is ten minutes past eleven o'clock. The noble Baroness says that we will end soon. Can she indicate what "soon" means?
Baroness Trumpington: Nobody longs more for my tiny truckle bed than me. I can tell the noble Lord that we will finish at the end of Clause 13; in other words, at Amendment No.153.
Lord Simon of Glaisdale: I am not quite sure about that. At the moment, I believe that the proper course is to withdraw the Motion that I have proposed.
Motion, by leave, withdrawn.
[Amendments Nos. 99 to III not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No.111A:
Page 6, line 10, leave out ("dissolving") and insert ("dissolution of').
On Question, amendment agreed to.
[Amendments Nos. 112 to 114 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 114A:
Page 6, line 13, leave out ("to dissolve the marriage") and insert ("for the marriage to be dissolved").
On Question, amendment agreed to.
[Amendments Nos. 115 to 117 not moved.]
Clause 10, as amended, agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 118:
Before Clause 11, insert the following new clause—
ADVICE TO CHILDREN OF DIVORCED PARENTS: CHILD PROTECTION AGENCIES
(". A child protection agency shall provide help and advice to
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children of divorced parents who find themselves disadvantaged by the terms of the court settlement at the time of the settlement or thereafter.").
The noble Baroness said: This is a probing amendment which seeks advice from the noble and learned Lord. A number of parents, both men and women, have come to see me to say that in some cases the access arrangements are not being carried out by one or the other parent. If it is a woman, very often she cannot afford to go to court when the order is not being carried out. That also goes for men. I am afraid that a number of women give excuses, saying that the child is not able to go for its access visit, the child has an examination or a football match, or is ill. Many men have been to see me to say that they are losing contact with their sons and daughters because the access arrangements are not being adhered to.
In those circumstances, and if the parent cannot afford it, is he allowed legal aid to go back to court? I beg to move.
The Lord Chancellor: The ordinary arrangements for legal aid would apply for those who cannot afford it otherwise. In other words, if they are within the legal aid limits, it would be possible. I believe that that is the right arrangement. If things are not working, the person who is aggrieved by that can go back to court. That is the present system. I think it would be right that the information given at the beginning of the whole business should include reference to that possibility. One would hope to avoid it altogether, but if the situation arose, that is the way in which it would be dealt with.
Baroness Faithfull: I thank the noble and learned Lord. I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Lord Chancellor's Rules]:
[Amendment No. 119 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 120:
Page 6, line 23, at end insert—
("( ) as to the form in which a statement is to be made:').
The noble and learned Lord said: We discussed this amendment in relation to an earlier one. I wish to make it clear that the form in which the statement has to be made is something which one can deal with. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 121 and 121A not moved.]
Lord Meston Lord Meston moved Amendment No. 122:
Page 6, line 43, leave out ("whether") and insert ("that").
The noble Lord said: I shall very briefly move this amendment, to which I did not have the opportunity to speak earlier. It seeks to alter the provisions of Clause 11(2) in that the existing provision in the Bill suggests that the Lord Chancellor may make rules which include a rule to require a legal representative to certify at such times as may be specified whether he has discussed with the parties the possibility of a reconciliation and various other matters.
That seems to me to reproduce the, frankly, lame procedure under the existing legislation whereby, on filing a divorce petition, a solicitor is required also to lodge with the court what is called a certificate of reconciliation. He does not, in fact, have to say that he has discussed with the party filing the petition the possibility of a reconciliation. He can comply with it, as he would be able to comply with the requirements under the Bill as it is presently drafted, by simply certifying that he has not discussed with his client the possibility of a reconciliation.
It seems to me under the present procedure a complete waste of time and paper for that sort of document to be lodged with the court and it would be unfortunate if the opportunity were lost under this legislation to put something more effective in the statute to require a legal representative to discuss with the party whom he happens to be advising the possibility of a reconciliation. I appreciate that my amendment on its own leaves the rest of the clause in some grammatical error, but I hope that the point is clear. I beg to move.
The Lord Chancellor: My feeling about this provision is that legal representatives may or may not, according to the circumstances, think it right to discuss the various heads of this clause with clients. I have the impression that if one appears to force a completely general obligation of this kind, one may reduce it to fairly meaningless and rather mechanical action. That is my reservation in regard to accepting Amendment No. 122 in principle.
Lord Meston: I thank the noble and learned Lord for that indication. However, a mechanical action is possibly better than no action all. But that is a matter to which I may wish to return. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 123 to 125 not moved.]
Clause 11 agreed to.
Clause 12 [Directions with respect to mediation]:
[Amendment No. 126 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 127:
Page 7, line 17, leave out ("the parties to attend a meeting") and insert ("each of the parties to attend a meeting, either separately or together,").
The noble and learned Lord said: I fear that I must trouble the Committee at this stage with a group of amendments. It may be appropriate that, when moving Amendment No. 127, I speak also to Amendments Nos. 128 to 131, 133 to 139, 141 to 145A, 147 to 153, 155, 164 and 169 to 171. It looks to be an alarming group of amendments on the face of it, but I hope it will not take as long as its sheer bulk appears to suggest.
We have been assured throughout these proceedings that mediation will be voluntary. Unless it is voluntary it is not likely to be successful. Clause 12 appears to introduce a compulsory element. The parties do not have
1018
to avail themselves of mediation, but they can be required to attend a meeting to explain what mediation is available and provide them with,
"an opportunity to agree to take advantage of those facilities".
That is a somewhat puzzling concept. The horse cannot be made to drink but it may well be dragged to the water. That does not seem to be a very promising introduction to the mediation process.
Amendment No. 127 relates to the form of mediation following the direction from the court. Again we find this word which we discussed in earlier debates; that is, the word "meeting". Again it raises the question whether the mediation must take the form of a meeting. If so, will it be necessary for both parties to attend the meeting together or might the court give that direction?
The Committee will recollect, when we were discussing the information session, that we may envisage a case where violence has been present in the marriage and the wife may feel totally intimidated if she has to attend a meeting with her husband. The purpose of the amendment is to offer the court a greater range of options as to the form of mediation which it directs. I hope that it will be possible for the noble and learned Lord to take the view that that can only be to the good.
Amendment No. 129 is to the same purpose. Amendment No. 131 specifically envisages a situation where there has been violence in the marriage. We are troubled at any element of compulsion because it does not seem appropriate, where there has been violence in the marriage, that it should even be open to the court to compel a wife to attend a meeting with her husband or to participate in mediation. That does not mean that mediation would not be available to the parties. It would not prevent them from participating in mediation if they voluntarily chose to do so.
Amendment No. 140, which by some process which escapes me was included in an earlier grouping, is really directed to the same question. If a wife might he compelled to attend a meeting, then she may find the necessity for disclosing that there has been violence in the marriage. Surely there should then be an opportunity, in the absence of the other party, to explain that there has been violence in the marriage. I hope that the noble and learned Lord will not find it inconvenient to deal with that matter although for some reason it was, as I say, grouped with an earlier group of amendments.
As regards Amendment No. 136, it is not clear why, if the court chooses to give a direction, it has to specify who the mediator should be. Why should not the court give a direction that there should be mediation and leave the choice of mediator to the parties, with the proviso that if they cannot agree on a mediator they return to the court? This amendment is intended to give the court a wider range of options as to the kind of direction that it might give.
The present drafting of Amendment No. 137 empowers the court to require someone, presumably the mediator, to produce a report as to whether the parties have attended the meetings and what has been decided. It may well be that the people best able to report on that are the parties themselves. Certainly, they may wish to give a report if only commenting on the report produced

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by the mediator. The amendment is intended to make it clear that the court may require the report from the parties and entails that the parties themselves may report if they so wish.
All these amendments reflect anxieties which have been expressed by the Law Society, the Society of Labour Lawyers and the Women's Aid Federation. I hope that the noble and learned Lord will feel able to address them. I beg to move.
Lord Simon of Glaisdale: The noble and learned Lord said that mediation should be voluntary. I believe that he thereby reflected the general view in the Committee. I would like to put an alternative view. The noble Lord, Lord Irvine of Lairg, earlier quite accurately described mediation as the alternative to litigation and perhaps preliminary as well. What the mediator does is to examine with the parties the matters on which they are still at issue and tries to nudge them so that they see each other's point of view and, if possible, agree. If they cannot agree the matter has to go to adjudication with the mediator, as I have suggested, indicating how far the parties are in agreement and how far they are still at variance.
The noble and learned Lord postulated the difficulty, if it is made compulsory, of a wife who had suffered violence. But why should that be any more so than when they go before the judge? There the husband and wife confront each other and they may glare at each other. Nobody has suggested that adjudication should be voluntary. Indeed, mediation is, as I said, a preliminary alternative to adjudication. Is that very different from a process which the noble Lord, Lord Irvine, would know very well; namely, a summons for direction before a commercial or an Admiralty judge? There the matter can he considered in the presence of the parties without the judge or registrar coming to a final decision, but giving directions so as to narrow and define the issues and thereby shorten and facilitate the proceedings.
That being so, it seems to me that there are substantial advantages in saying that the mediation should be obligatory although, of course, the acceptance of the mediator's recommendation must remain voluntary. Appearance before the mediator seems a necessary preliminary and alternative step to adjudication and although the Chamber is almost a Whip's delight now, I ask the Committee to consider that alternative.
11.30 p.m.
The Lord Chancellor: The quality of the representation in the Chamber is perhaps what matters most and, leaving myself out of the count, I am sure that your Lordships will agree that that is very high.
The purpose of Clause 12 is to give the court a power to require parties to attend a meeting in connection with the possibility of mediation where it appears to the court that mediation is likely to be of some value and where the parties do not appear to have given that possibility sufficient attention in the view of the court. Most of the points made by the noble and learned Lord, Lord Archer, in this connection are worthy of consideration. The intention is that both parties should attend so that the court may see an opportunity for mediation in which
1020
both parties participate. Although I recognise that there may be situations where the court wants to try to persuade one of the parties particularly to become involved in mediation, the ordinary situation would be that the court, having seen the two parties before it, has taken the view that there should be mediation.
On the point about domestic violence, I incline to the view advanced earlier by the noble Lord, Lord Irvine, and I would trust the judge to use his discretion wisely and not try to hem it around with particular circumstances. Violence that occurred long ago in the past might not be particularly relevant, so I would not wish to produce too many conditions. That said, I am happy to consider the amendments, including Amendment No. 140.
Lord Coleraine: I should like to speak to Amendment No. 139 which stands in my name and which provides a definition of mediation in the following terms:
"In this section 'mediation' means the process of dispute resolution in marital proceedings whereby the parties, who agree and remain agreed that they believe that their marriage has broken down, voluntarily seek with the aid of a mediator to resolve by agreement any or all of their arrangements for the future"
I do not propose to speak to this at any length, but merely to give three reasons why a definition might be useful. Other more sophisticated arguments could be used. First, there is a great deal of confusion about the meaning of the word "mediation"; secondly, there is no definition in the Bill; and, thirdly, the Shorter Oxford English Dictionary is not helpful. The nearest definition that I can find to what we are considering is:
"to act as an intermediary; to intervene for the purpose of reconciling".
Clearly, that is not what we have in mind here and I should be glad to learn what my noble and learned friend thinks of that definition and, indeed, whether he thinks that a definition is needed at all.
Baroness Hamwee: I have four short drafting amendments in this group. The first two (Amendments Nos. 127A and 1 30A) merely suggest that a reference to mediation services might be more appropriate than "mediation facilities". Amendment No. 143A is designed to question the use of the word "amicably" in Clause 13(1) (a) and to suggest that a power to adjourn:
"for the purpose of enabling disputes to be resolved amicably",
is a little over-optimistic. The amendment suggests instead the words:
"without resort to the court".
The fourth of my amendments may be a little more serious. Clause 13(1) relates to the court's power to adjourn and refers to two purposes, which are given. Clause 13(2) provides:
"In determining whether to adjourn … the court shall have regard in particular to the need to protect the interests of any child of the family".
I have not quoted the whole of the subsection, because it provides:
"In determining whether to adjourn for either purpose".

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That seems to suggest that only the purposes set out in Clause 13(1) can be taken into account, or are material to that determination, whereas Clause 13(1) includes two purposes, but is not complete in describing them. Amendment No. 143A therefore may be a little more than just a drafting amendment.
The Lord Bishop of Oxford: Perhaps I may say a few words about Amendment No. 169 which is in my name. It is a new clause to insert:
"Such financial provision as may be necessary shall be made to ensure the readiness of bodies approved by the Lord Chancellor for the purposes of providing mediation services under this Act to carry out their functions under this Act".
We are all increasingly conscious of the heavy burden which mediation will have to bear if the Bill is finally approved. At the moment, of course, mediation services are funded largely voluntarily. Since it has become clear that government policy supports mediation traditional funders are tending to withdraw their support, assuming that franchises are already available, whereas they are unlikely to come into operation until 1999, and considering that the maintenance of local services should now be part of government responsibility.
Once the Act is implemented, of course, the core services are likely to be met, but until then some means must be found to ensure the financial viability of the local services until implementation. If the process is to work, mediation needs to be up and running. That, of course, needs financial support.
Lord Irvine of Lairg: I wish to speak briefly to Amendment No. 145 to Clause 13(1)(b) which provides for
"The court's power to adjourn … for the purpose of enabling disputes to be resolved amicably".
What the amendment proposes, and I hope that the noble and learned Lord will say that he will consider it, is that there should be added at the end of Clause 13(1)(b) the words:
"provided that no adjournment may be ordered by the court with a view to inducing a party who has declined to participate in mediation to do so".
The principle is that participation in mediation must be voluntary and not compulsory. I am concerned to ensure that there are no indirect qualifications on the generality of that proposition that mediation must be voluntary.
The subject of Clause 12, as the noble and learned Lord explained, is that the parties are to be informed about mediation facilities; they are also to be given an opportunity to avail themselves of those facilities. However, let us suppose that a party declines because, if a woman, she is intimidated by her husband; she fears that she will be unable to give a good account of herself, unrepresented, in front of the mediation; and not be able, perhaps, to speak properly for the children. Let us suppose that she would prefer to be legally represented in court. The distinguished family lawyer, Ruth Deech, who is also the Principal of St. Anne's College, Oxford, has called attention to the dangers that mediation holds for women and many agree with her. The short point that I make is that it must be made absolutely plain that
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under Clause 13(1)(b) a court has no power to grant an adjournment for the purpose of enabling a dispute to be resolved, in the statutory language, amicably—then I add through mediation—where there has been a prior refusal to participate in mediation.
I well understand that in the ordinary way a court can adjourn any proceedings if it believes that that will facilitate a private agreement between the parties. I am assuming a state of affairs in which there has been a prior refusal to participate in mediation, a position which a party is entitled to adopt because mediation is truly voluntary. If the court had any such power it would be enabled to seek to induce a party who has declined to participate in mediation to do so. I suggest that it should be made plain beyond doubt that no court may do that. I suggest that the amendment is necessary for that purpose. It would underscore the fact that no court pressure may be brought on individuals who have declined to participate in mediation to do so.
Lord Meston: I speak to Amendment No. 142 standing in my name and that of the right reverend Prelate the Bishop of Oxford. It would provide that:
"Mediation under this Act shall be conducted according to the Code of Practice of a body approved by the Lord Chancellor for the purposes of mediation".
There are now a large number of potential mediators in the field who are of varying calibre, training and background. A recent major advance has been the inauguration of the United Kingdom College of Mediators, which should ensure the attainment and maintenance of high standards and professional accountability.
Amendment No. 142 would ensure that the practice of mediation conducted under the provisions of the Bill is of the highest order by placing on the face of the Bill the requirement that such mediation be conducted according to the code of practice of bodies approved for the purposes of mediation by the noble and learned Lord the Lord Chancellor. The amendment has the support of National Family Mediation, which supports the principle of a code of practice on the face of the Bill. If mediation is a vital part of the operation of the Bill, and it will be vital for the divorcing parties and their families, it seems desirable that there is a statutorily approved code of practice. As the noble Lord, Lord Irvine of Lairg, said earlier today, one must bear in mind that public funds are being directed towards such bodies.
Amendments Nos. 135, 144, 150 and 153 are directed to a separate matter. Amendment No. 135 is concerned with the nature of Clause 12(4) and in some ways the point has already been touched on by the noble Lord, Lord Irvine of Lairg. Under Clause 12 the court may give a direction requiring the parties to attend a meeting to enable them to receive an explanation of the facilities available for mediation. Under the procedures of the Bill, that may well be the third time that they have been confronted with an explanation of mediation. I question how much direct pressure there should be on the parties to mediate if mediation is meant to be a voluntary process.
The remaining amendments are really concerned with the assumption that it is only through mediation that an amicable settlement can be produced. It is not to be

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assumed that lawyers are completely otiose in the framework of this Bill, particularly since the parties themselves will be seeking a settlement which is to be concluded within the existing framework of matrimonial finance and property law. Therefore I would propose that recognition is given to that point in Clause 13 by extending the reference to a resolution of the dispute to include resolution whether by mediation or otherwise.
11.45 p.m.
Baroness Faithfull: The noble Lord, Lord Meston, has spoken to Amendment No. 142 concerning a code of practice generally speaking. Amendment No. 141 requests a code of practice specifically relating to children, and this amendment is put forward by all the children's organisations. I thought I should make this clear to the noble Lord, Lord Meston, because it really lies up with his amendment.
The Lord Chancellor: This also is a varied collection of amendments. I have already tried to deal with the points of the noble and learned Lord, Lord Archer of Sandwell, on Clause 12. The purpose of Clause 12 is best explained by saying that the court may realise, once the matter comes before it, that the parties have not really understood what mediation can do for them in the particular circumstances. I personally am prepared to trust the court in this matter. In a sense the existence of Clause 12 and that power means that the court can adjourn to allow mediation to take place. think I understand that none of us would wish the court to use some oblique pressure but, on the other hand, if the court feels that the parties, notwithstanding our efforts to inform them, do not really appreciate or have understood the efforts that have been made or realise how mediation could help them in the circumstances of their particular case, the court should invite them to attend a meeting at which that would be clearly explained to them. In a sense it is just reinforcing the messages they have already got.
Of course I have very clearly heard what my noble and learned friend Lord Simon of Glaisdale says, but so far as I am concerned I think mediation involves a degree of positive contribution from both sides to the mediator in a way that is not necessarily the case in connection with compulsory adjudication. I believe the coercive power of the state is available in relation to the backing of a judge, a district judge, or indeed any other judge for that matter, in the exercise of his judicial power. The mediator is not in that capacity exactly. Therefore I personally prefer to regard mediation as voluntary. I think the courts should be given discretion, which I am confident they will use properly, to try to ensure that where mediation is appropriate the parties will understand what benefits it holds for them.
I will take advice, if I may, on the matters put forward by the noble Lord, Lord Meston, principally as drafting amendments. However, I should like to say something about the amendments dealing with mediation. I will certainly consider whether a definition would help. There is a lack of clarity among some about what is meant by "mediation" and it may well be that some definition of that kind may help. I am sad that The
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Shorter Oxford English Dictionary is not helpful in that connection. I shall obviously have to look elsewhere, as well as referring to my noble friend's amendment, to ascertain whether the definition is sufficiently comprehensive.
On the amendments of the right reverend Prelate, I must point out that I have to be pretty careful about taking responsibility for funding. I am very sympathetic to that and have a certain degree of support which may be available. I have indicated a seminar when we may look at the matter, which should take place early in the spring, but obviously the priorities of government have to be taken into account. I am personally very sympathetic to mediation. I know that it has been well supported and I should like to see such support continue from those who have believed in it.
My final point relates to another amendment tabled in the names of the right reverend Prelate and the noble Lord, Lord Meston, and also to the corresponding amendment of my noble friend Lady Faithfull. I believe that there is a good deal of merit in having a code of practice dealing with mediation. The discussions that we have had on the Bill during the earlier stages of the Committee have, I believe, emphasised that fact. Indeed, one could have a code of practice without attempting to regulate the profession as it develops. Such a code would be a useful way of signifying to members of the profession the subject matters that Parliament had in mind for them to address. In fact, a good number of those matters were mentioned during the course of our discussion.
Therefore, at present I should like to consider the amendments. I am inclined to the view that it would he better for the Lord Chancellor to have the responsibility of issuing—and, from time to time, revising—a code of practice in respect of mediation, both in relation to children and more generally. That would give me an opportunity, for example, to put reconciliation and the need for it to be considered into the forefront of the mind of the mediator. That is not to say that the mediator would carry that out, but the opportunity for referring to services which might help in that respect would be kept in view. I believe that one could do that without, as I said, regulating the profession. So far as I am concerned, the sanction would be that the Legal Aid Board would not arrange for public money to be used in a mediation service which did not comply with the code of practice. Of course, if the new college of mediators draws up a code of its own, I would wish to draw upon it very heavily. However, I believe that there is an advantage for Parliament to be able to express to the mediators from time to time, through the Lord Chancellor, what Parliament sees as the priorities for such an important process in the new way that we are trying to handle these delicate matters.
Those are my preliminary views in relation to the matters raised in the debate on this group of amendments. In the light of those considerations, I hope

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that Members of the Committee will enable me to bring forward on Report various matters dealing with at least some of the issues.
Lord Archer of Sandwell: I believe that we have had a valuable debate, nothwithstanding the approach of midnight. Unusually, I have the misfortune to differ from the noble and learned Lord, Lord Simon, who did not see why mediation was necessarily voluntary. I echo the views very respectfully of the noble and learned Lord the Lord Chancellor. Surely the answer is that the mediator has no power to make a mandatory order. He can seek only to bring parties to an agreement and he depends upon their participation in the process and upon their acceptance of what he recommends. I suspect that the noble and learned Lord is in a minority on that issue.
Having accepted that mediation should be a voluntary process, the noble and learned Lord the Lord Chancellor said that he would be prepared to trust the judges. With the exception of those provisions in the Bill which—if I may use an expression which has been used more than once in the course of our debates—send a signal that pressure may be placed upon people to participate in mediation, I would share the views of the noble and learned Lord. I would only point out that some of the proposed amendments actually widen the discretion of the judge. I hope that when he considers these matters he takes that into account.
I am grateful for his offer to consider the various amendments which have been put forward, and perhaps even he will welcome an opportunity to do so after a night's sleep. I cannot speak for other noble Lords who have moved amendments but, speaking for myself, I ask leave to withdraw my Amendment No. 127.
Amendment, by leave, withdrawn.
[Amendments Nos. 127A to 140 not moved.]
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Clause 12 agreed to.
[Amendments Nos. 141 and 142 not moved.]
Clause 13 [Adjournments]:
[Amendments Nos. 143 to 146 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 147 to 149:
Page 8, line 4, leave out ("made by the Lord Chancellor") and insert ("of court").
Page 8, line 3, at beginning insert ("If the court adjourns any proceedings connected with the breakdown of a marriage for either purpose").
Page 8, line 1, leave out subsection (3).
The noble and learned Lord said: My recollection is that these are drafting amendments which are reasonably self-evident in their application. I have left out subsection (3) as being unnecessary, and then put into the later lines enough to deal with the matter without the use of subsection (3). These are drafting amendments and with your Lordships' leave, in order to save time, I would move them en bloc.
On Question, amendments agreed to.
[Amendments Nos. 150 to 153 not moved.]
Clause 13, as amended, agreed to.
Clause 14 [Financial arrangements]:
[Amendment No. 153A not moved.]
Clause 14 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 two minutes before midnight.